EUROPEAN COMMUNITIES – ANTI-DUMPING MEASURE ON FARMED SALMON FROM NORWAY
Document: Report of the Panel
Date: 16 November 2007
Document codes: WT/DS337/R
Complainant: Norway
Respondent: EU
Third parties: Canada, China, Hong Kong, Japan, South Korea, U.S.
Dispute stage: Panel
Agreements cited: Art. 5, 5.1, 5.2, 5.3, 5.4, 2, 2.1, 2.6, 6.10, 2.2, 2.2.1, 2.2.2, 2.2.1.1, 6.8, Annex II, 3, 3.1, 3.2, 3.4, 3.5, 3.6  Anti-dumpingArt. VI:1  GATT 1994Art. 4.1, 9, 9.1, 9.2, 9.3, 9.4  Anti-dumpingArt. VI  GATT 1994Art. 6.2, 6.4, 6.5.1, 6.7, Annex I, 6.9, 12.2, 12.2.2  Anti-dumping

EUROPEAN COMMUNITIES – ANTI-DUMPING MEASURE
ON FARMED SALMON FROM NORWAY

Report of the Panel

I. INTRODUCTION
A. COMPLAINT OF NORWAY
1.1 At issue in this dispute is Council Regul ation (EC) No. 85/2006 of 17 January 2006
("Definitive Regulation") imposing a definitive anti -dumping duty and collecting definitively the
provisional duty imposed on imports of farmed sa lmon originating in Norway. Norway challenges
the WTO-consistency of several aspects of this Regula tion, in particular: (i) the identification of the
product under consideration; (ii) the definition of the domestic industry; (iii) the calculation of the
margin of dumping (including certain adjustments ma de to the cost of production when calculating
constructed normal value); (iv) th e findings of injury and causation; (v) the remedies imposed on
dumped imports; and (vi) certain procedural aspects of the investigation.
1.2 On 17 March 2006, Norway requested consultati ons with the European Communities ("EC")
with respect to the Definitive Regulation.1 On 27 March 2006, Norway submitted an addendum to its
request for consultations2. Consultations were held on 12 May 2006, but failed to resolve the dispute.
1.3 Norway requested the establishment of this Panel on 29 May 2006.3
B. ESTABLISHMENT AND COMPOSITION OF THE PANEL
1.4 At its meeting on 22 June 2006, the Dispute Se ttlement Body established a Panel pursuant to
the request by Norway in document , in accordance with Article 6 of the Dispute
Settlement Understanding (DSU).4
1.5 At that meeting, the parties to the dispute al so agreed that the Panel should have standard
terms of reference. The terms of reference are, therefore, the following:
"To examine, in the light of the relevant provisions of the covered agreements cited
by Norway in document , the matter referred to the DSB by Norway in
that document, and to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those agreements."
1.6 On 27 July 2006, Norway requested the Directo r-General to determine the composition of the
Panel, pursuant to paragraph 7 of Article 8 of the DSU. This paragraph provides:
"If there is no agreement on the panelists within 20 days after the date of the
establishment of a panel, at the request of either party, the Director-General, in
consultation with the Chairman of the DSB and the Chairman of the relevant Council
or Committee, shall determine the com position of the panel by appointing the
panelists whom the Director-General consid ers most appropriate in accordance with
any relevant special or additional rules or procedures of the covered agreement or
covered agreements which are at issue in th e dispute after consulting with the parties
to the dispute. The Chairman of th e DSB shall inform the Members of the
composition of the panel thus formed no later than 10 days after the date the
Chairman receives such a request."
1.7 On 2 August 2006, the Director-General accordingly composed the Panel as follows:

1 WT/DS337/1.
2 WT/DS337/1/Add.1.
3 WT/DS337/2.
4 WT/DS337/3.

Chairman: Mr. José Graça Lima
Members: Ms. Luz Elena Reyes de la Torre
 Mr. Donald Greenfield

1.8 Canada; China; Hong Kong, China; Japan; Korea; and the United States reserved their
third-party rights.
C. P
ANEL PROCEEDINGS
1.9 The Panel met with the parties on 12-13 Decemb er 2006 and 6-7 February 2007. The Panel
met with third parties on 13 December 2006.
1.10 On 4 August 2006, Norway submitted a letter to the Panel requesting it to establish special
procedures to protect business confidential information ("BCI") and to use its powers under Article 13
of the DSU to seek certain information on the record of the EC's anti-dumping proceeding. In this
latter regard, Norway requested that the Panel seek confirmation from the EC regarding the contents
of the non-confidential record of the investigatio n, and a copy of any non-confidential record
documents that Norway did not possess, as well as discl osure of the entire confidential record or at
least that part of the confidential record relevant to Norway's claims described in the letter of
4 August 2006.
1.11 The Panel rejected Norway's request for it to seek information on 1 September 2006,
deciding, after careful consideration, that, for the time being, it was not "necessary and appropriate" to
seek the information requested by Norway. The Pa nel indicated it would consider any such requests
in the future, to the extent expressly made by Norw ay, after it had at least reviewed the first written
submissions of the parties. No such request to seek information pursuant to Article 13 of the DSU
was subsequently received by the Panel. Th e Panel adopted additional working procedures
concerning business confidential information on 20 September 2006.
1.12 By fax of 25 October 2006, the Panel received an unsolicited submission from
Dr. Martin Jaffa of Callander McDowell, a UK c onsulting group involved in "Strategic Planning and
Marketing for the Acquaculture Industry". A prev ious unsolicited submission from Dr. Jaffa had
been received on 6 July 2006, before this Panel was composed, and a third unsolicited submission was
received on 12 February 2007, after the second meeting of the Panel with the parties.
1.13 On 4 December 2006, the Panel transmitted copies of the first two unsolicited submissions to
the parties and third parties, and provided them w ith an opportunity to comment, during the course of
the first meeting of the Panel with the parties and third party session, on how the Panel should deal
with these submissions. Having considered the views expressed by the parties and third parties, the
Panel concluded that it would cons ider views expressed in the unsolicited submissions to the extent
that parties decided to adopt the views expressed th erein in their own submissions and arguments to
the Panel.
II. FACTUAL ASPECTS
2.1 The anti-dumping investigation underlying this dispute was initiated on 23 October 2004 on
the basis of a complaint lodged by the EU Salmon Producers' Group. The investigation of dumping
and injury covered the period from 1 October 2003 to 30 September 2004 ("investigation period"). 5
With respect to trends relevant for the injury assessment, data for the period from 1 January 2001 to

5 Commission Regulation (EC) No. 628/2005 of 22 April 2005 imposing a provisional anti-dumping
duty on imports of farmed salmon originating in Norway (Official Journal, L104/5, published 23 April 2005)
(hereinafter "Provisional Regulation"), Exhibit NOR-9, para.5.

30 September 2004 was analyzed ("period considered"). 6 The product concerned was defined as
"farmed (other than wild) salmon, whether or not filleted, fresh, chilled or frozen. The definition
excludes other similar farmed fish products such as large (salmon) trout, biomass (live salmon) as
well as wild salmon and further processed types such as smoked salmon". 7 Farmed salmon produced
and sold on the domestic market of Norway, as well as farmed salmon produced and sold in the EC by
the EC industry, were concluded to have the sa me basic physical characteristics and uses and
therefore considered to be alike.8
2.2 The Commission, the investigating authority in the EC, based its analysis of dumping on a
sample of companies stated to comprise the te n largest Norwegian exporting producers, and to
represent almost 80 per cent of the export volume to the EC of all co-operating exporting producers. 9
The complaining EC producers, whose production was stated to represent around 90 per cent of total
EC production of the product c oncerned, constituting a major pr oportion of EC production, were
deemed to constitute the domestic industry.10 A sample of domestic producers was selected, based on
the largest representative volume of production that c ould reasonably be investigated within the time
available, and the analysis of injury was based on da ta verified for the sample with respect to some
indicators, and data collected for the EC industry as a whole for other indicators.11
2.3 Following preliminary affirmative determina tions of dumping, injury, and causal link,
provisional anti-dumping measures, in the form of ad valorem duties based on a non-injurious price,
ranging from 6.8 per cent to 24.5 per cent, were im posed on imports of farmed salmon from Norway
on 22 April 2005. 12 These measures were modified by an amendment dated 30 June 2005, which
replaced the ad valorem duties with minimum import prices ("MIPs") for five presentations of farmed
salmon.13
2.4 Following the Provisional Regulation and the amendment, disclosures were made to
interested parties, comments were submitted, and pa rties so requesting were given opportunity to be
heard. Further information was sought, and verifi cation was undertaken of certain information.
Following affirmative determinations of dumping, injury and causal link, definitive anti-dumping
measures were imposed on 17 January 2006. Th e conclusions in the Provisional Regulation
concerning product concerned and like product were confirmed. 14 Other findings in the Provisional
Regulation were further examined and either modi fied or confirmed based on the information and
arguments considered. The definitive measures took th e form of a system of MIPs and fixed duties,
both calculated based on non-injurious prices, for six presentations of farmed salmon.15

6 Id.
7 Id. at para. 10.
8 Id. at para. 14.
9 Id. at para. 17.
10 Id. at para. 45.
11 Id. at para. 49.
13 The five presentations were: "Whole fish, fresh, chilled or frozen"; "Gutted, head-on, fresh chilled or
frozen"; "Other (including gutted, head-off,) fresh, chilled or frozen"; "Whole fish fillets and fillets cut in pieces,
weighing more than 300 g per fillet, fresh, chilled or frozen"; and "Other whole fish fillets and fillets cut in
pieces, weighing 300 g or less per fillet, fresh, chilled or frozen." Commission Regulation (EC) No. 1010/2005
of 1 July 2005 (Official Journal, L170/32, published 1 July 2005), amending Provisional Regulation, Exhibit
NOR-10, para. 7 and Article 1.
14 Council Regulation (EC) No. 85/2006 of 17 January 2006 imposing a definitive anti-dumping duty
and collecting definitively the provisional duty imposed on imports of farmed salmon originating in Norway
(Official Journal of the European Union, L15/1, published 20 January 2006) (hereinafter "Definitive
Regulation"), Exhibit NOR-11, para. 8
15 Id., paras. 128, 129, 136, and Article 1.

III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
A. N
ORWAY
3.1 In its first written submission, Norway requested the Panel to find that:
 (i) in its definition of the product under consideration, the EC violated:

(a) Articles 2.1 and 2.6 of the Anti-Dumping Agreement, because it defined the product
under consideration to include a range of products that are not all "like"; in
consequence, the EC also violated:
• Articles 5.1 and 5.4 of the Anti-Dumping Agreement by initiating an
investigation on the basis of a flawed "product" determination;

• Article 2.1 of the Anti-Dumping Agreement by making dumping
determinations on the basis of a flawed product determination; and,

• Articles 3.1, 3.2, 3.4, 3.5 and 3.6 of the Anti-Dumping Agreement,
because it examined injury to a domestic industry defined on the basis
of a flawed product determination;

 (ii) in its definition of the domestic industry, the EC violated:

(a) Article 4.1 of the Anti-Dumping Agreement , because it impermissibly excluded
several categories of domestic producers from the definition of the domestic industry;
in consequence, the EC also violated:
• Article 5.4 of the Anti-Dumping Agreement because it initiated an
investigation without establishing that an application for initiation was
made by or on behalf of a properly defined domestic industry; and

• Articles 3.1, 3.4 and 3.5 of the Anti-Dumping Agreement because it
failed to make an objective examination of injury with respect to a
properly defined domestic industry and because it improperly engaged
in sampling of the domestic industry;

 (iii) in its dumping determination, the EC violated:

(a) Article 6.10 of the Anti-Dumping Agreement , because it failed to include in the
sample the Norwegian producers and exporters with the largest percentage volume of
exports to the EC;
(b) Articles 2.2 and 2.2.1 of the Anti-Dumping Agreement, because it failed to determine
that below cost sales were made at prices that did not permit the recovery of costs
within a reasonable period of time;
(c) Articles 2.2 and 2.2.1.1 of the Anti-Dumping Agreement, because it made a number of
improper adjustments to the costs of pr oduction and SG&A costs of a number of
investigated producers;

(d) Article 2.2.2 of the Anti-Dumping Agreement, because it failed to base the amounts
for SG&A costs and for profits on actual data pertaining to sales in the ordinary
course of trade because of the low volume of the sales;
(e) Article 6.8 and Annex II(3) and II(6) of the Anti-Dumping Agreement , because it
improperly used facts available to determine normal value for one sampled company;
and,
(f) Articles 6.8 and 9.4, an d Annex II(1), of the Anti-Dumping Agreement , because it
failed correctly to determine margins of dumping for non-sampled companies; in
particular:
• Article 9.4, because, for "cooperating" non-sampled companies, it failed
to base its determination of the weighted average dumping margin on
the definitive dumping margins determined for the sampled producers;

• Article 9.4, because, for "cooperating" non-sampled companies, it failed
to exclude a margin established using facts available in its
determination of the weighted average dumping margin;

• Article 9.4, because it incorrectly assigned to non-sampled companies
that allegedly "did not cooperate or did not make themselves known"
the highest dumping margin established for a sampled producer;

• Article 6.8 and Annex II(1) because it had inappropriate recourse to
"facts available" in establishing the dumping margin for non-sampled
companies that "did not cooperate or did not make themselves known";

 (iv) in its injury determination, the EC violated:

(a) Articles 3.1, 3.2 and, in consequence, 3.5 of the Anti-Dumping Agreement in its
examination of the volume of dumped imports;
(b) Articles 3.1, 3.2 and, in consequence, 3.5 of the Anti-Dumping Agreement in its
examination of price undercutting; and,
(c) Articles 3.1 and 3.4 of the Anti-Dumping Agreement, in its evaluation of price trends
affecting EC producers;
 (v) in its causation determination, the EC violated:

(a) Articles 3.1 and 3.5 of the Anti-Dumping Agreement , because it failed properly to
assess the injurious effects of the EC industry's increased cost of production; and,
(b) Articles 3.1 and 3.5 of the Anti-Dumping Agreement , because it failed properly to
assess the injurious effects of imports of salmon from Canada and the United States;
 (vi) in its determination of the form of the anti-dumping measures, the EC violated:

(a) Article VI:2 of the GATT 1994, and Articles 9.1, 9.2, 9.3 and 9.4(ii) of the Anti-
Dumping Agreement, by imposing minimum import prices that exceed normal value
and that are not limited to the margin of dumping; and,

(b) Article VI:2 of the GATT 1994, and Articles 9.1, 9.2 and 9.3 of the Anti-Dumping
Agreement by imposing fixed duties that exceed the margin of dumping for certain
producers;
 (vii) in its conduct of the anti-dumping investigation, the EC violated:

(a) Articles 6.4 and 6.2 of the Anti-Dumping Agreement , because it failed to ensure an
adequate opportunity for interested parti es to see all non-confidential information in
the record of the investigation;
(b) Articles 6.9 and 6.2 of the Anti-Dumping Agreement, because it failed to inform the
interested parties of the essential facts that formed the basis for the decision to impose
definitive anti-dumping measures; and,
(c) Articles 12.2 and 12.2.2 of the Anti-Dumping Agreement, because it failed to provide
a reasoned and adequate explanation in support of its findings and conclusions.
3.2 Norway requested that the Panel recommend that the Dispute Settlement Body request the EC
to bring the contested measure into conf ormity with its obligations under the Anti-Dumping
Agreement and the GATT 1994.
3.3 In addition, Norway requested the Panel to make use of its discretion under the second
sentence of Article 19.1 of the DSU by suggestin g ways in which the EC could implement the
recommendations and rulings of the DSB. Given the nature and scope of the EC's violations of the
Anti-Dumping Agreement and of the GATT 1994, Norway believes that the EC's initiation of the
investigation, and the measures resulting from it, are vitiated and deprived of legal basis.
Consequently, Norway requested the Panel to sugg est that the EC implement the recommendations
and rulings of the DSB by withdrawing the contested measures.
B. E
UROPEAN COMMUNITIES
3.4 In its first written submission, the European Communities requested the Panel to:
(a) reject all of Norway's claims and arguments, finding instead that, with respect to each
of them, the EC acted consistently with all its obligations under the Anti-Dumping
Agreement, the GATT 1994 and the c overed agreements, including (non-
exhaustively) as set out in the following paragraphs.
(b) reject Norway's claims that the EC acted inconsistently with Articles 2.1, 2.6 and
(consequently) Articles 2.1, 3 and 5 of th e Anti-Dumping Agreement when selecting
the product concerned.
(c) reject Norway's claims that the EC act ed inconsistently with Article 4.1 and
(consequently) Articles 3 and 5 of the An ti-Dumping Agreement when determining
the domestic industry.
(d) reject Norway's claims that the EC acted inconsistently with Articles 5.1 and 5.4 of
the Anti-Dumping Agreement when initiating the original investigation.
(e) reject Norway's claims that the EC acted inconsistently with the following provisions
of the Anti-Dumping Agreement:

• Article 6.10 in its selection of No rwegian producers and exporters for
examination;

• Articles 2.2 and 2.2.1 in regard to the determination of below-cost sales;

• Article 2.2.2 in its determination of SG&A and profits in regard to sales
made in low volumes;

• Article 6.8 and Annex II, paragrap hs 3 and 6 in regard to the
determination of normal value of one investigated company; and

• Articles 6.8 and 9.4, and Annex II, paragraph 1, in regard to the margins
of dumping calculated for non-sampled companies.

(f) reject Norway's claims that, in its injury determination, the EC acted inconsistently
with :
• Articles 3.1, 3.2 and, in consequence, Article 3.5 of the Anti-Dumping
Agreement in its examination of the volume of dumped imports;

• Articles 3.1, 3.2 and, in consequence, Article 3.5 of the Anti-Dumping
Agreement in its examination of price undercutting; and

• Articles 3.1 and 3.4 of the Anti-Dumping Agreement in its evaluation of
price trends affecting EC producers.

(g) reject Norway's claims that, in its causation determination, the EC acted
inconsistently with :
• Articles 3.1 and 3.5 of the Anti-Dumping Agreement because the EC
did not fail to properly assess the injurious effects of the EC industry's
increased cost of production; and

• Articles 3.1 and 3.5 of the Anti-Dumping Agreement because the EC
did not fail to properly assess the injurious effects of imports of salmon
from Canada and the United States.

(h) reject Norway's claims that its anti-dumping measures violated Article VI:2 of
GATT 1994 and Articles 9.1, 9.2, 9.3 and 9.4(ii) of the Anti-Dumping Agreement by
imposing minimum import prices exceeding the normal value and not limited to the
dumping margin.
(i) reject Norway's claims that its anti-dumping measures violated Article VI:2 of
GATT 1994 and Articles 9.1, 9.2, and 9.3 of the Anti-Dumping Agreement by
imposing fixed duties that exceeded the dumping margin.
(j) reject Norway's claims that the EC acted inconsistently with Articles 6 and 12 of the
Anti-Dumping Agreement.
(k) reject Norway's claims that it infringed Article 2, and in particular Article 2.2.1.1 of
the Anti-Dumping Agreement when calcula ting the costs of the investigated
companies for the purpose of determining their normal values.

IV. ARGUMENTS OF THE PARTIES
4.1 The arguments of the parties are set out in thei r written and oral submissions to the Panel, and
in their answers to questions. The parties' arguments, as summarised by them pursuant to
paragraph 12 of the Panel's working procedures, are set forth in this section. The full non-confidential
text of Norway's submissions can be dow nloaded from the Government's web site.
16 The full non-
confidential text of the submissions of the Eur opean Communities can be downloaded from the EC's
web site.17
A. FIRST WRITTEN SUBMISSION OF NORWAY
4.2 The following summarizes Norway's arguments in its first written submission.
1. Introduction
4.3 Adjusting to increased international competition is part of the day-to-day challenges faced by
enterprises throughout the world in a system of liber alised international trade. However, it has long
been evident that a small part of Irish and UK producers of salmon has been unwilling or unable to
adapt to the competitive environment of salmon fa rming, and has not responded to the need for
structural changes. Instead, these producers have preferred to hide behind trade remedy measures that
unjustly penalize imports from more efficient foreign producers. The contested anti-dumping
measures have been imposed on the basis of an inves tigation by the EC authorities that falls far short
of the standards set out in WTO law.
4.4 What the EC mistakenly calls "the domestic industry" supporting and cooperating in the anti-
dumping investigation in this case produced as little as 18 000 tonnes of salmon during the IP, less
than 3 per cent of annual consumption on the EC mark et. By contrast, the entire salmon industry in
UK and Ireland produced 190 903 tonnes in 2003
18. In essence, the "domestic industry" as defined by
the EC for this particular case represents, in real terms, around 10 per cent of the total production in
the UK and Ireland. The share of these producers h as been steadily declining, as most other EC
producers have adapted to market realities and have become more competitive. Rather than adapt to
competition, a minority of EC producers has preferred to clamour for restrictions on trade.
4.5 The European Communities have repeatedly im posed restrictions on imports of Norwegian
Salmon in one form or another (including anti-dum ping and countervailing duty measures, as well as
safeguards). For the past 17 years, hardly a year has gone by without some kind of restriction in
place.
4.6 The previous anti-dumping and counterva iling measures were revoked in May 2003.
19 Fo r
the first time since 1989, Norway's trade with the EC in salmon products was free of all forms of trade
protection or threats of protection. However, free tr ade was short-lived. Only a few months later, in
February of 2004, the Governments of Ireland and the United Kingdom petitioned the EC to introduce
safeguard measures against imports of salmon. In August 2004, the EC imposed provisional

16 See, http://www.regjeringen.no/nb/dep/ud/tema/Ha ndelspolotikk/WTO/WTO---Laksesaken/Norges-
innleg-i-laksesaken-mot-EU-i-WTO.html?id=457526&epslanguage=NO.
17 See, http://trade.ec.europa.eu/wtodispute/search.cfm?code=2.
18 In the Definitive Safeguard Regulation, para. 51, the EC gives total EC production of 190,903 tonnes
in 2003. In contrast, the Definitive Regulation, para. 40, gives the total production by the EC domestic industry,
as defined by the EC in this dispute, as just 18,000 tonnes during the IP.
19 Council Regulation (EC) No. 930/2003 of 26 May 2003 terminating the anti-dumping and anti-
subsidy proceeding on imports of farmed Atlantic salmon originating in Norway and the anti-dumping
proceeding concerning imports of farmed Atlantic salmon originating in Chile and the Faeroe Islands
("Termination Regulation"). Exhibit NOR-5

safeguard measures 20 that were confirmed by definitive measures in February 2005. 21 Chile and
Norway immediately sought consultations with th e EC regarding the definitive safeguard measures. 22
These unjustifiable measures were withdrawn by the EC on 23 April 2005 – just 2 months after their
adoption.23 However, on the very same day, the EC seamlessly transitioned from safeguard to
provisional anti-dumping measures, which were im posed only on imports from Norway with an
average rate of 22.5 per cent.24 A leading official in the Commission had on 19 November 2004, prior
to the reception of the questionnaires from No rwegian producers, predicted this finding. 25 T h i s
dispute concerns the definitive version of those measures, which were imposed on 17 January 2006.26
4.7 Thus, constant protection for domestic producers, and constant restric tions on international
trade, has been the norm. Norwegian producers have had to face those restrictions, and have adapted
to them by becoming increasingly more efficient producers over the years: today, the Norwegian
industry produces five times more per employee than the Scottish complainants, and has cost of
production levels far below those of the sampled Scottish companies in this case.
4.8 To be able to justify the imposition of anti-dumping measures in this case, the EC has
disregarded, misrepresented or refused to take into account the facts an d resorted to flawed
constructed values, and it has failed to provid e reasoned and adequate explanations of its
determinations. The EC has thereby published a regulation that is so thin on facts that a reader has no
basis to understand how the EC arrived at the determinations therein.
4.9 Virtually every aspect of the Definitive Regul ation involves an inconsistency with WTO
rules. To begin, the EC did not even properly establish a right to initiate the investigation consistently
with the Anti-Dumping Agreement. The investigati on should, therefore, never have been opened.
Further, two of the fundamental building blocks fo r the entire investigation – the "product" and the
"domestic industry" – are flawed, and defined in mutually inconsistent terms. Moreover, the
determinations of dumping, injury and causation ar e tainted by numerous WT O-inconsistencies. The
EC, therefore, failed to establish a right to impose the contested anti-dumping measures.
Additionally, the anti-dumping measures it imposed do not respect the WTO rules regarding the
maximum level of duties.
4.10 On top of these substantive violations, the EC also paid scant regard to the requirements of
transparency set out in the Anti-Dumping Agreement. The EC provided Norw ay with an incomplete
copy of the non-confidential record of the investig ation. It also failed to disclose the essential facts

20 Commission Regulation (EC) No 1447/2004 of 13 August 2004 imposing provisional safeguard
measures against imports of farmed salmon and Corrigendum to Commission Regulation (EC) No 1447/2004.
Exhibit NOR-6.
21 Commission Regulation (EC) No 206/2005 imposing definitive safeguard measures against imports
of farmed salmon and Commission Regulation (EC) No 580/2005 of 14 April 2005 amending Regulation EC
No 206/2005 ("Definitive Safeguard Regulation"). Exhibit NOR-7.
22 WT/DS326/1 (Chile) and WT/DS328/1 (Norway).
23 Commission Regulation (EC) No 627/2005 of 22 April 2005 revoking Regulation (EC) No 206/2005
imposing definitive safeguards measures against imports of farmed salmon. Exhibit NOR-8.
24 Commission Regulation (EC) No. 628/2005 of 22 April 2005 imposing a provisional anti-dumping
duty on imports of farmed salmon originating in Norway ("Provisional Regulation") (Official Journal, L104/5,
published 23 April 2005), as amended by Commission Regulation (EC) No. 1010/2005 of 1 July 2005 (Official
Journal, L170/32, published 1 July 2005). Exhibits NOR-9 and NOR-10.
25 Intrafish News, "EC to decide on Norwegian salmon dumping case", 19 November 2004. Exhibit
NOR-12.
26 Council Regulation (EC) No. 85/2006 of 17 January 2006 imposing a definitive anti-dumping duty
and collecting definitively the provisional duty imposed on imports of farmed salmon originating in Norway.
("Definitive Regulation") (Official Journal of the European Union, L15/1, published 20 January 2006). Exhibit
NOR-11. The Definitive Regulation confirms, and incorporates reasoning from, the Provisional Regulation.

that formed the basis for its decision to impose definitive measures. In essence, the EC's disclosure of
the essential facts involved the provision of a prepar atory draft of the Definitive Regulation. In
principle, that draft should have disclosed the es sential facts because these must be addressed and
explained in published determinati ons. However, contrary to the requirements of the Anti-Dumping
Agreement, the Definitive Regulation is characte rized by a complete failure to explain "the
evidentiary path" that led the EC to its findings and conclusions.
27 In short, the EC does not explain
how the evidence in the record supports its determin ations. As a result, it is extremely difficult –
often impossible – for Norway to understand on what basis the EC reached its conclusions.
4.11 Norway regrets that it has been compelled to bri ng so many claims in this dispute. However,
although many in number, each of Norway's claims is an important stepping-stone to ensure that the
EC affords WTO-consistent treatment to Norway 's trade in salmon products. Given the chronic
character of the EC's protection of its salmon industry, Norway wishes to avoid a situation where
issues are left unresolved prior to implementation of the Panel's findings and recommendations. Were
the Panel to exercise judicial economy with respec t to certain claims, this could have important
repercussions for the course of EC's implementati on. Norway, therefore, respectfully requests the
Panel to make findings on each and every claim ma de. Norway believes that the nature and number
of the EC's violations vitiate the entire investiga tion and the measures resulting from it. As a result,
Norway believes that the EC must withdraw the measure.
2. Summary of Norway's Claims
4.12 Broadly speaking, Norway's claims can be groupe d under the headings below. However, for
the full extent of claims and arguments we refer to the brief:
(a) Improper definition of the pr oduct under consideration, a nd improper initiation of the
investigation (Section III of the brief)
4.13 The EC improperly defined the scope of the product under consideration. The EC determined
that a group of different salmon products – includi ng everything from whole fish to small skinned
fillets – constitute a single product. However, the EC 's determination fails to demonstrate, in view of
the differences between these products, that they constitu te a single product. There are no facts in the
regulation supporting any of the assertions therein, just as there are no facts in the record in support of
EC's determinations.
4.14 The EC, concluded, quite correctly, that these different products are produced by two
different industries, namely, on the one hand, the "salmon growers" and, on the other hand, the
"downstream processing industry" producing fillets for which the product of the salmon growers is
the input product. Importantly, the EC found that the EC fish farming industry and the EC processing
industry have conflicting interests.
28 Two GATT panel reports, the panels in US – Wine and Grapes29
and Canada – Beef30, dealt with the distinction between raw and processed agricultural products, and
both concluded that the different production processes meant that they were different products.
Furthermore, in US – Lamb , the Appellate Body confirmed that , in determining whether "two
Articles are separate products", the authorities should examine the production process used to
manufacture the two articles. 31 Thus, the fact that two produc ts result from separate production

27 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), para. 97.
28 Definitive Regulation, para. 114. This statement identifies the EC salmon processing industry as a
"users industry", which is distinguished from the EC domestic industry.
29 GATT panel report, US – Wine and Grapes, para. 4.2.
30 GATT panel report, Canada – Beef, para. 5.3.
31 Appellate Body Report, US – Lamb, footnote 55.

processes indicates that those products are not produced by a single industry and are not a single
product.32
4.15 The product scope is of fundamental importanc e to the investigation because it determines:
which domestic industry must support the initiation of an investigation; which products are compared
in making a dumping determination; and which domest ic industry must be examined in an injury
determination. Improper determin ation of the product scope, ther efore, has profound consequences
for an investigation.
4.16 By improperly defining the "product", the EC violated Articles 2.1 and 2.6 of the Anti-
Dumping Agreement , because it defined the product under c onsideration to include a range of
products that are not all "like". In consequence, the EC also violated Articles 5.1 and 5.4 of the Anti-
Dumping Agreement by initiating an investigation on the basi s of a flawed "product" determination;
Article 2.1 of the Anti-Dumping Agreement by making dumping determinations on the basis of a
flawed product determination; and Articl es 3.1, 3.2, 3.4, 3.5 and 3.6 of the Anti-Dumping Agreement,
because it examined injury to a domestic industr y defined on the basis of a flawed product
determination – with a mismatch between the pro duct produced by the domestic industry (as defined
by the EC) and the "product under consideration".
(b) Flawed definition of domestic industry and in correct use of sampling for injury purposes
(Section IV of the brief)
4.17 Having defined the "product" – albeit improperly – to include a range of products from whole
fish to small filleted products, the EC was obliged to include the producers of all these products in the
domestic industry. The EC did not do so. Instead, it defined the industry to include the growers of
farmed salmon that produce whole/gutted fish. It excluded the entire EC processing industry that
produces filleted products, but does not grow salmon. There is, therefore, a fatal mismatch between
the determinations of the "product" and the "domestic industry".
4.18 The EC has a large processing industry that transforms " several hundred thousand tonnes" of
farmed salmon annually.33 This industry has been excluded from the domestic industry, even though
the filleted products it produces are part of the inves tigated product. In addition, the EC improperly
excluded several other entire categories of salmon gr owers. The EC excluded entirely the following
categories of producer from the industry:
• related producers;
• producers of filleted products that do not grow salmon;
• producers that did not expressly support the Complaint (i.e. silents);
• producers that exclusively produced certain types of salmon;34
• producers that fell into receivership during the IP;35
• producers/production of organic salmon;36 and,
• producers that did not provide data in the fo rmat requested or were otherwise deemed
not to have cooperated fully.37

32 See, in particular, paragraphs 148 – 155 of Norway's First Written Submission.
33 Letter from Syndicat Saumon et Truite Fumés to the EC, 26 May 2005. Exhibit NOR-17. Unofficial
translation from French original.
34 Definitive Regulation, para. 39.
35 Definitive Regulation, para. 39.
36 Definitive Regulation, para. 43.
37 Definitive Regulation, para. 39.

4.19 After all these exclusions, the entire EC i ndustry comprised just 15 small salmon growers
(employing 221 persons), all of which petitioned fo r the initiation of an investigation. The EC
thereby defined the domestic industry incorrectly and in a manner that skewed the investigation. In
consequence, the EC failed to establish that the pr oper domestic industry supported the initiation of
the investigation; and it failed to make an injury determination for the proper industry.
4.20 Assuming that the "product" scope of the investigation is properly defined (quod non), the EC
has violated Article 4.1 in its definition of the "domestic industry".
4.21 The comprehensive character of an injury determin ation is consistent with the fact that it is
one of the pre-conditions for the imposition of anti-dumping duties, which protect all domestic
producers. An authority cannot impose duties unless th at is warranted by the need to protect these
producers, as a whole, and not just a select group of them.
4.22 The Appellate Body reached the same conclusion in US – Hot-Rolled Steel . In that dispute,
the USITC divided the domestic industry into two parts: production for the merchant market and
production that is captively consumed. The USITC examined aggregate data for both parts of the
industry. It also conducted a "selective examination" of the merchant market, but made no equivalent
examination of the captive market.
38 The Appellate Body held that, under Article 3, "[t]he
investigation and examination must focus on the totality of the 'domestic industry' and not simply on
one part, sector or segment of the domestic industry ."39 It found that the " selective" examination of
just "one part" of an industry is not "objec tive" because the authorit y could choose the worst
performing part of the industry for examination, thereby making an injury determination "more
likely".40 Thus, an investigating authority cannot singl e out particular parts of the domestic industry
for investigation, to the exclusion of other parts. However, this is precisely what the EC did.
4.23 The EC moreover did not even conduct an injury analysis of its improperly defined domestic
industry. Instead, it selected a very small, non-representative sample. Article 3 of the Anti-Dumping
Agreement does not allow an investigating authority to use sampling for injury analysis purposes. In
any event, even if sampling were permitted – quod non -- an authority cannot, purposefully, structure
its sample of the domestic industry in such a way th at it fails to examine the situation of identifiable
categories of producers and segments of the industry.
4.24 The EC thus violated Article 4.1 of the Anti-Dumping Agreement, because it impermissibly
excluded several categories of domestic producers fr om the definition of the domestic industry. In
consequence, the EC also violated: Article 5.4 of the Anti-Dumping Agreement because it initiated an
investigation without establishing that an applica tion for initiation was made by or on behalf of a
properly defined domestic industry; a nd Articles 3.1, 3.4 and 3.5 of the Anti-Dumping Agreement
because it failed to make an objective examination of injury with respect to a properly defined
domestic industry and because it improperly engaged in sampling of the domestic industry.
(c) The EC's dumping determinations violate the Anti-Dumping Agreement in numerous respects
(Sections V and XI of the brief)
4.25 First, the EC's sample of ten Norwegian producer s does not cover the largest percentage of
the volume of exports to the EC, because the EC excluded from the sample all non-producing
exporters as well as two large producers. The samp le, therefore, covers a far smaller volume of
exports than it should have pursuant to Article 6.10 of the Anti-Dumping Agreement.

38 Appellate Body Report, US – Hot-Rolled Steel, para. 214.
39 Appellate Body Report, US – Hot-Rolled Steel, para. 190. Emphasis added.
40 Appellate Body Report, US – Hot-Rolled Steel, para. 196.

4.26 Second, in deciding that normal value should be co nstructed, the EC failed to determine that
below-cost sales were made at prices that did not permit the recovery of all costs within a reasonable
period of time, as required by Article 2.2.1 of the Anti-Dumping Agreement.
4.27 Third, in constructing normal value, the EC faile d to calculate amounts for SG&A costs and
for profits on the basis of actual data pertaining to sales in the ordinary course of trade. The Appellate
Body in EC – Tube or Pipe Fittings addressed squarely whether actual data can be rejected under
Article 2.2.2 because it pertains to a low volume of domestic sales. It ruled that an investigating
authority must use "actual SG&A a nd profit data for sales in the ordinary course of trade" if such
sales exist, irrespective of the volume of the sales .41 In other words, it rejected the view that actual
data from a low volume of domestic sales is not a reliable basis for calculating SG&A costs and
profits, provided, of course, that the low volume i nvolves sales in the ordinary course of trade.
Contrary to the Appellate Body's interpretation of Article 2.2.2 in EC – Tube or Pipe Fittings, and the
EC's own arguments in that dispute, the EC wr ongly rejected actual sales data because of the low
volume of those sales.
4.28 Fourth, the EC acted inconsistently with Article 6.8 and Annex II of the Anti-Dumping
Agreement because it had recourse to facts available in constructing normal value for one of the
sampled producers, without respecting the conditions in those provisions.
4.29 Fifth, the EC incorrectly determined both a wei ghted average, and a "residual", margin of
dumping for non-sampled producers and exporters in a manner that violates Article 9.4 of the Anti-
Dumping Agreement.
4.30 In determining the weighted average margin, th e EC failed to base its determination on the
definitive dumping margins determined for the sampled producers. In the General Definitive
Disclosure document 42, the EC determined a margin of dumping of 14.8 per cent for "cooperative
non-sampled companies". After the Definitive Discl osure, the EC made downward revisions to the
individual margins of dumping for three sampled producers. 43 These revisions logically imply a
decrease in the weighted average margin, given th at the other seven individual margins remained
unchanged. However, the EC did not alter the weig hted average margin, leaving it at 14.8 per cent in
the Definitive Regulation. The EC also included a margin calculated with "Facts Available" in the
calculation of the weighted average, although expressl y prohibited by Article 9.4. This margin is,
therefore, higher than it should be.
4.31 In determining the "residual" margin for so -called "non-cooperative or unknown companies",
the EC improperly had recourse to facts available under Article 6.8 and Annex II of the Anti-Dumping
Agreement. The EC also, incorrectly, assigned to non- sampled companies that allegedly "did not
cooperate or did not make themselves known" the highest dumping margin established for a sampled
producer instead of the weighted average dumping ma rgin. Instead, the EC should have assigned to
those producers also the (correct) weighted average dumping margin.
4.32 Sixth, the EC improperly constructed normal value for six producers. In virtually all cases,
the EC constructed normal value on the basis of co sts of production plus an amount for SG&A costs
and for profits. However, in determining nor mal value, the EC made numerous improper and
unexplained adjustments to the sampled producers' re ported costs, thereby artificially inflating them.
These adjustments have a significant effect on the individual margins of dumping; in one case,
removing the unjustified cost adjustment eliminates the margin of dumping entirely.

41 Appellate Body Report, EC – Tube or Pipe Fittings, para. 97.
42 General disclosure document containing Definitive findings in the AD proceeding concerning farmed
salmon from Norway. Investigation AD-487. Dated 28 October 2005. Exhibit NOR-67.
43 See para. 461 of Norway's First Written Submission.

4.33 Taken together, these inconsistenc ies amount to numerous violati ons of Articles 2.2, 2.2.1.1,
2.2.2, 6.8, 6.10, 9.4 and Annex II of the Anti-Dumping Agreement.
(d) The EC's injury determination violates the Anti-Dumping Agreement
4.34 First, the EC treated all imports from Norway as dumped, even though it had found that one
of the sampled producers was not dumping. More over, the EC's sample consisted exclusively of
producers of salmon, to the deliberate exclusion of independent exporters of salmon. The EC itself
acknowledged that the sample consisted of six pr oducers that do not themselves export salmon and
four integrated producer-exporters.
44 On the basis of a sample that included only producers, the EC
assumed that imports from all non-producing exporter s were dumped. However, the EC's dumping
determinations regarding sampled producers do not provide "positive evidence" that imports from
non-sampled exporters are also dumped, as required by Article 3 and also emphasized by the
Appellate Body.
4.35 As explained in Section V.A of Norway's first written submission, the Norwegian salmon
industry includes, besides producers and integrat ed producer-exporters, a third major category of
companies: independent traders that do not pr oduce salmon but purchase it for sale on domestic and
export markets.45 Independent exporters are a key constituent of the Norwegian salmon industry, with
considerable exports from Norway to the EC. Pr oducers and exporters are engaged in different
activities and have different cost structures. Even if some producers were dumping. that does not
necessarily mean that exporters were also dumping.
4.36 Second, the EC concluded that dumped imports were undercutting the EC industry's prices by
12 per cent. However, in reaching this conclusion, the EC ignored the fact that EC salmon products
generally enjoy a price premium in the marketplace of 12 per cent – a price premium recognized by
the EC on numerous occasions 46 and evidenced by documents on the record. The EC itself even
acknowledged this fact in its draft definitive determination, but then deleted the relevant finding at the
last moment without any explanation. Taking acc ount of this price premium, there was no price
undercutting.
4.37 Third, the EC examined the prices of a sample of five Scottish producers in euros, and
concluded that prices had dropped by 9 per cent. However, this price "decrease" is a mathematical
construct and stems entirely from an appreciation in the value of the euro in comparison to the pound
sterling over the period considered. Measured in pound sterling, prices remained constant and did not
fall. For these Scottish producers, the evaluation of prices must be made in pounds sterling because
their costs are incurred in that cu rrency, as are the vast majority of their sales. The use of euros,
therefore, distorted the injury determination.
4.38 In consequence, the EC violated Articles 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping
Agreement.

44 See letter from the EC to FHL and NSL, 22 November 2004. Exhibit NOR-39.
45 See para. 297 of Norway's First Written Submission and the references therein, for instance,
Regulation (EC) No. 1890/1997, para. 12 and Termination Regulation, para. 35. Exhibits NOR-2 and NOR-5.
46 This fact was expressly acknowledged by the EC in its General Disclosure document, which stated
that the usual price premium for domestic salmon products is 12 per cent. (General Disclosure, para. 122.
Exhibit NOR-67.)

(e) The EC's causation determination violates Articles 3.1 and 3.5
4.39 The EC failed to ensure that injury caused by two other known factors – (1) the EC producers'
increased costs of production, and (2) surging imports from Canada and the United States – were not
improperly attributed to dumped imports.
4.40 First, the EC's analysis masked the fact that the domestic industry's costs of production rose
significantly during the period considered. The EC m asked this fact by examining price trends in
euros, instead of pounds sterling, the relevant cu rrency for the sampled Sc ottish salmon growers.
Because unit sales prices were constant in pounds sterling 47 and because sales volumes increased by
7 per cent, the sampled producers' revenues must ha ve increased during the period considered. But
during that same period, the profitability of the EC producers turned from positive to negative. This
suggests that losses sustained by the EC industry duri ng the IP were caused by an increase in costs of
production that outstripped the industry's increased revenues. Since three of the five Scottish
companies were engaged in, or in transition to, organic farming during the IP, it seems likely that their
increased costs are partly due to organic farming. 48 In pounds sterling, their costs increased with an
average for all five producers of 14.9 per cent. In essence, the producers' increased costs more than
eliminated their higher sales revenues. The complete absence of analysis by the EC on this point
violates Articles 3.1 and 3.5 of the Anti-Dumping Agreement.
4.41 Second, the EC dismissed the significance of a 560 per cent increase in imports from Canada
and the United States on the grounds that these imports consisted mostly of wild salmon, which, the
EC found, did not compete with farmed salmon. Un fortunately, the EC offers no facts in support of
these conclusions and even admits that its import statistics do not separate farmed and wild salmon.
There was, therefore, no basis for the EC to concl ude that the surge in imports consisted of wild
salmon. The evidence in the record also directly contradicts the EC's unsubs tantiated conclusion that
farmed and wild salmon do not compete.
(f) The EC's use of minimum import prices and fixed duties violates the Anti-Dumping
Agreement
4.42 The EC imposed the definitive anti-dumping measure in the form of minimum import prices
(MIPs). MIPs are a form of variable anti-dumping duty imposed on the basis of a reference price. In
establishing these MIPs the EC violated Article VI:2 of the GATT 1994, and Articles 9.1, 9.2, 9.3 and
9.4(ii) of the Anti-Dumping Agreement.
4.43 First, under WTO rules, the reference price may not exceed normal value. Normal value
constitutes the dividing line between fair and unfair trade, delineating when duties can and cannot be
imposed. Accordingly, if variable anti-dumping duti es are imposed on the basis of a reference price,
the reference price cannot exceed normal value. This was recognized by the panel in US – Zeroing
(Japan), which stated that "[in a prospective normal value system] an importer who imports a product
the export price of which is equal to or higher th an the prospective normal value cannot incur liability
for payment of anti-dumping duties".
49 The EC itself recognized as much in its Definitive Regulation,

47 The price in 2001 and in the IP was constant at GBP 1,88 per kilo. The assertion by the EC of a
9 per cent drop is due to the appreciation of the Euro in comparison to the GBP, which is unrelated to the prices
in Scotland.
48 It appears from the companies' public statements that Loch Duart, West Minch and Wester Ross
Salmon were exclusively or almost exclusively produci ng organic salmon during the Investigation Period (See
paras. 248-252 of Norway's First Written Submission.)
49 Panel report, US – Zeroing (Japan), para. 7.201. See also para. 7.205 of that panel report.

when it emphasized that their so-called "non-injurious" MIPs were lower than "non-dumped" MIPs,
which it said were "calculated on the basis of normal value".
50
4.44 However, for many investigated producers, for some or all of the MIP product categories, the
MIPs do exceed the individually determined nor mal values, as shown in Norway's First Written
Submission, table 9 (page 183).
4.45 Second, the MIPs, consequently, also exceed the we ighted average normal value, applied to
the non-sampled producers and exporters, for all MIP product categories.
4.46 Third, any anti-dumping duty, in whichever form, cannot exceed the margin of dumping. The
Appellate Body in US – Zeroing (EC) found that:
… the margin of dumping established for an exporter or foreign producer operates as
a ceiling for the total amount of anti-dumping duties that can be levied on the entries
of the subject product (from that exporter) … . 51
4.47 The Appellate Body has also stated that, under Article 9.3, the amount of the anti-dumping
duty must "correspond to" or be "less than" the individually determined dumping margin.52
4.48 In this case, the amount of duties imposed by re ference to the MIPs is not limited to the
margin of dumping for individual producers. This is because, in the case of the contested MIPs, the
duty imposed is the full amount by which the net free-at-Community-frontier price is below the MIP.
This duty can also be expressed as an ad valorem equivalent - namely, as the ratio of the amount of
duty collected on a shipment to the price of th e imported product. Where the actual price of a
shipment decreases, the ad valorem equivalent of the duty increases and may well go above the
margin of dumping (per cent rate) determined for th e examined producers. Contrary to Article VI:2,
and Articles 9.1 and 9.3, there is no mechanism in th e EC measure to ensure that the amount of duties
imposed does not exceed the margins of dumping determined for the examined producers.
4.49 Furthermore, the EC additionally imposes fixed duties – which are distinct from the MIPs –
as a punitive tariff in cases of alleged "circumvention" . The fixed duties do in certain circumstances
elevate the entry price above the relevant MIP. These situations arise where the amount of the fixed
duty exceeds the difference between actual price and the MIP. As is the case for the MIPs, the EC has
failed to adopt a "ceiling" or "cap" to en sure that the fixed duties, expressed as an ad valorem
equivalent of the export price, do not exceed a produ cer's margin of dumping. As a result, in the case
of five producers (see Table 10 in Norway's Firs t Written Submission), the fixed duty for each of the
six products exceeds the dumping margin for some or all export prices.
(g) The EC violated its procedural obligations under Articles 6 and 12 of the Anti-Dumping
Agreement
4.50 The EC's investigation and its published dete rminations are characterized by a lack of
transparency. First, the EC acted inconsistently with Article 6.4 because it failed to disclose non-
confidential information contained in the record of the investigation. Norway has already submitted a
list of document that it knows, or has good reas on to believe, were missing from the non-confidential
record when Norway inspected it.
53 Second, the EC failed to disclose the essential facts that formed
the basis for the EC's decision to impose duties, as required by Article 6.9. The EC's purported

50 Definitive Regulation, para. 129.
51 Appellate Body Report, US – Zeroing (EC), para. 130. Original emphasis.
52 Appellate Body Report, EC – Bed Linen (Article 21.5 – India), footnote 156 to para. 125.
53 Letter from Norway to the Panel, 4 August 2006, Annex 3-A. Exhibit NOR-13.

disclosure of essential facts amounted to a draft of the Definitive Regulation that, very largely, fails to
refer to any facts forming the basi s for the EC's determination. Third, the EC violated Article 12
because it failed to provide a reasoned and adequate explanation for a number of its findings and
conclusions.
3. Conclusion
4.51 Norway respectfully requests that the Pane l recommend that the Dispute Settlement Body
request the EC to bring the contested measures in to conformity with its obligations under the Anti-
Dumping Agreement and the GATT 1994.
4.52 In addition, Norway respectfully requests the Pa nel to make use of its discretion under the
second sentence of Article 19.1 of the DSU by sugges ting ways in which the EC could implement the
recommendations and rulings of the DSB. Given the nature and scope of the EC's violations of the
Anti-Dumping Agreement and of the GATT 1994, Norway believes that the EC's initiation of the
investigation, and the measures resulting from it, are vitiated and deprived of legal basis.
Consequently, Norway respectfully requests the Panel to suggest that the EC implement the
recommendations and rulings of the DSB by withdrawing the contested measures.
B. FIRST WRITTEN SUBMISSION OF THE EUROPEAN COMMUNITIES
4.53 The following summarizes the Eu ropean Communities' arguments in its first written
submission.
1. Introduction
2. Standard of Review
4.54 The Panel must not conduct a de novo review.
3. Product Concerned
4.55 Article 2.6 contains a definition, not obliga tions. Article 2.1 contains no obligations
regarding the selection of the product concerned. The EC's selection of the product concerned cannot
therefore be found inconsistent with those provisi ons. Norway's consequential claims must also
therefore fail.
4.56 Norway confuses the concepts of product c oncerned and "like product". Furthermore,
Norway fails to demonstrate, on the basis of admi ssible facts and evidence or otherwise, that the
product concerned could not include farmed salmon, presented as fillets. In any event, farmed
salmon, however presented, is a like product.
4. Domestic Industry
4.57 Article 4.1 contains a definition, not an obligatio n. Norway's consequential claims must also
fail. According to Norway, because of the situ ation of EC filleting-onl y undertakings, an anti-
dumping proceeding was by definition impossible. No rway considers that all change is production,
which would result in double countin g. The position of industrial u sers is expressly provided for in
Article 6.12, with which the EC complied. "Produce" includes : "Bring (a thing) into existence; …".
The EC filleting-only undertakings are not concer ned with bringing the product concerned (farmed
salmon) into existence, or producing it. Rather, they are concerned with the process of consuming it.
In a fisheries context the term "produce" particular ly has this meaning. This is confirmed by the
preparatory work and past GATT and WTO reports.

4.58 In this case the measure at issue states clea rly that during the investigation period the
estimated total EC production was 22,000 tonnes; that the 15 cooperating EC producers produced
around 18,000 tonnes; and that they therefore represent around 82 per cent (i.e. a major proportion)
of EC production. Norway does not contest the f actual accuracy of either of the numbers used to
make this calculation. The measure is thus consistent with the requirements of Article 4.1.
4.59 The EC sample of EC producers complied with the requirements of the Anti-Dumping
Agreement. The EC did not conduct an injury analysis for only part of the EC industry. It correctly
defined that industry, and then analysed it as a whole, on the basis of permissible sampling
techniques.
5. Initiation
4.60 Norway's consequential claims should be rejected for the reasons already given above.
6. Dumping
(a) Limiting the examination under Article 6.10
4.61 The EC has always preferred to base dumpi ng margins on producers rather than exporters,
and in the salmon case it reverted to this traditional practice. This was possible because of structural
changes in the Norwegian industry.
4.62 The same preference is reflected in the text of the Anti-Dumping Agreement, which assumes
that normal values are determined for parties that 'produce'. This interpretation also follows from
Article 2.5, and has the advantage of discouraging producers from evading duties by selling to traders.
4.63 The choice of companies made by the EC satisfies the criterion in Article 6.10 of the 'largest
percentage by volume of exports from the country in question that can reasonably be investigated.'
Furthermore, by consulting and seeking agreement with the Norwegian fish producers association the
EC sought to meet the goal set in Article 6.10.1, and to satisfy the criterion of reasonableness. The
ten companies selected by the EC constituted a satis factory choice, bearing in mind the information
available to the EC at the time.
(b) Below cost sales and Articles 2.2 and 2.2.1
4.64 In calculating normal value the EC correctly applied Articles 2.2 and 2.2.1 of the Anti-
Dumping Agreement . In particular, in applying the notion of sales below cost 'made within an
extended period of time in substantial quantities and … at prices which do not provide for the
recovery of all costs within a reasonable period of time' the EC was entirely justified in using the
investigation period as both the 'extended period of time' and the 'reasonable period of time'.
4.65 The EC's practice of disregarding all domestic sales prices where less than 10 per cent are
sold below cost is based on the general 'not in the ordinary course of trade' criterion, and not on the
specific rule in Article 2.2.1. The inclusion of such sales would risk distorting the result of the
calculation.
(c) SG&A and profits and Article 2.2.2
4.66 Norway attacks the EC under Article 2.2.2 in regard to its calculation of the 'reasonable
amount for administrative, selling and general costs and for profits' when constructing normal values
because it excluded data regarding sales whose pric es were disregarded on grounds of low volume.

Norway argues that the sole ground for excluding such data is that the sales were not in the ordinary
course of trade.
4.67 In part Norway's claim is misplaced because it does not appreciate that the disregard of sales
under the 'less than 10 per cent profitable rule' (above) is based on the ordinary course of trade
principle.
4.68 Norway is mistaken in assuming that the scope of the phrase 'ordinary course of trade' in
Article 2.2.2 is intended to exclude low volume sales . As is shown by the example of the option of
using sales prices to third countries, the phrase is not used in a uniform manner in Article 2.
4.69 Furthermore, if data from low volume sales is not excluded when constructing prices the
result will be precisely to cancel out the effect of excluding such sales from the calculation of normal
values in accordance with Article 2. 2. Such a pointless procedure cannot have been intended by the
drafters, and would result in a comparison being b ased on data from sales that are declared by the
Agreement to 'not permit a proper comparison'.
(d) Use of facts available and Article 6.8 and Annex II
4.70 Norway criticizes the EC for failing to observe the rules on 'facts available' regarding its
treatment of filleting costs of the Norwegian producer Grieg.
4.71 Although the information made available on this matter before and during the verification
visit was unsatisfactory, the EC did not resort to th e use of 'facts available', but used information from
another company that was being investigated. Co nsequently the EC cannot be criticized for not
following the rules relevant to 'facts available'.
4.72 The additional information sent to the EC by Gr ieg some months after the verification visit
was unsatisfactory, and could not have been used without further verification, which was not possible
at that stage. For this reason, co ntrary to Norway's contention, the EC's treatment of this information
was not in breach of paragr aph 3 of Annex II of the Anti-Dumping Agreement. Furthermore, the EC
did not infringe paragraph 6 of Annex II since the co mpany had given no 'further explanations' as that
provision envisages.
4.73 Finally, the EC's treatment of Grieg's financing costs involved no element of 'facts available'.
There was no rejection of factual data by the EC, rath er the issue concerned the class of data that was
required. The EC insisted on the use of a commercial rate of interest in determining Grieg's costs.
Grieg disputed this principle, but did not challenge the accuracy of th e rate used by the EC for this
purpose. The use of a three-year average rate refl ected the three-year basis that the EC used for
assessing costs of salmon production (see Section XII, below).
(e) Treatment of non-investigated companies and Articles 6.8 and 9.4 and Annex II
4.74 The minimum import prices (MIPs) used by the EC as an anti-dumping measure on
Norwegian salmon were calculated at a level that would prevent injury being caused to the EC
domestic industry. They were in all cases below the 'non-dumped MIPs', that is the MIPs that
corresponded to the examined producers' normal values (after adding transport costs, etc.), and to the
weighted average of such values. They represented the application of the lesser-duty rule to a system
where the 'liability for payment of anti-dumping duties is calculated on the basis of a prospective
normal value' (Article 9.4(ii)).

4.75 Contrary to Norway's complaint, there was no need to disregard Grieg's normal value in
making the calculation since it was not calculated on th e basis of 'facts available'. In any event, the
exclusion rule does not apply to margins determined under Article 9.4(ii)
4.76 As regards the treatment of non-cooperating producers and exporters the EC has complied
with the provisions in Article 6.8 and Annex II. The EC made elaborate efforts to bring information
of the investigation to the notice of Norwegian fi rms, and Norway has given no instance of any firm
that was unaware of the investigation or of the potential consequences of not cooperating with it.
7. Injury
4.77 Norway challenged three distinct aspects of th e EC injury determination (determination of
volume of dumped imports, price undercutting and the evaluation of price trends).
4.78 First, as regards the volume of dumped imports, it was determined by extrapolation from a
sample in accordance with the Anti-Dumping Agreement . It follows from the Anti-Dumping
Agreement that it is more than appropriate to focu s the dumping determination on producers, rather
than exporters.
4.79 When Norway cites to the EC – Bed Linen (21.5) case, it apparently ignores the fact that the
legal conclusions in that case were based on the ve ry specific facts and circumstances of that case,
considerably different from the present dispute. The result which arose in EC – Bed Linen (21.5) was
statistically impossible in the present case.
4.80 In any event, among the imports from the samp led companies, the EC also examined and
included imports from those companies that exported to the Community via traders. These imports
were found to be dumped.
4.81 Moreover, in the present case, the EC also had at its disposal other sources of information
(besides sampling) to conclude that imports from the non-sampled companies were dumped. On the
basis of Eurostat data, it has been found – and ne ver challenged by Norway – that the imports from
non-cooperating companies, accounting for approxi mately 20 per cent of all the imports, were
dumped.
4.82 The fact that one of the companies included in the sample had a de minimis dumping margin
does not change the correctness of the EC analysis. A de minimis dumping margin does not mean that
a company is not dumping (quite to the contrary). Even if de minimis imports were excluded from the
calculation of import volume, it would not have ma de any (significant) difference in the injury
analysis.
4.83 Second, as regards price undercutting, the pr ice premium enjoyed by EC salmon products
does not play a role in a price undercutting analysis . Price undercutting is a "snapshot" of the market
situation and reflects nothing else but the real price differential. The price premium (the amount a
customer is willing to pay extra) only materialises under normal market conditions, in an undistorted
market (that the MIPs tried to restore). In a mark et distorted by dumping the whole mechanics of the
market no longer functions as normal (for instance, th ere is price manipulation, etc.). Hence, the
producer of the salmon can no longer confidently re ly on the price premium but will do anything to
survive (depress prices, etc.). Th is is evidenced by the findings of the investigation. The EC took
account of the price premium in the context of the determination of the level of MIP.
4.84 Third, Norway argues that the EC vi olated Articles 3.1 and 3.4 of the Anti-Dumping
Agreement because the EC examined the prices of the EC domestic industry in Euros and not in the
alleged "operating currency" of the EC industry – in pounds sterling (GBP). Norway's legal test of

"operating currency" is entirely fabricated and does not have support in the Anti-Dumping Agreement
or case law. As acknowledged by Norway, the EC i nvestigating authority could have theoretically
chosen any other currency, as long as that currency would have been used in a consistent manner for
all purposes throughout the investigation. Currency is just a common denominator, which, as long as
it is used consistently throughout the proceeding, serves the Appellate Body requirement of unbiased,
even-handed and fair examination. The use of Eu ro by the EC investigating authority has been
consistent throughout the examination. Even if the EC had used GBP, instead of Euro, as the
common denominator, the results of the evaluation analysis under Article 3.4 if the Anti-Dumping
Agreement would be exactly the same.
4.85 Even if Norway's argument were correct, ther e would be an overall price decline, since a
significant part of the transactions of the Community industry indeed takes place directly in Euro.
Finally, even if there were no price decline – and Norway actually never seems to suggest that there
was no overall price decline – it would not mean that the assessment of the EC investigating authority
violated Articles 3.1 and 3.4 of the Anti-Dumping Agreement.
8. Causation
4.86 Norway argues that the EC failed to conduct a pr oper assessment of the injury caused to the
EC industry by a couple of factors other than dumped imports (cost of production in the EC and
imports of wild salmon from Canada and the United States).
4.87 The methods by which WTO Members choose to carry out the process of separating and
distinguishing the injurious effects of dumped im ports from the injurious effects of the other known
causal factors are not prescribed by the Anti-Dumping Agreement. What matters in the present case is
whether the EC made a proper assessment and eval uation of very specific factual issues by proper
methods and approaches not specifically prescribed by the Anti-Dumping Agreement in accordance
with that agreement.
4.88 With regard to the cost of production of EC producers, Norway grossly misquoted the EC
Provisional Regulation. The EC never stated that th ere were two separate factors relating to the cost
of production: one related to the cost of productio n of the Norwegian producers (which Norway is not
challenging) and another factor related to the cost of production of the EC producers. Rather, what
Norway portrays as separate factors were two separate arguments related to the same factor.
Moreover, Norway has not made any prima facie case that the costs of production of the EC, and their
"increase" over the years, have actually caused or contributed to the injury of the EC industry.
4.89 Second, with regard to imports of wild sal mon from the Canada and United States, Norway
actually does not adduce any evidence to make a prima facie case. Norway does not challenge the
factual finding of the EC. Instead, Norway attacks th e EC for the lack of explanation as to the source
of evidence showing that the "majority" of impor ts from Canada and the United States are wild
salmon. Norway argues that the absence of such explanation means that the EC finding "must be
disregarded as a mere speculation". This legal th eory is erroneous and is supported by neither
Articles 3.5 and 3.1 of the Anti-Dumping Agreement nor by the case law.
4.90 On the inter-changeability betw een wild salmon and farmed salmon, Norway, being short of
factual evidence, refers to WTO case law on like pro ducts (regarding factors such as taste and prices).
Besides a dubious relevance of that case law for the present case, this reference clearly does not
replace factual evidence.
4.91 Moreover, Norway discusses the in ter-changeability of wild and fa rmed salmon when sold to
a customer as a fresh product. This, however, is i rrelevant to the case at hand. The US and Canadian
wild salmon "is practically not offered in the market for sale as a fresh product". Only a small part is

sold as a fresh product to niche customers at high prices. The market for the product concerned and
imports from the Canada and US is different and the wild and farmed salmon are not interchangeable.
9. Minimum Import Prices
4.92 The nature of the Minimum Import Prices (MIPs) imposed on imports of Norwegian salmon
is described in Section VI.E, above. As mentioned there, the MIPs were in all cases at a level below
the corresponding non-dumped MIPs. The use of thr ee-year average exchange rates follows logically
from the use of a three-year basis in calculating costs for the purpose of constructing normal values
(see Section I).
4.93 Under the Anti-Dumping Agreement the imposition of anti-dumping duties by means of MIPs
(involving 'prospective normal values' as envisaged in Article 9.4(ii)) is distinct from that based on a
predetermined dumping margin, and such a margin does not act as a cap on the duty that may be
imposed by means of a MIP.
10. Fixed Duties
4.94 The EC's system of fixed duties for Norwegian salmon imports is a system of customs
enforcement that is justified under Article XX(d) of GATT 1994. It is designed to deter evasion of
lawfully imposed anti-dumping duties through misdeclaration of the customs value of the goods.
Such action is envisaged in footnote 24 of the Anti-Dumping Agreement.
4.95 The 'laws or regulations which are not inconsiste nt with the provisions of this Agreement' are
the EC's anti-dumping measures against salmon as we ll as the obligations under ordinary customs law
for importers to make truthful declarations regardi ng the value of goods that they are entering into the
EC. The fixed level duty is necessary to secure compliance with such laws.
4.96 As regards the obligations in the opening para graph of Article XX, the fixed duty can neither
in its substance nor its application be characterized as amounting to an abuse or misuse of an
exception, or to amount or lead to arbitrary or unjustifiable activity.
11. Procedural Requirements
4.97 Under Article 6.2 and 6.4 of the Anti-Dumping Agreement there is no obligation to operate a
"record". Norway itself shared this interpretati on when submitting proposals in the Doha Round to
amend the agreement. Rather, these provisions pr ovide for full access to all relevant non-confidential
information during the investigation. The EC has fully complied with that obligation by providing
Norway with ample opportunities to see all relevant information.
4.98 The duty of disclosure under Article 6.9 of the Anti-Dumping Agreement relates to facts.
There is no duty to specifically identify in the disclosure document the source on which the assembled
facts are based. Rather, the agreement requires the authority to provide information about the
essential facts by a simple reference to them. The EC fully complied with this standard by having
handed over to Norway on 28 October 2005 a draft regul ation containing refere nces to all relevant
facts. Accordingly, there is no ancillary breach of Article 6.2 of the Anti-Dumping Agreement.
4.99 Under Article 12.2 of the Anti-Dumping Agreement an investigating authority is required to
provide "in sufficient detail the findings and conclusi ons reached on all issues of fact and law". This
"chapeau" is then further specified as regards findings in Article 12.2.2 of the
Anti-Dumping
Agreement. An investigating authority must provide the information that it considers relevant, and the
reasons that it held to be decisive for its findings, paying due regard to the requirements for the
protection of confidential information. Agains t that yardstick, the EC provided sufficient

explanations about its selection of the subject pr oduct, its domestic indus try determination, its
dumping determination, its causation determination and the minimum import price.
12. Normal Value and Producers' Costs
4.100 Norway makes a number of claims regarding the EC's allocation of costs vis-à-vis the
Norwegian producers. Article 2.2.1.1 lays down th e basic rules. These refe r to 'generally accepted
accounting principles' and the EC makes reference to a number of IASB standards and principles.
4.101 In keeping with the practice of the major Norw egian producers, the EC applied a system of
three-year project accounting to the allocation of salmon production costs.
4.102 Norway misinterprets the Agreement to pret end that, as regards non-recurring costs, only
those costs that benefit production need be taken into account. Such an interpretation is mistaken, and
would lead to a major distortion in the appearance of a company's financial position.
4.103 Even as regards those costs that benefit production the Norwegian companies took an
excessively narrow view of what should be included.
4.104 In order to present a true picture of the co mpanies' financial situation the EC found it
necessary to include costs falling into a number of important categories, such as discontinued
operations (unless a whole business segment was invol ved), extraordinary charges, and accounting
changes.
4.105 A number of specific issues arose with individual companies. In one instance the EC found it
appropriate to allow a write-down for a loss in va lue of biomass caused by unfavourable expected
market price evolution, but not that resulting from defo rmity of the biomass, which is an inherent risk
of the business.
4.106 Contrary to Norway's allegation, the EC aut horities applied the same standards to the ten
investigated companies.
4.107 In applying the basic principles the EC reje cted a series of demands from the companies
regarding, for example, facility closures, restructur ing costs, severance payments, costs of destruction
of salmon fry, and bad debts. Overall, the EC rejects Norway's attempts to disregard any adverse
event or a bad business decision that affects activity in a negative way.
4.108 In keeping with its overall strategy the EC i nvestigated the salmon business of one firm as a
business segment, regardless of whether the costs we re a consequence of direct business transactions
or alternatively of financial participations, or of whether the company in which it participated
discontinued its activities. All these costs were cons idered non-recurring but being an integral part of
the salmon activity were taken into account and depreciated over a three years period.
4.109 Norway attempts to create confusion between the use of a three-year basis for determining
production costs, and the spreading of costs over the life-time of an asset. The latter process will lead
to a costs being allocated to particular years. In the case of non-recurring costs it is these annual
allocations that the EC averaged over three years be cause of the special nature of salmon production.
However, normal accounting valuation rules do not apply when an asset is no longer used for its
original purpose.
4.110 The EC applied the same three year period to the collection of finance costs. In several cases
companies had wrongly attributed such costs to parent or group companies.

4.111 Regarding smolt costs, the EC agrees that for the purpose of determining the cost of
production, quantities of smolt should be aligned to quantities of harvested salmon, taking into
account mortality.
4.112 In the case of one company, although it had operated a project-accounting system, the
relevant data could not be rec onciled with the audited annual acc ounts. The latter were therefore
used, and adjustments made as appropriate to simulate the three-year basis.
4.113 In the case of a company for whic h records were inadequate, but which was part of a group
with audited accounts, the amount for selling, general and administrative costs was based on the 'other
operating expenses' category at the consolidated group level.
4.114 Finally, the claims regarding the cost of purchased salmon in respect of another company
were never verified, and could not be accepted by the EC.
13. Conclusion and Findings Requested
4.115 For the reasons set out in this First Written Subm ission, the EC requests the Panel to reject all
of Norway's claims and arguments, finding instead th at, with respect to each of them, the EC acted
consistently with all its obligations under the Anti-Dumping Agreement , the GATT 1994 and the
covered agreements, including (non-exhaustively) as set out in the following paragraphs.
4.116 For the reasons set out in Section III of this First Written Submission, the EC requests the
Panel to reject Norway's claims that the EC acted inconsistently with Articles 2.1, 2.6 and
(consequently) Articles 2.1, 3 and 5 of the Anti-Dumping Agreement when selecting the product
concerned.
4.117 For the reasons set out in Section IV of this First Written Submission, the EC requests the
Panel to reject Norway's claims that the EC acted inconsistently with Artic le 4.1 and (consequently)
Articles 3 and 5 of the Anti-Dumping Agreement when determining the domestic industry.
4.118 For the reasons set out in Section V of this First Written Submission, the EC requests the
Panel to reject Norway's claims that the EC acted inconsistently with Articles 5.1 and 5.4 of the Anti-
Dumping Agreement when initiating the original investigation.
4.119 For the reasons set out in Section VI of this First Written Submission the EC requests the
Panel to reject Norway's claims that the EC acted inconsistently with the following provisions of the
Anti-Dumping Agreement:
- Article 6.10 in its selection of No rwegian producers and exporters for
examination;

- Articles 2.2 and 2.2.1 in regard to the determination of below-cost sales;

- Article 2.2.2 in its determination of SG&A and profits in regard to sales made in
low volumes;

- Article 6.8 and Annex II, paragraphs 3 a nd 6 in regard to the determination of
normal value of one investigated company; and

- Articles 6.8 and 9.4, and Annex II, paragraph 1, in regard to the margins of
dumping calculated for non-sampled companies.

4.120 For the reasons set out in Section VII of this First Written Submission the EC requests the
Panel to reject Norway's claims that, in its injury determination, the EC acted inconsistently with :
- Articles 3.1, 3.2 and, in consequence, Article 3.5 of the Anti-Dumping
Agreement in its examination of the volume of dumped imports;

- Articles 3.1, 3.2 and, in consequence, Article 3.5 of the Anti-Dumping
Agreement in its examination of price undercutting; and

- Articles 3.1 and 3.4 of the Anti-Dumping Agreement in its evaluation of price
trends affecting EC producers.

4.121 For the reasons set out in Section VIII of this First Written Submission the EC requests the
Panel to reject the Norway's claims that, in its causation determination, the EC acted inconsistently
with :
- Articles 3.1 and 3.5 of the Anti-Dumping Agreement because the EC did not fail
to properly assess the injurious effects of the EC industry's increased cost of
production; and

- Articles 3.1 and 3.5 of the Anti-Dumping Agreement because the EC did not fail
to properly assess the injurious effects of imports of salmon from Canada and
the United States.

4.122 For the reasons set out in Section IX of this First Written Submission the EC requests the
Panel to reject the Norway's claims that its anti-dumping measures violated Article VI:2 of
GATT 1994 and Articles 9.1, 9.2, 9.3 and 9.4(ii) of the Anti-Dumping Agreement by imposing
minimum import prices exceeding the normal value and not limited to the dumping margin.
4.123 For the reasons set out in Section X of this First Written Submission the EC requests the
Panel to reject the Norway's claims that its anti-dumping measures violated Article VI:2 of
GATT 1994 and Articles 9.1, 9.2, and 9.3 of the Anti-Dumping Agreement by imposing fixed duties
that exceeded the dumping margin.
4.124 For the reasons set out in Section XI of this First Written Submission the EC requests the
Panel to reject Norway's claims that the EC act ed inconsistently with Articles 6 and 12 of the Anti-
Dumping Agreement.
4.125 For the reasons set out in Section XII of this First Written Submission the EC requests the
Panel to reject Norway's claims that it infringed Ar ticle 2, and in particular Article 2.2.1.1 of the Anti-
Dumping Agreement when calculating the costs of the inv estigated companies for the purpose of
determining their normal values.
C. F
IRST ORAL STATEMENT OF NORWAY
4.126 The following summarizes Norway's arguments in its first oral statement.
1. Introduction
4.127 The EC has failed to respect many of the substantive and procedural requirements of the
GATT 1994 and the Anti-Dumping Agreement. Rather than addressing the substance of Norway's
claims, the EC claims a very wide discretion for its authority to do as it wished, often in interpretive
matters. The EC also tries to fill in the many hol es in its determination by offering new evidence and

new reasons to justify its measure. This is inadmissible, and only serves to highlight the shortcomings
in the EC's determination.
2. Inadmissible Evidence and Ex Post Rationalization
4.128 Norway states two objections to the EC's First Written Submission. First, Norway objects to
seven exhibits submitted by the EC. Norway requests that the Panel reject Exhibits EC-2, EC-10, EC-
12, EC-13, EC-14, EC-15 and 16 as inadmissible b ecause they contain new information that is not
part of the record of investigation.
4.129 Second, Norway also objects to numerous new explanations the EC now provides for the
investigating authority's determinations that were not provided by the investigating authority itself in
its published determination. In many instances, the EC: provides a new explanation where the
authority provided no explanation; provides new reasons to supplement an inadequate explanation
given by the authority; or provides an explanation that is different from the explanation given by the
authority.
4.130 This litigation technique has been referred to by panels as "ex post rationalization".
54 A WTO
Member may not justify an authority's determinations by providing reasons that the authority itself did
not provide.55 A panel's task is to establish whether the investigating authority provided a reasoned
and adequate explanation in its published determination, and not whether the defending Member did
so in a subsequent dispute . Examination of new evidence and explanations requires a panel "to
perform a de novo review" of what the investigating authority should have done. 56 That is not th e
Panel's task.
3. The Product Under Consideration
4.131 Norway argues that Articles 2.1 and 2.6 of the Anti-Dumping Agreement require that all
models of the "product under consider ation" be "like", that is "iden tical" or "closely resembling" each
other. Under Article 2.1, a "dumping" determination involves a single aggregate comparison of
export price and normal value for the investigated pr oduct. Models are just a helpful, but temporary,
tool that authorities may use to minimize the need for adjustments under Article 2.4.57
4.132 Furthermore, Norway argues that the inves tigating authorities must present a reasoned and
adequate explanation of its dete rmination of the product under cons ideration. The EC failed to
determine the scope of the "product under considerati on" consistently with Articles 2.1, read together
with 2.6 of the Anti-Dumping Agreement . By so doing the EC initiated an investigation into the
wrong product, in violation of Article 5.4; made a single "dumping" determination, under Article 2.1,
for an improperly defined single product, without es tablishing that the different products subject to
that determination were, in fact, dumped; and, finally made an inju ry determination under Article 3
premised on an incorrect product determination.
4. Domestic Industry
4.133 Although the EC defined the "product under consideration" in very broad terms, it defined the
EC domestic industry in extremely narrow terms. In particular, whereas the "product under

54 Panel Report, Argentina - Poultry , paras. 7.284, 7.306 and 7.321. Panel Report, Guatemala –
Cement II, para. 8.48.
55 Appellate Body Report, US – Wheat Gluten , para. 162. Panel Report, Argentina - Poultry ,
paras. 7.284, 7.306 and 7.321. Panel Report, Guatemala – Cement II , para. 8.48; see also Appellate Body
Report, US – CVD on DRAMS, para. 165.
56 Panel Report, US – Softwood Lumber V, para. 7.40.
57 Panel Report, US – Softwood Lumber V, para. 7.207.

consideration" includes fillets, the producers of these like products are excluded from the "domestic
industry". The EC also improperly excluded numerous other categories of producer. As a result,
there is a fatal mismatch between the scope of the product and the domestic industry.
4.134 In this dispute, the selection of the complainants as the sole group of producers in the industry
involves an egregious lack of objec tivity because these producers are the mo st likely to be injured, in
violation of Article 3. The EC also violated Article 5.4 because it failed to assess whether the
complaint was made "by or on behalf" of the proper do mestic industry. In particular, the EC failed to
include the producers of filleted products in its asse ssment under Article 5.4. The EC, therefore, had
no legal basis to initiate an anti-dumping investigation.
4.135 Furthermore, Norway contends that the EC acted inconsistently with Articles 3.1, 3.4 and 3.5
of the Anti-Dumping Agreement because it conducted an examinati on of certain injury factors on the
basis of a sample. Although footnote 13 of the Anti-Dumping Agreement authorizes sampling of the
domestic industry during initiation, and Article 6.10 authorizes sampling in a dumping determination,
the Agreement does not authorize sampling in an injury determination.
5. Dumping Determination
4.136 First, the EC chose to compose a sample on the basi s of the "largest percentage of the volume
of the exports … which can reasonably be investigated".
58 However, the EC included only exporting
producers in the sample, and excluded all independent exporters that did not themselves produce .
The EC thereby failed to examine the largest possible volume of exports from Norway that could have
been examined, in violation of Article 6.10. Even assuming the EC could limit its sample only to
producers, quod non, the EC still failed to sample the ten pr oducers with the largest export volumes,
as it excluded Salmar and Bremnes, again violating Article 6.10.
4.137 Second, Article 2.2.1 states that sales may be rejected by reason of price solely if the
investigating authorities "determine" that the conditions in that provision – including the cost recovery
test – have been met. The EC's rejection of sal es by reason of price does not even mention the term
"cost recovery", far less make a determination that the prices do not provide for cost recovery in a
reasonable period. Before the Panel, the EC does not even assert that it made a determination on cost
recovery. For this reason alone, the EC has violated Article 2.2.1.
4.138 Third, the EC rejected actual sales data to cal culate profit margins for investigated
producers.59 This approach contradicts the approach of the panel, the Appellate Body as well as of the
EC itself, in EC – Tube or Pipe , which required that "actual SG&A and profit data for sales in the
ordinary course of trade" be used if such sales exist, irrespective of the low volume of the sales .60
The EC thereby violated Article 2.2.2.
4.139 Fourth, in calculating Grieg's filleting and financing costs, the EC rejected valid and usable
data supplied by Grieg and, instead, resorted to "f acts available". Although the EC used information
from a secondary source, it argues that it did not use facts available, and that it can thus bypass the
obligations of Article 6.8 and Annex II of the Anti-Dumping Agreement . Norway disagrees.

58 EC's FWS, para. 126.
59 Provisional Regulation, para. 29 ("Five companie s had overall representative sales but it was found
that for only one company were certain types of the product concerned, which were also exported, sold on the
domestic market in the ordinary course of trade"). Although not clear, the EC may have used actual sales data
to calculate a profit margin for certain models for one particular producer.
60 Appellate Body Report, EC – Tube or Pipe Fittings, para. 97.

Article 6.8 and Annex II appli es whenever an authority uses " best information available" "from a
secondary source".
61
4.140 Fifth, the EC violated Article 9.4 of the Anti-Dumping Agreement in its treatment of non-
sampled companies because the EC: (a) incorrectly calculated that margin – something the EC now
acknowledges62 – and (b) failed to exclude from the calcu lation Grieg's margin, which was based on
facts available.63 Separately, Norway also claims that the "residual margin" of 20.9 per cent assigned
to non-cooperating non-sampled producers violates the maximum weighted average margin under
Article 9.4 and includes Grieg's normal value.64
4.141 Sixth, the EC violated Article 6.8 and Annex II in fixing a residual margin in respect of so-
called "non-cooperative" non-sampled companies. The EC argues that it complied with Article 6.8
because it provided a notice of initiation to known co mpanies and to industry associations. The EC's
arguments must be rejected. Similar to Mexico – Rice, the companies that are subject to the residual
margin received no notifications, at all, from the EC (Annex II(1)). 65 Also, having concluded that
certain companies had not provided necessary informati on, the EC did not inform any of them of the
information that was missing (Annex II(6)); it did not give them a chance to provide further
explanations in a reasonable period (Annex II(6 )); and, it did not state how the alleged non-
cooperation hindered the investigation (Article 6.8).
6. Injury
4.142 The EC simply assumed that a sample containing exclusively producers permitted it to draw
conclusions regarding dumping by exporters. The EC composed a sample that was not statistically
valid. In such a situation, the Appellate Body h as cautioned that evidence from the sample could be
used as one " part of the positive evidence" regarding th e volume of dumped imports from non-
sampled companies.66 There must, therefore, be other "positive evidence" to justify the determination
made regarding dumped imports from non-examined companies. The EC provided none. The EC
also improperly included Nordlaks' imports in the volume of dumped imports.
4.143 Norway challenges the EC's determination on price undercutting because the EC failed to take
into account a fundamental fact: namely, that EC producers enjoy a considerable price premium over
the prices of imported Norwegian salmon. The EC was fully aware of this factor 67, but gave no
reasons in the Definitive Regulation to explain why the price premium was not relevant to the price
undercutting analysis and now only presents irrelevant ex post rationalization.
4.144 In the injury determination, the EC examined cer tain financial indicators for a sample of just
five Scottish companies and found that the companies' sales prices declined by 9 per cent when
measured in euros. Norway claims that th e material currency for examining price trends for these
companies is pounds sterling, and not euros. Du ring the period considered, the euro appreciated
against the pound by almost exactly 9 per cent . Thus, from the perspective of the examined
companies, no price decline affected their financial performance because of the movement in
currencies.

61 Title of Annex II of the Anti-Dumping Agreement and Annex II(7).
62 EC's FWS, para. 312.
63 Norway's FWS, paras. 470 to 477.
64 Norway's FWS, paras. 478 to 481.
65 Norway submits a list of those companies in Exhibit NOR-152; this list was submitted to the EC in
Annex 2 to a letter from FHL of 4 May 2005.
66 Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 138.
67 Norway's FWS, paras. 528 and 531 to 538.

7. Causation
4.145 The EC recognizes that "it h as been established that the production costs did increase."68 If
costs had not increased, the domestic indus try would have remained profitable.69 In the investigation,
the EC failed to examine this factor and, therefore, failed to ensure that th e injury caused by cost
increases was not improperly attributed to dumped imports. Furthermore, the EC's determination fails
to provide an explanation disclosing how the eviden ce of record supports the EC's determination that
salmon imports from Canada and the United States cau sed no injury to the domestic industry. Its new
evidence is both inadmissible and irrelevant.
8. MIPs
4.146 Norway has made a prima facie case that the EC's MIPs exceed individual and weighted
average normal values and are, therefore, in violatio n of Articles 9.2, 9.4 and VI:2. The EC has not
even attempted to rebut Norway's calculations. Norway also claims that the EC's variable anti-
dumping duties may not exceed the individual dumping margins determined for sampled companies.
The EC measure does so, in violation of Articles 9.1, 9.2, 9.3 and Article VI:2 of the GATT 1994,
because there is no cap in the EC's measure that limits the duty to the dumping margin. This ceiling is
dictated by the overarching principle expressed in Article VI:2 and Article 11.1 that an anti-dumping
duty is applied only "to the extent necessary to counteract dumping which is causing injury."70
9. Fixed Duties
4.147 The EC does not contest that the ad valorem equivalent of the fixed duty exceeds the
dumping margin for a number of the investigated co mpanies. Instead, the EC argues that its fixed
anti-dumping duties are not actually anti-dumping duties, but "a very specialized [duty] designed to
deter evasion of lawfully imposed anti-dumping dut ies" through fraudulent customs declarations. 71
Therefore, according to the EC, the fixed duties do not represent "specific action against dumping". 72
Although creative, this argument is wrong. The proper characterization of the fixed duty as and anti-
dumping measure is evident inter alia in the legal basis that the EC used to adopt the Definitive
Regulation.
10. Procedural Requirements
4.148 The EC failed to provide Norway with access to all the information in the record of the
investigation that was relevant to Norway's case. The EC does not argue that it was not " practicable"
to show the 68 missing documents to Norway; nor that any of the missing documents was not
"relevant" to Norway's case; nor that any of the documents was not " used" by the authority. In
principle, therefore, the EC accepts that it was obl iged to show the 68 missing documents to Norway
under Article 6.4.
4.149 The EC failed to "inform all interested par ties of the essential facts under consideration",
pursuant to Article 6.9. Norway makes particular arguments relating to the dumping determination,
the definition of the domestic industry, causation, and the remedy determination.
4.150 Norway also claims that the EC viol ated Articles 12.2 and 12.2.2 of the Anti-Dumping
Agreement by failing to provide a reasoned and adequate explanation for a number of its findings.

68 EC's FWS, para. 413. Original emphasis.
69 Norway's FWS, para. 586.
70 Appellate Body Report, US – OCTG Sunset Reviews (Mexico), para. 115. Emphasis added.
71 EC's FWS, para. 501.
72 EC's FWS, para. 508.

The EC's counter-argument is that "Article 12.2 is satisfied when an investigating authority provides
the information that it considers relevant, and the reasons that it held to be decisive."
73 However, it is
absurd to suggest that an authority can decide for itself whether its conduct meets a WTO standard.
That is the task of panels and the Appellate Body.
11. Cost Adjustments
4.151 Norway focuses in this opening statement on two important cross-cutting issues arising from
the EC's submission: (1) the EC's arguments for including all non-recurring costs ("NRC") in the cost
of production and (2) the pervasive factual inaccuracies in the EC's statements.
4.152 Norway argues that the term "costs of production" in Article 2.2.1.1 of the Anti-Dumping
Agreement measures the value of the resources that are used to produce a good .74 Thus, for a cost to
be a cost of production, there must be a relations hip between the cost and production. The EC adopts
an impermissibly expansive defi nition of cost of production. First, the EC considers that any cost
item that benefits "future profitability" of a company or group is a "cost of production" for salmon. 75
Second, the EC also claims that any reduction in the equity or "wealth" of a company is a cost that
benefits production.76 The EC tries to rewrite Article 2.2.1.1 as referring to NRC that " benefit future
and/or current [ profitability]". However, the drafters of the Anti-Dumping Agreement used the word
"profit" in other provisions of the Anti-Dumping Agreement when they saw fit. 77 The relationship
required by the Agreement is between costs and production, not costs and profitability.
4.153 Norway has presented a number of company-sp ecific challenges related to "Non-recurring
costs" (e.g. cost of restructuring and closing fac ilities) and costs unrelated to salmon production (e.g.
costs related to losses on investments in other ac tivities), as well as challenges to what seems basic
factual inaccuracies.
4.154 Norway also challenges the approach of the EC whereby the EC simply totalled up NRC for
a three-year period and divided the total by three. There is no legal basis for using such a three-year
period. The EC has also presented an ex post rationalization of its three-year averaging based on the
"project accounting" methodology allegedly used by the authority. However, the EC did not use
project accounting in its cost calculations. The EC 's arguments also contain several other factual
inaccuracies.
D. FIRST ORAL STATEMENT OF THE EUROPEAN COMMUNITIES
4.155 The following summarizes the European Communities' arguments in its first oral statement.
1. Introduction
4.156 Mr Chairman, Members of the Panel, good morning. On behalf of the European
Communities (EC) I would like to thank you for agreeing to serve on this Panel and to thank the
Secretariat for all the work they have done, and will do in facilitating your task.
4.157 In this dispute Norway has launched a great many claims in respect of the EC's decision in the
salmon anti-dumping proceedings, covering practically every aspect of the measure. The EC has
responded fully and decisively to these claims in its First Written Submission. I do not intend to

73 EC's FWS, para. 564.
74 Norway's FWS, para. 798.
75 EC's FWS, paras. 642, 658, 668 and 672.
76 EC's FWS, para. 642.
77 Article 2.2, 2.2.2 and 2.2.2(iii).

repeat today the points we have made in that Submission, although we of course remain ready to
explain and elaborate any of those points. Rather in this Statement I intend to address the overall
question of the proper role of the Panel in review ing a national decision of this kind, as regards the
establishment and evaluation of issues of fact.
4.158 However, in light of the scattergun style adopted by Norway in its First Written Submission
[and in its First Oral Statement] I think it wort h taking an early opportunity to emphasize a basic
characteristic of the EC's investigation on sal mon dumping and imposition of anti-dumping measures
which are now challenged by Norway. This was an investigation based on, and carried out in
accordance with, rules. In the firs t instance the rules are those of the EC's Anti-Dumping Regulation.
But this Regulation is merely the applicati on of the rules contained in GATT 1994 and the Anti-
Dumping Agreement. In so far as Norway bases its claims on these rules the EC is ready and able to
answer them, and demonstrate the complete consiste ncy of its actions with those rules. But when
Norway engages in loose criticisms of the EC's actions, without reference to WTO obligations, we
will not be replying. And we trust that the panel will treat such statements with similar indifference.
4.159 As the Panel is well aware, unique ly among the WTO agreements, the Anti-Dumping
Agreement contains a specific provision governing the sta ndard of review to be adopted by Panels.
Article 17.6(i) states that:
"in its assessment of the facts of the matte r, the panel shall determine whether the
authorities' establishment of the facts w as proper and whether their evaluation of
those facts was unbiased and objective. If the establishment of the facts was proper
and the evaluation was unbiased and objectiv e, even though the panel might have
reached a different conclusion, the evaluation shall not be overturned …."
4.160 In the salmon investigation the EC authorities were frequently faced with the task of
establishing and evaluating facts, and many such issues have been raised by Norway in its complaints.
The EC believes that there is a particular need in the present case to emphasize this part of the Panel's
responsibilities. Norway's contentions frequently a ppear to be encouraging the Panel to take upon
itself the role of rehearing the matter – a de novo investigation.
4.161 I will devote the rest of this statement to examining how the proper standard should be
applied to the various aspects of this case. For co nvenience I will continue our practice of following
the order in which Norway has presented its claims, however illogical that might seem at times.
2. Standard of Review
(a) Domestic industry
4.162 The legal criterion to be applied regarding the identification of the 'domestic industry' to
which injury is caused by dumping is set out clearly in Article 4 of the Anti-Dumping Agreement: 'the
domestic producers as a whole of the like products or to those of them whose collective output of the
products constitutes a major proportion of the tota l domestic production of those products.' In the
salmon investigation the EC authority was faced w ith a complicated situation in which the product
goes through one or more of a series of processes and, in some instances, operators, before it is sold.
The facts relating to the various 'presentations' of salmon are not in doubt, but the way in which those
facts should be evaluated in order to identify the 'producer' of the salmon has proved to be
contentious.
4.163 The EC does not suggest that there is no law in the application of the notion of 'producer'.
Thus, it may be apparent that the firms in question, although they are producers, are not producers of
the like products, just as, for example, the cattle producers in the Manufacturing Beef case were not

producers of beef. However, once the legal rul es have been applied and have not excluded the
situation as one in which the firms in question qua lify as producers of the like product, the authorities
have the task of evaluating the facts to see whether this criterion is met. This evaluation is not a
simple yes/no issue. Particularly in a complex s ituation such as that of salmon production, it involves
weighing factors some of which may be positive and others negative.
4.164 It was following such a process of evaluation that the EC investigating authority arrived at the
conclusion that filleting-only entities should not be in cluded in the notion of the EC 'producers' of
salmon. It's decisions should therefore be assessed in accordance with the criteria of Article 17.6(i).
4.165 The need to evaluate facts also arises in the u se of sampling in the analysis of the condition of
the domestic industry. That sampling is a satisfactory method of factual examination is reflected in its
explicit endorsement by the Anti-Dumping Agreement as regards the determination of the degree of
support for complaints and the level of dumping margin s. Thus, the use of sampling is not inherently
biased or unobjective. In fact, in some circumst ances it may be the only method reasonably available
to an investigating authority. Furthermore, it should not be overlooked that in the present case, the
data established at the level of the sample have b een verified, to the extent possible, with data
generated from other sources.
(b) Dumping issues
4.166 The application of the correct standard of review is also an important consideration as regards
several of the dumping issues raised by Norway in section V of its First Written Submission.
4.167 Firstly, the EC's decision (substantially in ag reement with Norway) to examine dumping by
focusing on those firms that produced the salmon whic h was exported to the EC involved elements of
factual evaluation on the part of the investigating au thority in deciding how best to achieve the goals
of the Anti-Dumping Agreement. More especially, in the choice of firms as regards the criterion in
Article 6.10 of the Anti-Dumping Agreement of the "largest percentage of the volume of the exports
from the country in question that can reasonably be investigated" the EC authority had to make a
difficult evaluation of the facts that it had available. Another investigating authority, or the Panel had
it been in that position, might have chosen a sligh tly different list of companies for examination, but
this is not a ground for condemning the EC decision, which was made objectively and without bias.
4.168 Secondly, in its handling of certain costs of the Norwegian producer Grieg, the EC was faced
with particular problems regarding the establishment of the facts. Norway has attempted to present
the situation as one where the EC authority invoked th e rules on 'facts available'. The fallacies in
Norway's arguments are explained in the EC's First Written Submission. The special rules of
Annex II of the Anti-Dumping Agreement therefore do not apply. However, the actions of the EC
authority continue to be subject to the standard laid down in Article 17.6(i) – the establishment of
facts must be proper. The detailed account of the EC authority's dealings with Grieg that is given in
the Submission show that the requirements of this standard were more than satisfied. The Panel
should therefore not interfere with the authority's findings.
(c) Injury
4.169 The issue of the standard of review also arises in regard to Norway's attack on the EC for its
conclusion that all Norwegian salmon exports were being dumped and were causing injury to the
domestic industry. In its First Written Submission the EC gives the justification for treating all
imports from Norway as being dumped. For pr esent purposes the EC wish es only to identify the
standard of review that the Panel should exercise in this regard.

4.170 The process in which the EC authority was e ngaged in reaching its conclusion was one of
evaluation of facts. It had the unequivocal fact ual information gathered from the investigated
companies. Additionally, it also had, for exampl e, Eurostat data. The only question to be addressed
by the Panel is whether Norway has establishe d that the EC's evaluation was biased and/or
unobjective. The EC contends that Norway has presented no evidence to support such a claim.
4.171 An even more straightforward situation for the operation of the basic standard of review is
that concerning the evaluation of price premium and the price trends. The EC is not here concerned to
repeat the justifications that it supplied in its First Written Submission for adopting this approach.
Rather, it wants to emphasize that the issue is not one on which the Panel is expected to make its own
decision. It is for Norway to establish that the decision made by the EC investigating authority was
biased and unobjective.
(d) Causation
4.172 Norway has also made claims (under Article 3.5 of the Anti-Dumping Agreement) regarding
the EC's analysis of causation in the salmon investig ation. Here again the proper application of the
standard of review is crucial for the correct exercise of the Panel's jurisdiction. The need to 'separate
and distinguish' the injurious effects of the vari ous factors has been firmly emphasized by the
Appellate Body. The steps that the EC took in this respect must be assessed according to the
'unbiased and objective' criterion of Article 17.6(i). It is not for the Panel, still less for Norway, to
reach alternative conclusions and claim that the EC was therefore wrong and in breach of Article 3.5.
4.173 Norway focuses on one particular aspect of causation – the effect of imports of salmon from
Canada and the US – and criticizes the EC for failing to provide an e xplanation for its finding that 'on
the basis of information gathered during the investiga tion, it appears that the vast part of imports from
USA and Canada consists mostly of wild salmon, so that it is unlikely that imports from these two
countries could have a significant impact on the situation of the Community industry.'
78 Here the issue
is one of establishment of the facts, and Norway has provided no basis for concluding that the EC has
fallen short of the 'proper' standard required by Article 17.6(i).
(e) Producers' costs
4.174 A series of complaints are made by Norway in Section XI of its First Written Submission
regarding the determination of producing companies' costs. Such determinations were of crucial
importance because the EC had in all cases to construct normal values from companies' costs and
profits rather than rely on their sales prices. Rules governing allocation of costs are contained in
Article 2.2.1.1 of the Anti-Dumping Agreement, but they are largely confined to broad statements of
principle, whereas many of the ques tions that arose during the investig ation, or that are now posed by
Norway, are markedly factual in character.
4.175 Most of these questions concerned the evaluation of facts. In this investigation factual
evaluations had to be carried out at various levels . On the one hand, the EC was faced with detailed
issues regarding particular cost items, such as how in a particular company to account for severance
pay or destruction of salmon fry. On the other ha nd, it had to make evaluations of a strategic
character that would have implications in a whole range of individual circumstances.
4.176 Two such strategic issues can be identified. Firstly, because of the peculiar characteristic of
the salmon industry that production takes several year s, the EC (in line with the leading producers)
decided to apply a system of project accounting, i.e. one that takes account of all the costs incurred

78 Provisional Regulation, Recital 96. Also Definitive Regulation, para. 85.

over the whole period of time (three years) that it takes to produce salmon. The justification for
adopting this approach is given in the EC's First Written Submission, and need not be repeated here.
4.177 Secondly, the EC found itself in disagreement with the companies regarding the treatment of
'non-recurring' costs. To some extent this disagreem ent is legal in character, and concerns the correct
interpretation of Article 2.2.1.1. Thus, Norway's a ttempt to read this provision in order to prevent
allocation of costs that do not benefit production is answered and refuted in the EC's First Written
Submission. However, once this legal issue is de termined there remain important decisions to be
made regarding the allocation of non-benefiting, non-recurring costs. The EC explains in its
Submission how it made these decisions.
4.178 For the present purposes it is not the substance of these issues that is important but their
character as evaluations of fact. In accordance with Article 17.6(i) the decisions that the EC reached
in regard to the use of project accounting and th e allocation of non-recurring costs must be accepted
by the Panel unless Norway can show them to have been biased or not objective. The EC contends
that the explanations which it has given for these decisions amply satisfy these standards. In some
respects it has the benefit not merely of the force of its own arguments, but also of the expert and
objective guidance provided by standards of the International Accounting Standards Board.
4.179 In addition to these strategic decisions the EC investigating authority made numerous
individual decisions about costs, often relating to the allocation of non-recurring costs. Norway has
challenged many of these decisions in these proceedi ngs. They are explained in various parts of
Section XII of the EC's First Written Submission, and must also be assessed in accordance with the
criteria of Article 17.6(i) of the Anti-Dumping Agreement. The Panel must not take on itself the task
of deciding what would be the 'correct' rulings in su ch cases. Rather it is for Norway to prove that the
steps taken by the EC failed to meet the criteria of objectivity and avoidance of bias.
3. Conclusion
4.180 Mr Chairman, Members of the Panel, I began this Statement by pointing to a particular risk
that I believe accompanies these proceedings. This risk is that Panel would start to act as an appeal
rather than as a review body. Of course, I do not suggest that it would deliberately take on itself such
an improper role. Rather the danger is that with th e kind of issues that have to be examined the most
natural response of the Panel would be to express it s own view as to how they should be, or should
have been, decided. Frankly, given the manner in which it has presented the issues, that is an
approach which the Complaining pa rty would apparently like to enc ourage. The EC urges the Panel
to resist this temptation. In particular, wherever the EC authority was called on to evaluate a factual
situation, we should bear in mind that the issue is not whether it arrived at the 'correct' solution, but
whether it behaved objectively and without bias. Furt hermore, it is for Norway to prove that the EC
did not meet these standards.
4.181 We remain confident that the Panel will respect this principle. I thank the Panel for its
attention and look forward to answering any questions that you may have.
E. S
ECOND WRITTEN SUBMISSION OF NORWAY
4.182 The following summarizes Norway's arguments in its second written submission.
1. Introduction
4.183 This submission addresses arguments from the EC's First Written Submission that were not
addressed in Norway's Opening Statement, and al so counters arguments made by the EC in its
Opening Statement, and Closing Statement of 13 December 2006 at the First Substantive Meeting

with the Parties ("Closing Statement"). To avoid repetition, Norway provides extensive cross-
references to the arguments made in its earlier s ubmissions and in today's responses to the Panel's
questions.
2. Seven of the EC's New Exhibits are Inadmissible and Support Improper Ex Post
Rationalizations
4.184 The Panel declined Norway's request, in its lett er of 4 August 2006, to request from the EC a
list of documents that form part of the record of the EC's investigation. Norway now finds itself in the
same position that Brazil did in EC – Tube or Pipe, confronted by seven new exhibits that it has never
seen before. In Norway's view, all seven of the contested Exhibits – EC-2, EC-10, EC-12, EC-13,
EC-14, EC-15, and EC-16 – must be rejected as inadmissible because they contain information that
the EC has been unable to demonstrate was before th e investigating authority; that was not shown to
interested parties under Article 6.4; that was not disclosed as essential fact s under Article 6.9; and,
that is nowhere identified or mentioned in the pub lished determinations. Moreover, the new reasons
that the EC advances on the basis of this new information are also inadmissible as ex post
rationalizations not contained in the published determination.
3. Standard of Review
4.185 In the absence of substantive arguments to de fend its flawed measure, the EC appears to
believe that its best chance of prevailing in this di spute is to persuade the Panel not to undertake the
"critical and searching" review that the Appellate Body requires. 79 However, in making these
arguments80, the EC misrepresents the standard of review in two important respects.
4.186 First, the EC misrepresents the scope of Article 17.6(i) of the Anti-Dumping Agreement .
Although Article 17.6(i) confers discretion on an authority in the establishment of the facts and in
their evaluation, a panel cannot simply to defer to the conc lusions of the national authority, and must
provide critical oversight of the authority.81
4.187 More importantly, the EC fails to recognize that, although an authority enjoys a certain
discretion in its treatment of the facts, it must always provide a reasoned and adequate explanation to
demonstrate that it has complied with the substantive requirements of the Anti-Dumping Agreement
and Article VI of the GATT 1994.82
4.188 Second, the EC's Opening Statement misrepresents legal issues as factual issues. There are
six examples of this: who are "producers" for purposes of Article 4.1; the interpretation of
Article 6.1083; the interpretation of Article 6.8 and Annex II 84, whether Article 3 permits certain
factors affecting price comparisons to be ignored; the legal requirement in Article 3.5 for an authority
to demonstrate that it properly performed the non -attribution analysis; and legal interpretation of
Articles 2.2 and 2.2.1.1 in deciding that certain costs were "costs of production" in the IP 85.

79 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada) , para. 93, citing
Appellate Body Report, US – Lamb, para. 106.
80 See, for instance, the EC's Opening Statement at the First Substantive Meeting with the Panel
("Opening Statement"), paras. 8 – 9, 12 – 13, 16, and 17.
81 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), para. 93.
82 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), para. 99.
84 Surprisingly, the EC's Opening Statement contradicts the argument in its FWS, para. 307, that the
dispute regarding finance costs is not one of evidence or fact, but concerns a point of law.

4. The EC Incorrectly Defined the Product Under Consideration
4.189 The interpretive issue that faces the Panel is whether the EC is correct that a "dumping"
determination requires solely that likeness be establis hed for models of the product. According to the
EC, an authority can bundle any pr oducts together for purposes of a dumping determination, even if
they do not "resemble" each other at all,
86 so long as likeness is established at the level of " models" of
the product.
4.190 Norway's claim is that the references to " a product", "the product under consideration" and
"the product under investigation" in Article 2.1, 2.6 and 6.10 of the Anti-Dumping Agreement, and "a
product", " the product ", and " any dumped product " in Article VI of the GATT 1994 must be
interpreted as referring to a produc t whose sub-parts or models are all "like" each other. This
interpretation stems also from the definition of "dum ping" in Article 2.1 and Article VI:1, in terms of
which "dumping" involves a determination that the export price of " a product " is less than " its"
normal value. Thus, even though an authority ma y conduct intermediate comparisons for models, the
model-specific comparison results must be aggregated into a single, overall determination. 87
4.191 Because the EC determined the product scope of the investigation inconsistently with
Article 2.1, it violated: (1) Articles 5.1 and 5.4 in initiating an investigation into an incorrectly
determined product; (2) Article 2.1, read together wi th 2.6, in making its dumping determinations into
an incorrectly determined product; and (3) Articles 3. 1, 3.2, 3.4, 3.5 and 3.6, in making its injury
determination for a domestic industry that produces an incorrectly determined product.
5. The EC Incorrectly Defined the Domestic Industry
4.192 WTO case-law demonstrates that Article 4.1 imposes an obligation on the investigating
authority to determine the "domestic industry" consistently with the definition in that provision.88 The
EC did not do so.
4.193 The EC included only 15 complainants in the domestic industry. The EC excluded EC fillet
producers from the scope of the domestic industry. In contrast to the salmon growing industry, which
has a minuscule production of 18,000 tons, the fille ting industry produces "several hundred thousand
tons". There is, therefore , a profound mismatch between the product scope and the scope of the
domestic industry that is contrary to Article 4.1. The EC 's suggestion that whole/HOG fish and fillets
are the same product is also nonsense. The two products are produced by different industries using
different production methods; they have different physical characteristics and different end uses;
consumers perceive them differently; they command very different prices in the marketplace ( see the
EC's MIPs); and they are subject to different regulatory treatment (e.g. tariff classification).
4.194 Without adequate explanation, the EC also excluded six other categories of EC salmon
producer from the scope of the domestic industry. 89 However, under Article 4.1, the domestic
industry cannot be confined to producers from a particular sector or segment of the industry,
especially the complainants.

86 EC's FWS, para. 37.
87 Appellate Body Report, US – Zeroing (Japan) , para. 151, quoting Appellate Body Report, US –
Softwood Lumber V (Article 21.5 – Canada) , para. 104; Appellate Body Report, US – Zeroing (EC), para. 126;
and Appellate Body Report, US – Softwood Lumber V, para. 93.
88 Norway's Opening Statement, paras. 45 – 47.

4.195 The EC also violated Article 5.4 in initiating the investigation, and Article 3.1 in making an
injury determination, on the basis of a domestic indu stry that is determined inconsistently with the
definition in Article 4.1.
4.196 Furthermore, Article 3 does not permit sampling of the domestic industry for purposes of the
injury determination. Even assuming that sampling were permitted under Article 3 ( quod non), such
sampling must follow the rules under footnote 13. 90 This is the sole provision in the Agreement that
addresses sampling of the domestic industry. The EC did not respect the rules in footnote 13
governing when and how sampling of the domestic industry can be undertaken. Furthermore, any
sample must permit the authority to conduct an " objective examination" based on "positive evidence".
The EC failed to respect those requirements because th e EC's sample comprises solely a subset of the
complainants, which are the producers most likely to be in an unhealthy economic condition. Thus,
the EC's sample makes an injury finding more lik ely, thereby "favour[ing] the interests of [a
particular] interested party or group of interested parties".91
4.197 Finally, in its Closing Statement, the EC cont ended that it must exclude EC fillet producers
from the investigation because otherwise "the Sco ttish salmon growers in this case [would have] had
no effective remedy, since the EC filleting-only firms c ould forever block any anti-dumping
proceeding."92 This astonishing statement is an admission that the EC deliberately tailored the scope
of the industry to suit the needs of Scottish growers.
6. The EC's Dumping Determinations Are Flawed
(a) The EC's selection of the sample of Norwegian producers violated Article 6.10 of the Anti-
Dumping Agreement
4.198 To recall, Norway argues that the EC violated Article 6.10 because it:
• Included only 3 out of the 10 largest exporte rs and producers in its sample. The
sample therefore does not account for the "largest percentage of the volume of
exports that can reasonably be investigated".
• Excluded from the scope of investigation a ll independent exporters, even though they
account for the majority of exports from Norway.
• Excluded from its producers-only sample two pr oducers, Salmar and Bremnes, that
accounted for the 3rd and 7th largest export volumes to the EC during the IP.

4.199 The EC argues that the "or" in the firs t sentence of Article 6.10 is disjunctive,
93 and that an
authority can choose to exclude all exporters from an investigation, instead calculating margins for
producers only. Norway continues to a ssert that the "or" in Article 6.10 is conjunctive and refers the
Panel to its answer to Question 76. Norway ar gues that there is no preference for producers in
Article 6.10, and that exporters and producers are on an equal footing. The Appellate Body confirmed
in US – Zeroing (Japan) that the focus of the Agreement is on export pricing behaviour. 94
Furthermore, existing case law contradicts the EC's interpretation of Article 6.10. The Panel in Korea
– Paper clarified that:

90 See also Norway's Opening Statement, para. 280.
91 Appellate Body Report, US – Hot-Rolled Steel, para. 193.
92 EC's Closing Statement, p. 1.
93 EC's FWS, paras. 142 to 143.
94 Appellate Body Report, US – Zeroing (Japan), para. 165.

… Article 6.10 mentions "exporters" and "producers" of the subject product and
requires that an individual margin be calculated for each of them.
95
4.200 Norway disagrees with EC's contention that practical problems arise from its interpretation,
and refers the Panel to its respon se to Question 77. With respect to the non-inclusion of Salmar and
Bremnes in the sample, the EC argues that FHL did not bring relevant facts about Salmar to the EC's
attention96 and that Bremnes was left out of the sample because FHL had not proposed Bremnes. 97
This is both factually incorrect, and substantivel y wrong. A merely facultative consultation process,
in which the authority holds the power of decision, cannot relieve the authority of its substantive
obligation to include the largest percentage of volume of exports in the sample.
(b) The EC violated Articles 2.2 and 2.2.1 of the Anti-Dumping Agreement by failing to
determine that below cost sales were made at prices that did not permit the recovery of costs
within a reasonable period of time
4.201 The essence of Norway's argument is, first, that the EC did not make the "determination"
required by Article 2.2.1 to the effect that below-co st sales were made at prices that did not provide
for cost recovery within a reasonable period of time. A "determination" must be set forth explicitly.
However, the EC nowhere even mentioned a cost-recovery test. Second, even assuming the EC could
make an implicit determination for cost recovery, the EC did not apply a test that would correctly test
for cost recovery.
4.202 Norway refers the Panel to its response to Qu estions 82 and 83, where Norway explains why
the "reasonable period of time" cannot be equated with the IP. Further, the last sentence of
Article 2.2.1 does not establish an exhaustive test for determining whether below-cost prices provide
for the recovery of costs within a r easonable period. It merely describes one situation in which an
authority must conclude that prices allow for cost recovery in a reasonable period.
(c) The EC violated Article 2.2.2 by improperly rejecting actual sales data because of the low
volume of sales
4.203 In determining amounts for SG&A costs and for pr ofits, Article 2.2.2 allows the authority to
disregard data solely from sales that are not in th e ordinary course of trade. As the panel and
Appellate Body held in EC – Tube or Pipe Fittings, the text of Article 2.2.2 does not permit data to be
rejected on the basis of the low sales volume.
4.204 The EC improperly rejected actual profits and selling, general, and administrative ("SG&A")
data when constructing normal value on the basis th at the volume of the sales at issue was too low.
First, the EC rejected domestic sales data if the domestic sales volume was less than 5 per cent of
export sales either for the product as a whole or for a particular model. Second, the EC rejected
domestic sales data if the volume of profitable sales was less than 10 per cen t of total domestic sales
by product model.
4.205 By applying the 10 per cent test, the EC improperly excluded domestic sales data by reason of
the price and volume of the loss-making sales. In so doing, the EC acted inconsistently with
Article 2.2 because, for the companies affected by this test, the EC was not permitted to construct

95 Panel Report, Korea –Paper, para. 7.157. See, also, Appellate Body Report, US – Hot-Rolled Steel,
para. 118; Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, footnote 186; Appellate Body
Report, US – Zeroing (EC), para. 129; Appellate Body Report Mexico - Rice, para. 216; Appellate Body
Report, US – Softwood Lumber V, footnote 158; and Panel Report, Mexico –Rice, paras. 7.182 and 7.183.
96 EC's FWS, paras. 189 - 190.
97 EC's FWS, para. 191.

normal value for the models concerned. The EC also violated Article 2.2.2 because, once it had
decided to construct normal value, it used the 10 per cent test again to discard actual profit data.
Norway, therefore, requests that the Panel find that the EC acted inconsistently with Articles 2.2 and
2.2.2.
(d) The EC violated Article 6.8 and Annex II of th e Anti-Dumping Agreement in its use of facts
available to determine normal value for Grieg
4.206 For Grieg's filleting and finance costs, the EC used information from a secondary source,
rejecting information submitted by the company. The EC's defence rests mainly on the contention
that, in using information from a secondary source it did not actually use "facts available" within the
meaning of Article 6.8 of the Anti-Dumping Agreement .98 However, there is no third category of
information under the Anti-Dumping Agreement. If secondary source information is used, Article 6.8
and Annex II apply. The EC rejected information that it was not entitled to reject under paragraph 3
of Annex II; and failed to take the procedural steps required by paragraph 6 of Annex II before
resorting to facts available.
4.207 The EC also expressly states that it would only have accepted Grieg's information if it had
been presented during the on-the-spot verification, and that it would never have contemplated a
second verification visit. 99 The EC thereby deprives Grieg of its rights under Annex II because no
deficiency letter was sent out prior to the verificati on visits, but only in March. Grieg then provided
the necessary information in one week. By in sisting on immediate production of documents as
verification, the EC failed to give Grieg a "reasonable period" to submit information.
(e) The EC's treatment of non-sampled companies violates Articles 6.8 and 9.4 of the Anti-
Dumping Agreement
4.208 The EC violated Article 9.4 because it (i) incorrectly calculated the "all others" rate; (ii) failed
to exclude Grieg's margin from the calculation of the "all others" rate, even though it was based on
facts available; and (iii) assigned to the allege dly non-cooperating, non-sampled producers a "residual
margin" of 20.9 per cent, which exceeds the maximum weighted average margin under Article 9.4.
4.209 The EC expressly acknowledged that it incorrectly calculated the weighted average dumping
margin,100 but claims that it is without practical or legal effect due to the imposition of MIPs, is
without merit. Norway has shown that the EC se t the level of the fixed duty for all companies,
including non-examined companies, by reference to the weighted average margin of dumping referred
to in Article 9.4(i). The EC also originally imposed ad valorem duties and could revert to these duties
at any time.
4.210 Norway rejects the EC's argument that it co mplied with Article 6.8 because it published a
notice of initiation in the Official Journal and sent that notice to known companies and to industry
associations.
101 Neither the publication of the Notice of Initiation in the Official Journal nor the
provision of that Notice to industry associations constitutes the notice required by Article 6.8 and
Annex II. In this respect, Norway respectfully refers the Panel to its detailed response to Question 88.
4.211 Similar to Mexico – Rice , sixty-seven of the companies that are subject to the residual rate
received no notification, at all, from the EC, contrary to Annex II(1). 102 The EC not only failed to

98 EC's FWS, paras. 290 and 307 – 308.
99 EC's FWS, paras. 295 and 296.
100 EC's FWS, para. 312.
101 Norway's Opening Statement, paras. 105 – 106.
102 See Exhibit NOR-152. This list was provided by FHL to the Commission on 9 May 2005.

provide any notice of initiation to those companies, it also failed to inform them of the information
that was missing (Annex II(6)); it did not give them a chance to provide further explanations in a
reasonable period (Annex II(6); and, it did not st ate how the alleged non-c ooperation hindered the
investigation (Article 6.8). The EC, therefore, did not comply with Article 6.8 and Annex II.
7. The EC's Injury Determination Violated Article 3 of the Anti-Dumping Agreement
(a) The EC violated Articles 3.1, 3.2 and 3.5 of the Anti-Dumping Agreement in its examination
of the volume of dumped imports
4.212 Where the second sampling option is used, the Appellate Body has cautioned that evidence
from the sample can be used as just one " part
 of the positive evidence" regarding the volume of
dumped imports from non-sampled companies. 103 Thus, in this investigation, the scope for
extrapolation was limited by the need for additiona l "positive" evidence. None was provided by the
EC in its determination. Furthermore, the EC was not entitled to include Nordlaks' imports in the
volume of dumped imports because this company was dumping at de minimis levels.
(b) The EC violated Articles 3.1, 3.2 and 3.5 of the Anti-Dumping Agreement in its examination
of price undercutting
4.213 The EC ignored the fact that EC salmon pro ducts generally enjoy a price premium in the
marketplace of 12 per cent – a price premium rec ognized by the EC on numerous occasions including
in its Definitive Disclosure and First Written Submission 104, and taken into account for the
establishment of its injury margin (and the level of the MIP). If this price premium is taken into
account, there was no price undercutting.
(c) The EC violated Articles 3.1 and 3.4 of th e Anti-Dumping Agreement because it failed to
evaluate objectively price trends affecting EC producers
4.214 In the injury determination, the EC examined certain financial indicators, including price
trends, for a sample of just five Scottish companies. In so doing, the EC found that the companies'
sales prices declined by 9 per cent when measured in euros.
4.215 Norway claims that the material currency fo r examining the financial performance of these
Scottish companies is pounds sterling, and not euro s. During the period considered, the euro
appreciated against the pound by almost exactly 9 per cent . Thus, from the perspective of the
examined companies, no price decline affected their financial perfor mance because of the movement
in the value of the currencies. Norway submitted graphs to depict the misleading impression created
by using euros.
8. The EC Violated Articles 3.1 and 3.5 of the Anti-Dumping Agreement in Concluding
that Dumped Imports Caused Material Injury to the EC Domestic Industry
4.216 The EC failed to ensure that injury caused by factors other than dumped imports was not
improperly attributed to dumped imports. It is an established fact that the costs of the sampled
Scottish companies rose sharply from 2001 to 2002, and remained at a higher level throughout the
period considered. In violation of Article 3.5, the EC failed to undertake any evaluation of this factor.
Further, the EC concluded that salmon imports from Canada and the United States consist mostly of
wild salmon that, it found, does not compete with fa rmed salmon. However, the EC failed to disclose
any facts in support of these conclusions, far less set forth "an evidentiary path" leading from the

103 Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 138.
104 EC's FWS, paras. 358 – 359.

evidence in the record to its determinations. As stated by the Appellate Body, a reasoned and
adequate explanation "is not one where the conclu sion does not even refer to the facts that may
support that conclusion".105
9. The MIPs Imposed by the EC Violate Arti cle VI:2 of the GATT 1994 and Article 9 of
the Anti-Dumping Agreement
4.217 Norway and the EC agree 106 that any MIPs imposed may not exceed the individually
determined normal values for the sampled compan ies, or the weighted average normal value in
respect of non-sampled companies. Norway has made a prima facie case that the EC's MIPs exceed
individual and weighted average normal values, in violation of Articles 9.2, 9.4 and VI:2. The EC has
made no attempt to refute Norway's calculations.
4.218 Norway also claims that the EC may not impos e variable anti-dumping duties, using MIPs, in
excess of the individual dumping margins determined for sampled companies. The EC's measure
violates these requirement because it contains no me chanism to limit the amount of duties initially
imposed to the dumping margin. By so doing, the EC violates Articles 9.1, 9.2, 9.3 and Article VI:2
of the GATT 1994.
4.219 Moreover, Norway also claims that the EC acted inconsistently with Article 9.2 by calculating
the MIPs using a three year aver age exchange rate to convert the constructed normal values from
Norwegian kroner to euros. Norway has addressed th is claim in reply to Question 69. By relying on
historical exchange rates, the EC has overstated by 5.2 per cent the normal value that was determined
during the investigation.
10. The EC's Fixed Duties Are in Violation of Arti cles 9.1, 9.2, and 9.3 of the Anti-Dumping
Agreement
4.220 The EC violated Articles 9.1, 9.2 and 9.3 of the Anti-Dumping Agreement because, in certain
circumstances, it imposes fixed duties on examined producers that exceed the margins of dumping
determined for these producers. For a num ber of the investigated companies, the ad valorem
equivalent of that duty exceeds the dumping margin. Norway has demonstrated this in Table 10 of its
First Written Submission.
107
4.221 The EC does not contest the correctness of Norway's calculations. Instead, the EC argues that
its fixed anti-dumping duties are not actually anti-dumping duties, but instead "a very specialized
[duty] designed to deter evasion of lawfully imposed anti-dumping duties" through fraudulent
customs declarations.
108 Therefore, according to the EC, the fixed duties do not represent "specific
action against dumping". 109 Although creative, this argument is wrong. As set forth in Norway's
Opening Statement, the EC regulation characterizes the fixed duties as a "fixed anti-dumping duty"; it
adopted the fixed duty under the EC Basic Regula tion that permits action against dumping; and the

105 Appellate Body Report, US – Steel Safeguards, para. 326.
106 The EC refers to a normal value "adjusted … to a CIF Community frontier level". (EC's FWS
para. 463) To the extent that the EC is suggesting that the limit of MIPs is normal value plus some additional
amount, Norway disagrees. The EC is unable to point to any text that authorizes a Member to increase the
prospective reference price beyond normal value, which provides the threshold of fair pricing in Article 2.1 and
Article VI:1.
107 Norway's FWS, para. 679.
108 EC's FWS, para. 501.
109 EC's FWS, para. 508.

EC has no legal authority to impose penalties for customs fraud because the EC member States enjoy
this competence.
110
11. The EC Violated the Procedural Requirements in Articles 6 and 12 of the Anti-Dumping
Agreement
4.222 First, the EC violated Articles 6.4 and 6.2 by failing to disclose non-confidential information
contained in the record of the investigation. Norway has pointed to 68 missing documents, for which
the EC has provided no answer or merely incorr ect and unsubstantiated assertions. The EC does not
argue that it was not " practicable" to show the 68 missing documents to Norway during the visits to
the authority in November and December; nor that any of the missing documents was not " relevant"
to Norway's case; nor that any were not " used" by the authority. In principle, therefore, the EC
accepts that it was obliged to show the 68 (or more) missing documents to Norway under Article 6.4.
4.223 Furthermore, the EC also failed to show Norw ay the information contained in the contested
Exhibits EC-2, EC-10, EC-12, EC-13, EC-14, EC-15 and EC-16. If the Panel declines to reject them,
and accepts that this information was before the aut hority, the EC violated Article 6.4 by failing to
show Norway that information during the investigation.
4.224 Second, the EC violated Articles 6.9 and 6.2 by fa iling to disclose the essential facts that
formed the basis for its decision to impose duties. Norway makes particular arguments relating to the
disclosure regarding the dumping determination, the definition of the domestic industry, causation,
and the remedy determination.
4.225 Third, the EC violated Articles 12.2 and 12.2.2 by failing to provide a reasoned and adequate
explanation for its findings and conclusions. Norway considers that the EC's published determination
– the Definitive Regulation – is characterized by a general failure to explain how the facts in the
record support the factual and legal determinations. Typically, the EC presents bald conclusions that
make no reference to the facts in the record th at support the conclusion. Bald, unsubstantiated
assertion is, however, simply not good enough to meet the requirements of the Anti-Dumping
Agreement. As the Appellate Body held, "a 'reasoned conclusion' is not one where the conclusion
does not even refer to the facts that may support that conclusion ."111 Moreover, a "reasoned and
adequate explanation … must be clear and unambiguous . It must not merely imply or suggest an
explanation. It must be a straightforward explanation in express terms." 112 Norway requests the
Panel to follow the earlier case-law and find that the EC violated Article 12.2 and 12.2.2.
12. The EC's Determination of Normal Value Violated Article 2 of the Anti-Dumping
Agreement because of Improper Adjustments to Individually Examined Producers' Cost
Related Data
(a) Introduction
4.226 In constructing normal value for the sampled pr oducers, the EC systematically revised the
reported costs of production ("COP") and SG&A cost s upwards by significant amounts – on average
by 22 per cent. 113 As a result of the improper adjustments, the margin of dumping for seven of the
producers was significantly elevated and, for one producer, dumping was found where there was
none. Norway maintains that, in making these adjustments, the EC violated Articles 2.1, 2.2 and

110 Norway's Opening Statement, paras. 157 - 163.
111 Appellate Body Report, US – Steel Safeguards, para. 326. Emphasis added.
112 Appellate Body Report, US – Line Pipe, para. 217.
113 See Summary Table of the EC's Cost Adjustments. Exhibit NOR-99.

2.2.1.1 of the Anti-Dumping Agreement because it failed to determin e the company's respective COP
correctly and, as a result, improperly determined normal value.
(b) The EC's improper inclusion of NRC and operating losses in the costs of production
4.227 For the EC, any cost of running a business is a co st of producing salmon, as is any cost that
either impacts profits or decreases the wealth of an enterprise that produces salmon as part of its
business. Thus, for the EC, there is no enquiry as to whether a cost contributed to the production and
sale of the like product during the IP.
4.228 The EC interpretation of the Anti-Dumping Agreement is wrong. Norway argues that the term
"costs of production" in Article 2.2.1.1 of the Anti-Dumping Agreement measures the value of the
resources that are used to produce a good .114 For a cost to be a "cost of production", there must,
therefore, be a relationship between the cost and pr oduction. The first sentence of Article 2.2.1.1.
confirms this relationship, by providing that the relevant costs are those " associated with the
production". Article 2.2.2 also speaks of costs "incurred" " in respect of production and sale". And,
finally, Article 2.2.1.1 refers to costs that "benefit" production.
4.229 The authority's duty under Article 2.2.1.1 to consider evidence on cost allocation is also
premised on the view that only those costs contributing to production during the IP can be included in
normal value. Cost relating to other periods cannot be included.
4.230 In its First Written Submission, Norway explai ned in considerable detail why certain NRC
and operating losses do not benefit production in the IP . To give but two examples: Regarding the
costs [[XXX]] incurred on the closure of sales operations in [[XXX]] 115, the EC now admits that it
was incorrect to include these costs. 116 Furthermore, the EC was well aware that [[XXX]] investment
loss on the fishing boat company, [[XXX]], was to tally unrelated to salmon production. In its
Opening Statement, the EC actually concedes that th e disputed costs do not have a relationship with
production because it refers to them as: " non-benefiting, non-recurring costs". 117 The Panel should,
therefore, find that the EC violated Article 2.2.1. 1 and in consequence also violated Articles 2.1 and
2.2.
(c) Averaging of NRC over a three year period for several companies
4.231 The EC has attempted to justify its use of a three year period for averaging NRC (which had
the effect of increasing the COP for the companies), on the grounds that it calculated all costs for all
sampled companies on the basis of project accounting (PA). Norway explained to the Panel at the
first meeting that this is incorrect as a matter of f act and that the EC reliance on a PA approach could
not in any case justify its recourse to three year av eraging which was based on different reasons in the
published determination . Finally, Norway also submits that the NRC concerne d do not benefit
current or future production. Accordingly, none of the costs subject to the three-year averaging
approach may be included in the COP under Article 2.2 and 2.2.1.1 because they are not "costs of
production".

114 Norway's FWS, para. 798.
115 This is explained in detail in Norway's First Written Submission, paras. 890 – 893.
116 EC's FWS, para. 676.

(d) The EC's improper adjustments relating to finance costs and smolt cost
4.232 Norway also contests the EC's use of a three-year average period to calculate the finance costs
of [[XXX, XXX and XXX]]. The EC readily admits th at its approach led to finance costs that were
higher than would have been the case using the IP.
118
4.233 The EC also made improper adjustments for smolt costs incurred by [[XXX]], [[XXX]] and
[[XXX]]. The EC now asserts that it remedied the situation for [[XXX]] and for [[XXX]] 119 between
definitive disclosure and the Definitive Regulation. Although this assertion may be correct, Norway
has no basis for confirming its correctness. The EC's did not disclose the "essential facts" underlying
the revised dumping determinations for the two companies, implying a breach of Article 6.9. Nor did
the EC's published determination pr ovide any explanation, as required by Article 12.2.2, regarding
"the acceptance or rejection of relevant arguments or claims made by the exporters" on this issue.
(e) The EC's improper adjustments relating to SG&A costs for [[XXX]]
4.234 First, the EC violated Article 2.2.2 of the Anti-Dumping Agreement because it failed to
determine [[XXX]] SG&A costs based on amounts act ually incurred by the company during the IP
and reported to the EC. Second, the EC did not establish an adequate reason for its rejection of
[[XXX]] actual SG&A costs and therefore failed to properly establish that it was entitled to have
recourse to the alternative calculation method under Article 2.2.2. Third, the EC further violated
Article 2.2.2 because it failed to adopt a "reas onable method" when recalculating [[XXX]] SG&A
costs. As Norway has demonstrated, the SG &A calculation methodology relied upon by the EC
resulted in a substantial double counting of [[XXX ]] costs. As a result, under its unreasonable
methodology, the EC increased the company's costs by nearly 20 per cent.
(f) The EC's improper adjustments relating to costs of purchased salmon for [[XXX]]
4.235 The EC overstated the costs of the purchased salmon to [[XXX]] by [[XXX]] NOK. Without
the overstatement of these costs, [[XXX]] margin of [[XXX]] per cent disappears below zero. The
EC's defense is that the [[XXX]] NOK is an " entirely new figure , not mentioned in any reply or
submission before, not substantiate d during the investigation and impossible to have been verified
(sic)."
120 However, there is no doubt that the EC was thoroughly familiar with the figure and had
ample opportunity to verify it. The Panel should therefore find that the EC violated Articles 2.2 and
2.2.1.1 of the Anti-Dumping Agreement.
13. Conclusion
4.236 Norway maintains all its claims and respectfully reiterates the requests that are set forth in
Section XII of its First Written Submission.
F. S
ECOND WRITTEN SUBMISSION OF THE EUROPEAN COMMUNITIES
4.237 The following summarizes the European Communities' arguments in its second written
submission.

118 EC's FWS, para. 697.
119 EC's FWS, para. 705.
120 EC's FWS, para. 715.

1. Terms of Reference
4.238 The EC requests the Panel to dismiss that part of Norway's claim that accuses the EC of
wrongly excluding mere exporters from the calculation of the dumping margin on the ground that it is
outside the Panel's terms of reference. The matter was not raised in Norway's panel request. Norway
did not respect the requirements of Article 6.2 of the DSU in that it failed to "identify the specific
measures at issue and provide a brief summary of th e legal basis of the complaint sufficient to present
the problem clearly". Norway's failure on this poi nt has caused significant prejudice to the EC in
terms of the time and effort that has been devoted to countering Norway's claim.
2. Product Concerned
4.239 As preliminary points, the EC notes that Norway should refer to "the product under
investigation" not the "the product u nder consideration". Also, Norway's claim is that fish and fillets
cannot be included within the scope of a single original proceeding.
4.240 The EC's position is simply that Articles 2.1 and 2.6 (as opposed to the entire AD Agreement)
do not contain relevant obligations. The EC states only that an investigating authority has very
considerable latitude when it comes to selecting the product concerned. Norway's reading of
Article 2.6 does not respect the text, context or object and purpose. In any event, the point has already
been confirmed by the case law.
4.241 Bicycles and cars are irrelevant to this case and a false analogy. The EC agrees that an anti-
dumping proceeding does result in a single dumping determination for each exporter/producer, as in
this case; and that the results of multiple interm ediate comparisons are not themselves margins of
dumping. The use of models may permit an investig ating authority to avoid complicated adjustments
for differences affecting price comparability. What is contained in recitals 10 and 11 of the
Provisional Regulation to which neither Norway nor the Norwegian companies objected during the
anti-dumping proceedings is perfectly adequate and does not disclose anything inconsistent with
Articles 2.1 and/or 2.6. The Appellate Body h as recently expressly confirmed that it is for an
investigating authority to select or define the product concerned.
4.242 The investigating authority reasonably took the view that the transfor mation from head-off
gutted fish to large skin on fillets was not so great as to render separate anti-dumping proceedings
essential; preferring instead to draw the line at further processed types, such as smoked salmon. Some
undertakings, particularly in the EC, engage in both salmon farming and filleting, and as such may
have a filleting facility, albeit not a "dedicated" one ; may not always have their fish filleted far from
where they are harvested; and may use the same labour force for different activities. It is self-evident
that it costs something to cut a fish up. Norw ay is simply wrong to assert that an anti-dumping
proceeding can only ever have as the product concerned one tariff classification.
4.243 The EC disagrees with Norway that it is possible to extrapolate from nebulous assertions
about alleged object and purpose precise obligations re garding the selection of the product concerned.
The EC makes a sharp distinction between the select ion of the product concerned; and the proposition
that, having selected the product concerned, the i nvestigating authority must apply a rigorously
consistent approach to that aspect of the investiga tion throughout the proceeding. This is not a matter
that the Members expect to be decided through disput e settlement. Panels "cannot add to or diminish
the rights and obligations provided in the covered agr eements." This view is confirmed by a review of
the preparatory work.

3. Domestic Industry
4.244 The EC disagrees with Norway's submissions regarding the nature of any obligation in
Article 4.1 of the AD Agreement. The panel report in Argentina – Poultry did not benefit from
Appellate Review. The defin itional point was not argued in EC-CVDs on DRAMs , which
consequently contains no relevant findings on the issue, and in any event that panel report also did not
benefit from Appellate Review. With respect to the US-Hot-Rolled Steel case, contrary to what
Norway asserts, the Appellate Body has recently stat ed clearly that Article 2.1 of the AD Agreement
does not contain independent obligations, and the same must be true of Article 4.1. Finally, the US-
Lamb case, apart from relating to a different agreemen t, does not contain a finding of inconsistency
with Article 4.1(c) of the Agreement on Safeguards , but rather a finding of inconsistency with
Articles 2.1 and 4.1(c) of the Agreement on Safeguards.
4.245 Norway and the EC agree that double counting is a "problem", to which the investigating
authority had to find a "solution". Norway and the EC also agree that there is an indissociable link
between the selection of the product concerned a nd the question of "double counting" or more
precisely which undertakings to include as producers. Thus, Norway and the EC agree that this
question flows from the selection of the product concerned. And Norway and the EC agree that,
because Norway rejects the "no double counting" appro ach adopted by the investigating authority, the
only alternative, as far as Norway is concerned, is to "re-visit" the selection of the product concerned.
This means that once the Panel has found in favour of the EC with respect to Norway's claims
regarding the selection of the product concerned, as the EC respectfully believes the Panel must, then
the Parties agree that this necessarily means that Norway's claim regarding the domestic industry must
also fail, at least as regards the EC filleting only undertakings.
4.246 The Definitive Regulation states clearly that th e detailed analysis of the data received from
the salmon industry indicated that some companies did not produce salmon any longer. The EC does
not agree that the elimination of such compani es can reasonably be described as "self-serving" or
"biased". On the contrary, the EC would rather te nd towards the view that a problem might arise if
companies that no longer produce the product concerned were nevertheless included in the
investigation. With respect to this issue, th e EC simply cannot understand on what basis Norway
makes the bare assertion that there is something "sel f-serving" or "biased" in the measure at issue.
And precisely the same is true if a company did not produce the product concerned during the
investigation period; or fell into receivership; or failed to provide the necessary data.
4.247 Norway's submissions regarding organic salmon are simply irrelevant, because producers of
organic salmon were not excluded from the domestic industry.
4. Dumping Determination
(a) Article 6.10 of the AD Agreement
4.248 Norway's further arguments against the EC's concentration on producers rather than mere
exporters of salmon have added nothing. The occasions on which the AD Agreement refers to
exporters and not to producers are easily explicab le. For example, in some instances, such as
Article 10.6, only an exporter is referred to b ecause in the circumstances reference to a producer
would serve no function. Likewise, as regards Ar ticles 4.2 and 8, only the person involved in
exporting a product can give undertakings about the pri ce of that export. The role of production costs
as a basis for normal value cannot be dismissed as 'only an exception'. The notion of sales 'in the
ordinary course of trade' is of central importance.
4.249 Finally, there is nothing in Article 6.10 that fa vours an investigation based on exporters rather
than exporters. Contrary to Norway's assertion, the EC's reasons for excluding two producers, Salmar

and Bremnes, from the list of companies examined is perfectly justifiable. Here as elsewhere Norway
resorts to misquotation. The former was not include d because of lack of relevant information, and the
latter because of the Norwegian industry's representations.
(b) Article 2.2.1
4.250 Norway's comments in the Oral Statement do not add anything substantive to its previous
arguments.
(c) Disregarding sales
(i) Article 2.2.2, opening paragraph
4.251 Examination of the internal logic of Articles 2. 2, 2.2.1 and 2.2.2 shows that the meaning of
the phrase 'ordinary course of trade' in the first para graph of Article 2.2.2 must be independent of its
meaning earlier in the Article. Any other view lead s to a circular definition of the concept. If, as
claimed by Norway, data from sales disregarded for reasons of low volume is included in constructing
normal values the result would be to calculate dum ping margins on the basis of comparisons of sales
which the Agreement itself defines as non-comparable.
(ii) The less-than-10 per cent profitable sales rule
4.252 Norway's comments do not appear to raise an y issue regarding the less-than-10 per cent
profitable sales rule that the EC has not already r esponded to in its answers or in its First Written
Submission.
(d) Facts available
4.253 Norway's approach to the issue of 'facts available' is not consistent.
(i) Filleting costs
4.254 The EC authorities did not knowingly choose a prejudicial solution for calculating filleting
costs. As regards the need for on the spot verifications, Norway does not understand their importance
in getting at the truth. Although Norway has attemp ted to reconfigure the facts, the situation was in
fact one of the unavailability of evidence and not one of non-acceptance on the part of the EC
authorities. Norway's criticisms of the EC for not communicating in writing with the company do not
conceal the truth which is that the EC authorities e xplained the situation regarding filleting costs fully
during the verification.
(ii) Financing costs
4.255 As regards financing costs, faced with c onflicting information from the company the EC
authorities chose to rely on the annual accounts, whic h being audited were more persuasive. The loan
rates were found to be well below prevailing commerc ial rates so the EC authorities referred to the
Norwegian Central Bank rate as a benchmark.

(e) Treatment of non-sampled companies
(i) Article 9.4
4.256 Once again Norway has misrepresented the EC's argument. The EC has already demonstrated
that in substance the fixed duty is not, as far as th e WTO legal regime is concerned, an anti-dumping
duty. Norway provides no WTO basis for its arguments about supposed chilling effect.
(ii) Non-cooperating, non-examined companies
4.257 This issue is addressed in the EC's answers to the Panel's Questions 88 and 89. Norway
wrongly invokes paragraph 6 of Annex II in a case wh ere information was not supplied (rather than
refused). It also invokes a non-existent duty to state how the alleged non-cooperation impeded the
investigation. Finally, by the time that the non-responding companies complained of their treatment it
was far too late to consider including them in the investigation.
5. Domestic Industry and Article 3 of the AD Agreement
(a) EC definition of domestic industry did not and co uld not violate the provisions of Article 3 of
the AD Agreement
4.258 Norway's argument that as a consequence of defining the domestic industry in the present
case, the EC violated the provisions of Article 3 of the AD Agreement is non sequitur . The main
thrust of the provisions of Article 3 of the AD Agreement, and in particular Articles 3.1, 3.4 and 3.5
thereof (which Norway claims have been violated), is to ensure the consistency of injury analysis.
Once the domestic industry has been defined, the i nvestigating authority is obliged to conduct an
injury analysis with respect to the domestic industr y so defined. Norway's proposal to modify the
detailed and clear terms of Article 4.1 of the AD Agreement, which contains a definition, by importing
the concept of objective examination into the an alysis under Article 4.1, goes against the express
intention of the drafters as well as the WTO case law.
(b) The EC sampling of the domestic industry is in accordance with the AD Agreement
4.259 The EC notes that Norway has never argued that the composition of the sample by the EC
investigating authority in the present case actually violated Article 3.1 of the AD Agreement. Rather,
Norway argued that that the use of sampling in an in jury analysis is impermissible as such or, at most,
that a sampling exercise has to comply with the terms of footnote 13 to Article 5.4 of the
AD Agreement and never provided any evidence speci fic to the present case. The EC understands
that the Panel would not make a case for Norway . If the Panel finds that sampling of domestic
industry is allowed and that footnote 13 is not determinative of the method by which sampling must in
such cases be conducted, in the EC view, the Pane l has to stop there and abstain from any factual
findings with regard to the present case.
4.260 As regards the issue of the compatibility of sampling of the domestic industry with the
AD Agreement in general, by arguing that the AD Agreement authorizes sampling only in expressly
described circumstances, Norway effectively ignores the text of the agreement and reads into it a new
rule: whatever is not expressly allowed, is prohibited by the AD Agreement. Yet, the AD Agreement
contains an effective rule for the injury analysis: Article 3 and, in particular, Article 3.1. This
provision requires an objective examination, but does not prescribe the methods by which it should be
conducted. To read into this provision a prohibition of sampling would be, in the EC view, a direct
misreading of the text. This approach would imply that the use of sampling techniques is inherently
unable to produce objective results. It also woul d be absurd to accept that the AD Agreement
purposely creates a looser standard for the determin ation of support of a complaint under Article 5.4

of the AD Agreement (where sampling is allowed) than for the determination of injury under
Article 3. Footnote 13 shows that sampling of th e domestic industry is, conceptually, accepted by the
AD Agreement. Norway also ignores the accepta nce of sampling by the panel in EC – Bed Linen .
Finally, Sampling naturally is not about segmentation addressed in the in US – Hot-Rolled Steel case.
4.261 As regards the methods by which sampling shou ld be conducted, the EC considers that the
appropriate legal standard is that of Article 3.1 of the AD Agreement: "objective examination" on the
basis of "positive evidence". Article 6.10 of the AD Agreement may serve as a very good guidance
for the determination of whether sampling of dom estic industry was conducted in compliance with
Article 3.1. However, there also may be other methods which satisfy the requirements of Article 3.1.
6. Injury
(a) EC correctly determined the volume of dumped imports
4.262 Norway "recycles" its claim under Article 6.10 of the AD Agreement and brings it again,
relying on the same "evidence" and arguments, under Article 3 (3.1) of the AD Agreement. In the EC
view, if a sampling exercise complies with the terms of Article 6.10, it has to be considered as being
objective and complying with Article 3.1. Otherwi se it would have to be implied that the sampling
methods described in Article 6.10 are not sufficient a nd are not objective. It would thus mean that a
sampling exercise under Article 6.10 is not enough fo r the purposes of Article 3.1 and, that an
investigating authority has to conduct a separate analysis of dumping for the non-sampled parties
under that provision. Further, there was other add itional evidence before the investigating authority
on dumped imports besides that generated by sampling: this regards the imports from non-cooperating
companies, which also included imports via traders.
(b) The EC properly examined price-undercutting
4.263 Norway fundamentally misunderstands the func tioning of a price premium. In a dumped
market, the issue is not a question of whether a c onsumer is willing to pay a premium. Rather, the
question is whether a producer can ask for or is likely to obtain a premium he would normally get
under normal market conditions. A producer facing a surge of low-priced products will do anything
to survive, and first of all depress prices to keep its share of the market. The facts demonstrate that at
the moment the domestic industry increased its average unit sales prices (even by mere 4.9 per cent),
it started to lose sales volume (by 7.3 per cent) and thus lose market share.
(c) The EC Properly Evaluated Price Trends
4.264 For the purposes of the analysis of the financial performance of the EC industry, it does not
matter whether one conducts the analysis in Euro or in GBP. If the analysis is conducted in Euro, one
will be able to establish a decline (-9 per cent) in sales prices and a minor increase in the costs of
production (4 per cent) from 2001 to IP. In contrast , if the same analysis is made in GBP, one
establishes relatively stable prices but an increase in the cost of production (14 per cent) over the same
period. The ultimate result of the analysis, namely the profit and loss ratio, is the same.
7. Causation
(a) Effect of "smaller less efficient producers in the EC and higher cost of production"
4.265
It is normal that an industry which has suffered cost increases would try to recuperate them by
raising sales prices. The EC domestic industry was prevented from a such increase in sales prices
because of the dumped imports from Norway (which undercut the prices of the EC domestic
industry). At the same time, as explained in the Provisional Regulation (recital 108), Norwegian

industry did not have any overall cost advantage in comparison with the EC domestic industry and
suffered itself losses at the prices at which it was selling. It was the dumped imports that have caused
the injury.
(b) Imports of wild salmon from Canada and the United States
4.266 There was considerable information concerning the imports of wild salmon from the US and
Canada and the non-interchangeability of wild salm on with farmed salmon before the investigating
authority (and referred to in the Definitive Regulation) and some of it, in fact, originated directly with
the government of Norway. Norway makes its cl aim not to convince the Panel that the EC was
deciding on the basis of incorrect facts. Instead, Norway argues that establishment of facts that are
not footnoted automatically violate Article 3.5 of the AD Agreement. That is an unacceptable legal
standard.
8. MIPs
(a) MIPs and normal values
4.267 Norway again misstates the EC's arguments. As regards the results of calculation of the
maximum level of MIPs the EC strongly criticises Norway's methodology, but it has no view as to
whether, using this methodology, Norway's calcula tion is correct. The EC's adjustment of normal
values to a CIF basis when calculating 'dumping' MIPs is a consequence of its use of this basis for all
customs duties. If it did not make this adjustment the exporter would be able to claim that it had
raised prices when in reality the increase was merely due to transport and insurance costs.
(b) Limits on MIPs
4.268 Norway's argument for the use of a cap on MI Ps is based on a misunderstanding of the WTO
rules that limit anti-dumping duties to the level of the 'margin of dumping'. As recently emphasized
by the Appellate Body, these rules, notably Article 9.3 of the AD Agreement, apply to the final stage
of the assessment of duty. In the case of MIPs this is when an importer claims a refund in respect of a
particular exporter's sales on which duties have been charged. Norway misguidedly proposes that the
rule applies at the point when the goods are imported.
9. Fixed Duties
4.269 The EC has addressed Norway's latest arguments on the issue of fixed duties in its answers to
the Panel's Questions numbers 41 to 44 and sees nothing useful that it can add to those answers.
10. Cost Adjustments
4.270 In looking at the EC authorities' assessment s of the Norwegian exporters' costs the Panel
should keep in mind the well-established principle that the WTO agreements should not be interpreted
in ways that would enable Members to evade or circumvent WTO disciplines. Consequently,
exporting companies should not be allowed manipulate their accounts in order escape the application
of WTO rules on dumping.
(a) 'Improper inclusion of all NRC in the costs of production'
4.271 The approach used by the EC authorities is based on the 'matching' principle. This refers to
aligning revenues and costs to the items sold. If this principle is not adopted the reported profitability
would be distorted. It is the principle that best en shrines the rules in Article 2.2.1.1. The use of the

matching principle in accounting by no means restricts the costs to those that are directly related to the
production process.
4.272 The EC does not say that any reduction in the equity or wealth of company is a cost that
benefits production in the investig ation period or in the future. However, costs provoked by disease
or mortality of the salmon biomass, for example, must be incorporated into the costs of farming
salmon and influence the bottom line.
4.273 Norway's approach would even exclude costs th at appear in the exporting companies' annual
accounts. Costs such as those due to restructuri ng or deformed fish cannot be dismissed as 'non-
recurring costs'. They are a constant feature of th e Norwegian industry. On the other hand, the EC
authorities did not treat all costs in this way. Only those non-recurring costs that were attributable to
salmon sales were included, and an average of three years of such costs was made to ensure fairness.
(b) 'The EC's defence is premised on factual inaccuracies'
4.274 Although project accounting is the best system for salmon production the EC authorities
accepted whatever methodology was used by the comp anies under investigation, provided the results
were in line with the (audited) annual accounts. The types of accounting used by the companies are
much more varied than Norway pretends. Averag ing over three years was used by the EC in only a
limited number of cases and only where the cla ssic accounting methodology applied by the company
gave a false picture of its expenses. Norway's argument that the appropriate period for salmon
production is less than three years is refuted by contemporary evidence, including their producers'
own statements.
11. Procedural Requirements
(a) Access to information under Article 6.4 of the AD Agreement
4.275 Norway's statements in the first substantive m eeting have again referred to the concept of a
record. It could, however, not point to any provision in the AD Agreement obligating members of the
WTO to operate a record, let alone any jurisprudenc e. The EC also notes that Norway kept silent
about its own proposals in the Doha-round to introduce its concept into a revision of the text.
4.276 Norway made certain assertions about the visit of one of its legal advisors to Brussels to
inspect the investigation files. Norway complained that the files were "very disorganized", "not in
chronological order" and that "68 missing documents " were not among the files seen. The EC is not
impressed by this subjective account, which appears to have been organised as a preparation for this
dispute.
4.277 First, Norway confirms that it was granted access to all the information that was used by the
Commission in its investigation . Second, questions of "organization" and "chronological order" are
not regulated by the Agreement. These are house-keeping issues where each WTO member may
decide on its own how to store rele vant information used in the investigation. Some members may
file information relating to certain subject-matters, others on the basis of the date of submission. The
EC notes in passing that the submission practice of Norwegian exporters was – at best – not
conducive to a certain filing order. Rather than submitting – as requested – files in hard copy to a
central point, Norwegian exporters simply sent e-mails to individual persons as they deemed fit.
4.278 Third, the issue of the so-called 68 "missing" documents is a misnomer. The EC disagrees
with Norway's contention that the EC had accepted an obligation to show the "68 missing documents"
to Norway. Norway assumes that these documents were relevant, non-confidential and used by the
investigating authority within the meaning of Article 6.4 of the AD Agreement simply because

Norway knows that they have been submitted. However, the frustration of a WTO member not to
find documents, that it knows to have been submitted, al so in the investigation file of an investigating
authority is not protected by the AD Agreement.
4.279 In the present case there were various grounds for not including the 68 documents into the
investigation files. A substantial number of doc uments were submitted by exporters. Although they
contained confidential information, the exporters did not provide a non-confidential version in
contravention of Article 6.5.1 of the AD Agreement. In that situation the document was not included
in the files, but reference to it could be regularly found in the non-confidential summaries in the files.
Other documents related to the question of Communit y interest. Document No. 34 of Norway's list
of 68 "missing documents" (letter from Dr. Jaffa) wa s not included in the file for the reasons given in
response to Question No. 45 of the Panel. Finally, 15 documents from the Norwegian list are Notes
Verbales of the Norwegian government. These are treated as government-to-government
correspondence, not to be included in the file.
(b) Disclosure of essential facts under Article 6.9 of the AD Agreement
4.280 Norway's interpretative remarks on the duty unde r Article 6.9 of the AD Agreement give a
wrong impression of the EC's position. Norway construes a difference between "factual findings" and
"underlying facts" that the EC has never made. Therefore, Norway's observations about the
expressions "facts under consideration" in Article 6.9 and the term "findings reached on issues of fact"
in Article 12.2 of the AD Agreement are interesting, but without merit. The EC agrees with Norway
that Article 12.2 applies in a situation when a fina l determination is already made, whereas Article 6.9
contains an obligation to inform about essentia l facts under consideration before the final
determination. The EC's point is a different one. Under Article 6.9 of the AD Agreement the
investigating authority shall inform the parties of the essential facts under consideration. When the
EC used the term "factual findings" in that contex t, it meant the "information" that the investigating
authority provided to the parties on the facts that are used by it.
4.281 The EC has therefore not contended that it w as only obliged to offer its "reasoning", but not
the underlying facts to the interested parties under Article 6.9 of the AD Agreement. What the EC has
said is that to "inform of the essential facts" does not mean to produce a list with citations of each and
every single piece of evidence for a fact.
4.282 That is supported by the due process ends of Article 6.9 of the AD Agreement. The interested
parties shall know the facts on which the investigati ng authority will base its final determination. In
case these facts are considered to be inaccurate, the interested parties can challenge the factual basis
of the legal findings, serving their due process right s. Due process rights do, however, not require
knowing exactly which piece or pieces of evidence ha ve led the investigating authority to accept a
certain fact. What counts is to be informed a bout the acceptance of a fact by the investigating
authority, not the source or reasons why the investigating authority did so.
4.283 Contrary to Norway's assertion, the finding of the Argentina – Ceramic Tiles panel does not
suggest otherwise. In that case, exporters ha d been given access to the complete file, but the
investigating authority had not furnished any further explanation to them. The EC met this standard
by providing Norway with a comprehensive disclosure document. The Argentina - Ceramic Tiles
panel then turned to the question whether – in the absence of a specifically prepared disclosure
document - the documents contained in the file had su fficient informative value for the exporters to
know which were the essential facts "under considerati on" of the investigating authority. In light of
the facts before it the Panel found that the reporters could not be aware that the evidence submitted by
the petitioners and derived from secondary so urces would form the primary basis for the
determination of dumping.

4.284 However, this citation does not support Norway's legal interpretation that the obligation under
Article 6.9 of the AD Agreement is violated if a specifically prepared document does not contain
references to all the evidence. Rather, as the Argentina – Ceramic Tiles panel held, such a
specifically prepared document has simply to summarize the essential facts.
4.285 Turning to the four specific examples, the EC continues opposing Norway's allegation that it
was not informed about the essential facts relating to domestic industry and causation – Norway's
First Opening Oral Statement is entirely redundant so that the EC refers to its First Written
Submission in this regard. With regard to the dumping determination, Norway asserts that the EC had
"changed essential facts" after the disclosure and insists that the three concerned producers should
have been informed about this in writing. Th e EC does not understand what Norway means when
referring to the "change of essential facts". In th e EC's view the "re-assessment" does not change the
underlying facts. Rather it is part of the investig ating authority's task to asses all the relevant facts
before it to make a final determination in good time.
4.286 In addition, the investigating authority's duty to inform all interested parties about the
essential facts under consideration triggers important pr actical consequences. Interested parties have
a right to defend their interests throughout the whole process under Article 6.2 of the AD Agreement.
If the investigating authority were obliged to disclo se all "re-assessments" it could never be able to
finalize the investigation within the time available. One cannot have one's cake and eat it. Even if
there was a repeated duty under Article 6.9 of the AD Agreement to inform the three importers about
the re-assessment of their dumping margin ( quod non est ), there is no legal basis for Norway's
contention that information about this must be given in writing. As is apparent from the above quoted
finding of the Argentina – Ceramic Tiles panel, the disclosure obligation may be fulfilled in many
ways. There is no reason why oral information should fall short of this standard. Any uncertainty can
be removed by writing down an executive summary immediately after the oral information. The EC
fails to see why the possible negligence of an exporter to do so would defeat its due process rights.
4.287 Finally, a similar reasoning is valid with respect to the remedy determination
. "Re-
calculation" of the MIPs is not a change of essential facts that could trigger another information round
after the definitive disclosure. Any other interp retation of Article 6.9 of the AD Agreement would
seriously hamper the investigating authority's duty to finalise an investigation speedily within strictly
prescribed time-limits.
(c) Obligation to provide a reasoned and adequa te explanation under Article 12.2 of the
AD Agreement
4.288 In its First Written Submission, the EC explaine d at length that the duty to provide a reasoned
and adequate explanation relates to the information and reasons that the investigating authority found
decisive. Norway finds this approach "absurd", claiming that no WTO member can decide for itself
whether it meets a WTO standard, that being the task of panels and the Appellate Body.
4.289 The EC respectfully disagrees with Norway's proposition which seems to be based on a
fundamental misunderstanding of interna tional law. Under Article 26 of the Vienna Convention on
the Law of Treaties it is the duty of each party to an interna tional treaty to implement in good faith its
treaty obligations. In order to do so each party must necessarily decide for itself how it interprets and
applies the relevant treaty in the first place. In most of the cases its unilateral interpretation and
application of the commitments are to the satisfacti on of the other parties to the treaty. If, however,
another party doubts that the treaty is properly app lied, it can bring a dispute about the interpretation
and application before the relevant dispute settlement body. With re gard to the AD Agreement this is
of course this Panel. However, the existence of this supervisory machinery does in no way prohibit
the party to adopt its own interpretation and to enga ge in its way of implementation of the agreement
in the first place.

4.290 Nothing else can be drawn from Article 12.2 of the AD Agreement. The text does not indicate
that a party should give a public notice about all matter s of fact and law and reasons that a third party,
let alone a dispute settlement bod y considers to be relevant. That would be far-fetched. Rather, the
whole purpose of this provision is that the inte rested parties get sufficient knowledge about the
investigating authority's decision, taking due account of the need to protect confidential information.
4.291 As the EC stays firm on the applicable standard, there is no merit in discussing again
Norway's examples about allegedly lacking explanati ons. As these allegations rest on an erroneous
interpretation of Article 12.2 of the AD Agreement th ey are without any merit. The EC is therefore
confident that the detailed and careful reasoning set out in the Definitive Regulation fully satisfies the
requirements as set out in that provision.
G. S
ECOND ORAL STATEMENT OF NORWAY
4.292 The following summarizes Norway's arguments in its second oral statement.
1. Introduction
4.293 In this statement, Norway responds to issues ra ised by the EC in its answers to the Panel's
questions ("Answers") and in its Second Written Su bmission ("SWS"). The EC's latest submissions
provide the Panel with a mixed bag: on some issues , it makes admissions that substantiate Norway's
claims; on others, it offers a new defense that di ffers from both the publishe d determination and its
First Written Submission; and, on yet others, the EC still presents an inaccurate picture of the
investigation.
2. The Panel Cannot Conduct a de novo Review
4.294 Because this dispute concerns an anti-dumping measure, the Panel's task is to review the
investigating authority's factual and legal determinations as set forth in the published determination.
However, on almost every issue, the EC provides new explanations that the authority never gave in an
attempt to justify its authority's determinations. Panels and the A ppellate Body have consistently
refused to allow such ex post rationalization. The Panel cannot make new determinations, on the
basis of new facts and reasons that replace those originally made by the authority.
4.295 Further, the EC argues that publicly available information is automatically part of the
authority's record. However, the EC cannot show that the contested public information was gathered
during the investigation; nor that it was shown to in terested parties under Article 6.4; nor that it was
disclosed under Article 6.9; nor that it was mentioned in the published determination. In short, the EC
cannot show any procedural connection between the public information it now presents and the
investigation. As a result, Article 17.5(ii) requir es the Panel to disregard this information. This
applies likewise to other exhibits that Norway argues are inadmissible.
3. The Product Under Consideration
4.296 Norway believes that Articles 2.1 and 2.6, and Article VI:1 of the GATT 1994, impose
obligations on the authority's determination of the product. Although the EC accepts that these
provisions require that likeness be ensured at the leve l of models, Norway has explained that this is
not sufficient. As the EC accepts, Article 2.1 and Article VI:1 require that the authority make a single
determination of price discrimination for the investigated product as a whole . In making that
determination, the authority necessarily compares the prices of all models in a single, overall
comparison. As a result, likeness must be established for the product as a whole.

4.297 Contrary to the EC's views, the Appellate B ody has already found that Article 2.1 imposes
independent obligations. 121 In any event, Norway does not read Article 2.1 "in isolation" because it
always combines Article 2.1 with claims under other provisions . Norway's claims are that the
improper product determination vitiates: (1) the EC's initiation of the investigation under Articles 5.1,
5.2, 5.3 and 5.4; (2) the EC's dumping determina tion under Articles 2.1 and 2.6; and (3) the EC's
injury determination under Articles 3.1, 3.2, 3.4, 3.5 and 3.6.
4.298 The EC now appears to accept that: there ar e physical differences between the products it
bundled together; they are produced from different productions processes; are not fully substitutable;
have different end uses; and have different tariff cl assifications. The lack of a reasoned and adequate
explanation for its product determination makes it WTO inconsistent.
4. Domestic Industry
4.299 The domestic industry examined for purposes of both initiation under Artic le 5.4, and injury
under Articles 3.1, 3.4 and 3.5, must be defined in accordance with Article 4.1. By failing to examine
the correctly defined industry, the EC violated the obligations in these provisions.
4.300 The EC defined the domestic industry as 15 complaining producers to the exclusion of several
other categories of producer. The EC tries to excuse its exclusion of fillet producers by referring to an
alleged problem of double-counting. However, no problem of double-counting arises if the product is
properly defined pursuant to Articles 2.1 and 2. 6, without combining upstream and downstream
products. Moreover, even where double-counting ari ses under the EC's flawed product definition, the
scale of the problem is much overstated by the EC and there are various ways to deal with it. Further,
the EC has not explained, with evidence, how it separated out data for organic and conventional
production for all injury factors, including costs, pr ices and profits. The data presented by the EC is
contradictory122. Also the EC treated at least one producer as conventional, even though it presented
itself as a non-conventional producer.
4.301 The EC violated Articles 3.1, 3.4 and 3.5 of the Anti-Dumping Agreement by examining
certain injury factors for a sample of five complain ing producers. Norway argues that sampling in an
injury determination is not permitted but, even if it were, the EC's sample was not properly
constituted. These are not separate claims, as the EC suggests, but two arguments supporting a single
claim under the provisions of Article 3.
4.302 If sampling were permitted under Article 3, the rules governing sampling must be derived by
analogy from footnote 13 because it is the only provision dealing with sampling of the domestic
industry. The EC resorted to sampling without respecting the criteria in footnote 13, and is still
unable to explain why and how it sampled the domes tic industry. Moreover, a sample comprising a
sub-set of the complainants does not permit an obj ective examination. Also, three of the sampled
producers are non-conventional producers with a different cost structure. All of this makes clear that
the EC did not perform an objective examination of the domestic industry.
5. Dumping
(a) The EC Acted Inconsistently with Article 6.10 in Composing the Sample
4.303 Contrary to the EC's argument, the Anti-Dumping Agreement expresses no preference for
determining dumping for producers, to the exclusion of exporters. Indeed, it would be perverse to
exclude exporters under Article 6.10 because "dumpi ng", by definition, "relates to the pricing

121 Appellate Body Report, US – Hot-Rolled Steel, paras. 131 to 158, and 240(d).
122 See Norway's Second Opening Statement, paras. 30-31.

behavior of the exporter".
123 For this reason panels and the A ppellate Body have ruled that, in
principle, Article 6.10 requires an authority to determine dumping for known producers and exporters.
In keeping with this requirement, the second sa mpling option focuses neutrally on the "volume of
exports from the country in question ". In fact, as recently as 2003, the EC conducted an investigation
in which it constructed normal value for Norway's non-producing exporters.124
4.304 Rather than defending the improper exclusi on of exporters, and of two large exporting
producers, which it cannot, the EC makes an utte rly baseless claim that Norway's claim under
Article 6.10 is outside the Panel's terms of reference. Paragraph 4 of Norway's panel request plainly
identifies Article 6.10 as within the Panel's terms of reference. The EC's view that Article 6.10
permits these exclusions raises an interpretive question that does not alte r the Panel's terms of
reference. The Panel must therefore address Norway's claims.
(b) The EC's Failure to Perform the Cost Recovery Test under Article 2.2.1
4.305 The EC's latest submissions contain important admissions regarding its approach to the cost
recovery test under Article 2.2.1. The EC expressly acknowledges that it did not conduct the cost
recovery test in the second sentence of Article 2.2. 1. Consequently, the EC cannot be found to have
made a determination under that sentence, explicitly or implicitly.
4.306 The EC seeks to equate the duration of the "reas onable period" and the IP. This is untenable
under the Vienna Convention. If the drafters had intended to equate the reasonable period with the IP,
they could easily have said so. Yet, they chose to distinguish between the two periods. The drafters'
use of different words to refer to different periods in Article 2.2.1 must be given meaning.
(c) The EC Improperly Excluded Domestic Sales under Articles 2.2 and 2.2.2
4.307 First, in constructing normal value, the EC im properly excluded data on profits, and selling,
general and administrative ("SG&A") costs relati ng to low volume domestic sales under its 5 per cent
representative sales test. Second, in deciding to construct normal value, a nd in constructing normal
value, the EC improperly rejected data relating to low volume, pr ofitable domestic sales under its
10 per cent test. The EC thereby violated Articles 2.2 and 2.2.2 of the Anti-Dumping Agreement.
(d) The EC Improperly Applied Facts Available to Grieg
4.308 The EC rejected information on filleting and fi nance costs provided in a timely fashion by the
company and, instead, used secondary source informa tion that was less favorable to the company.
However, in so doing, the EC failed to respect the rules in Article 6.8 and Annex II. The EC's defense
is premised on the view that it did not use "facts available". However, the EC has been unable to
explain how an authority can use secondary source information without resorting to "facts available".
(e) The EC Violated Articles 9.4 and 6.8 with Respect to Non-Sampled Companies
4.309 The EC admits that it incorrectly calculated a weighted average dumping rate for nonsampled
companies. The EC used that rate in determini ng the fixed anti-dumping duty. As a result, the EC
acted inconsistently with Article 9.4.
4.310 The EC accepts that it used facts availabl e with respect to allegedly non-cooperating,
nonsampled companies, to determine the residua l dumping margin for these companies. Norway
contests the right of a Member to apply adverse facts to non-sampled companies because the

123 Appellate Body Report, US – Zeroing (Japan), para. 165.
124 Exhibit NOR-5.

maximum "all others" rate is set forth in Article 9.4. In any event, in applying adverse facts to these
companies, the EC did not even comply with the requirements of Article 6.8 and Annex II.
6. Injury
(a) The EC Improperly Determined the Volume of Dumped Imports
4.311 In its injury determination, the EC assumed that all imports from Norway were dumped, even
though the EC examined a sample that comprise d solely producers, and even though the EC's
dumping determination covered a me re 25.5 per cent of Norwegian exports to the EC. The EC now
accepts that the evidence from the samp led companies "could" qualify as just " part of the 'positive
evidence'". The Parties thus agree that there is a need to present "other positive evidence". Norway
has shown that no such evidence can be found in th e published determination. The inclusion of the
volumes of Nordlaks also vitiates the analysis.
(b) The EC Improperly Examined Price Undercutting
4.312 The price premium enjoyed by EC producers was documented in the record, and described in
the Definitive Disclosure. The alleged price undercutting of 12 per cent equaled the price premium of
12 per cent disclosed in the Definitive Disclosure. This should have been taken into account by the
authority.
(c) The EC Incorrectly Analyzed Price Trends
4.313 The authority's determination relied on a decline in prices, which did not occur in the
"material" currency. The EC now accepts that no pr ice decline occurred in pounds sterling, and all of
its arguments in its Second Written Submission are in tended to show that the analysis would have led
to a finding of injury even if conducted in pounds sterling. The EC cannot now reinvent its authority's
reasoning by arguing that the price decline was irrelevant.
7. Causation
4.314 First, the EC was obliged to address the signifi cant increase in costs to the EC domestic
industry in the published determination, but did not.
4.315 Second, the EC has not been able to show th at it provided a re asoned and adequate
explanation for imports from Canada and the Unite d States. Also, it cannot demonstrate that the
record contained positive evidence supporting its fi ndings that: (1) imports from Canada and the
United States consist mostly of wild salmon; and (2) wild and farmed salmon do not compete.
4.316 The EC now contends that its authority relied on data submitted by Norway in a safeguard
investigation. However, if the authority wishes to use information from other investigations, it must
formally make it part of the record, and disclose it to in terested parties. In this investigation, the data
in question was not made available under Article 6.4; was not disclosed as essential facts under
Article 6.9; and was not mentioned in the published determination.
8. The EC'S MIPs Exceed the Individually Determined Normal Values
4.317 The EC has repeatedly refused to provide the calculations for its MIPs. The EC incorrectly
states that Norway's MIPs table is based on "interpretations of the Anti-Dumping Agreement that are
different from those of the EC." In fact, Norway stated in its First Written Submission that: "… the
normal values are those that the EC determined on the basis of the examined producer's costs, as

determined by the EC. They, therefore, include the substantial adjustments that the EC made to these
costs, which are contested …".
125
9. The EC's Fixed Duties Exceed the Margin of Dumping
4.318 By design, architecture, and declared purpose, the fixed duties are anti-dumping duties. The
EC's argument that they are not anti-dumping duties, but set to deter and sanction customs fraud, is
without merit.
4.319 Even by the standards described in the EC's Answers, the fixed duties are specific action
against dumping. For example, the fixed duties r esult in the imposition of higher anti-dumping duties
than the variable duties system; th is is so whenever the amount of the fixed duty is greater than the
difference between the actual import price and the MIP.
10. Procedural Requirements
4.320 The EC now acknowledges that it did not grant Norway access to the 68 documents listed in
Exhibit NOR-31. There were no "practical" impe diments that prevented the EC from providing
timely opportunities for Norway to see the documents in November and December 2005. Further, all
of the documents were "relevant" to Norwegian inte rested parties and "used" by the authority. The
EC arguments for not including the documents into the files are flawed. Article 6.4 applies to any
information that is "relevant" to interested parties, and that is "used" by an authority. The source of
the information, and the reasons why it is submitted, are not important under Article 6.4.
4.321 Norway has explained that the word " basis" in Article 6.9 shows that the authority must
disclose the essential facts in the record that provide the " foundation" for the authority's findings and
conclusions. If the authority merely discloses its own findings and factual conclusions, without
disclosing the facts in the file that support its findi ngs, interested parties are simply not aware of the
"basis" in fact for the authority's determination, a nd they cannot point out that the facts are unreliable
or have been incorrectly interpreted by the authority.
4.322 By way of example, on dumping, Norway fails to see how the same set of essential facts can
simultaneously support dumping dete rminations of 17.7 per cent a nd 24.5 per cent for Pan Fish
Norway ("PFN"). Either the authority's assessment of export price or normal value, or both, must
have changed significantly in order for the dumping ma rgin to decrease by 6.8 per cent. With respect
to the MIPs, the EC explicitly acknowledged that new "information", requested by the EC after the
Definitive Disclosure, formed the "basis" for a change in MIPs. The authority was obliged to disclose
the essential facts underlying these changes. Yet, it provided no disclosure. The EC alleges that there
were "oral disclosures". Norway contests the right of an authority to provide oral disclosure, and
provides evidence disputing such disclosures were made.
4.323 The EC argues that Articles 12.2 and 12.2.2 ar e satisfied when the authority provides the
information that the authority itself considers relevant, and until such time as its conduct is challenged
in a WTO proceeding. This is not a response to Norway's claims. Norway has challenged the EC's
published notice and explained why it is insufficient. The Panel must now decide whether the EC's
notice is reasoned and adequate.

125 Norway's First Written Submission, para. 638.

11. The EC's Improper Cost Adjustments
(a) The EC's Inclusion of Non-Recurring Costs and Operating Losses in the Cost of Production
4.324 The major difference between the Parties regard ing many of the contested cost adjustments
boils down to the meaning of the term "cost of production" in the Anti-Dumping Agreement. Norway
argues that the treaty requires a demonstrable relationship between costs and production. The relevant
costs are those incurred to pay for resources used in the production process to produce the like product
sold in the IP. In contrast, the EC continues to argue that all costs that affect a company's profitability
are costs of production. Contrary to the wording of the treaty, the EC makes no attempt to establish
the existence of the required relationship between costs and production.
(b) The EC Has No Justification for the Three- Year Averaging of Non-Recurring Costs (NRC)
and Finance Costs
4.325 The EC's justification for using a three-year averaging period for these costs has continuously
shifted and, for this reason alone, lacks credibility.
4.326 For NRC, in the Definitive Regulation, the EC claimed to use three years as a substitute for
allocating what it then called "extraordinary costs" over the lifetime of the fixed asset. 126 It wrongly
claimed that it had no information on the lifetime of the assets concerned, whereas the record included
evidence on depreciation periods. The EC stated th at three years was an "appropriate" alternative
period because it was the average time to grow "a smolt to a harvestable salmon".127
4.327 As for finance costs, the EC gave no separate e xplanation for the use of a three-year period to
calculate finance costs for five companies. This a pproach significantly inflated costs because interest
rates fell markedly during the period concerned. Ex hibit EC-37 also shows that the EC used different
three-year periods for different companies. For some, 2001 to 2003 was used and, for others, 2002 to
2004 was used. The EC asserts that this is because it used the audited accounts for the three most
recent years. For some companies, it contends th at the 2004 statements were available, while for
others they were not. However, this is incorrect as all 2004 statements were available.
4.328 In these proceedings, the EC no longer argues that it used a three-year period as a proxy for
the useful life of fixed assets, and it has not address ed the fact that the record included evidence on
depreciation periods. Also, it no longer contends that three years is the period from smolt to harvest,
and instead argues that three years is the period from egg to harvest. 128 This difference is important
because the period from eggs to smolt, which is an on-shore activity in hatcheries and fresh-water
cages, can last nine to 15 months.
4.329 More importantly, the EC has introduced a new justification for three-year averaging based
on project accounting ("PA"). Besides constituting ex post rationalization, the EC's reliance on a PA
approach is riddled with inconsistencies, and is factually wrong. Furthe r, this reason was never
mentioned either in the published determina tion or the disclosures. This argument is ex post
rationalization. For that reason alone, the Panel can reject this justification. The Panel need not
decide, therefore, whether a PA or IP approach is "correct" or "preferable", or even whether the EC
used a PA approach.

126 Definitive Regulation, para. 18.
127 Definitive Regulation, para. 18.
128 EC's FWS, paras. 617 and 692.

4.330 For one company, the EC simply counted tw ice the costs of slaughtering and packing
services; without such double-counting, the EC woul d have had to find that this company was not
dumping.
12. Conclusion
4.331 Norway, also submits 10 new exhibits, from E xhibit NOR-176 to Exhibit NOR-185, together
with this Opening Statement. Pursuant to para. 11 of the BCI procedures, Norway requests that the
Panel apply the BCI procedures to protect the in formation in Exhibits NOR-177, NOR-183 and NOR-
185.
H. S
ECOND ORAL STATEMENT OF THE EUROPEAN COMMUNITIES
4.332 The following summarizes the Eu ropean Communities' arguments in its second oral
statement.
1. Standard of Review
4.333 Norway's response to the EC's Opening Statement as regards the notion of standard of review
serves only to confuse what are actually quite distin ct issues. No one doubts that the investigating
authorities must provide an explanation for their c onclusions, and the EC is familiar with the rulings
of the Appellate Body on the nature of that explan ation. Nevertheless, the Appellate Body has said
that a panel must give 'due regard to the approach taken by the investigating authority, or it risks
constructing a case different from the one put forward by that authority.' We have no doubt that the
Panel will bear this warning in mind when considerin g how to apply the rules in Article 17.6(i) of the
Anti-Dumping Agreement.
2. Product
4.334 Norway persists in referring to the product that is examined in an anti-dumping investigation
as the 'product under consideration', which is incorrect.
3. Domestic Industry
4.335 As regards Norway's assertion that the sampling of domestic industry is not permitted by the
AD Agreement, the EC notes that Norway does not even a ddress the legal arguments set forth by the
EC and instead limits itself to what it said before.
4. Dumping Issues
(a) Selection of Norwegian producers
(i) Exclusion of exporters
4.336 In its First Written Submission, in answer to No rway's complaint that 'mere exporters' should
not have been excluded from the investigation, th e EC pointed out the problems that would arise if
dumping duties were imposed on both exporters and pr oducers. A batch of fish, originating with a
producer and passing through the hands of an exporter would arrive in the EC and apparently be liable
for two possible levels of duty depending on whethe r that for the producer or the exporter was
invoked.

(ii) Composition of list
4.337 The issue is not whether Article 6.10.1 places th e investigating authority under a duty to take
exporters views into account. Rather it is whether it is legally entitled to do so. In other words, in the
EC's view whether or not the authority is obliged to deal with exporters or producers, it cannot be
faulted for attempting to consult and reach agreement with them.
(b) Articles 2.2 and 2.2.1
4.338 Norway's claims regarding th e EC's obligations under the 'reasonable period' rule in
Article 2.2.1 are undermined by its failure to un derstand the structure of this provision. The
paragraph starts by identifying a particular categor y of domestic sales: those 'at prices below per unit
… costs of production plus administrative, selling and general costs'. It then apparently proceeds to
identify what appears to be a subcategory of such sales, those 'made within an extended period of time
in substantial quantities and are at prices which do not provide for the recovery of all costs within a
reasonable period of time.' However, as the EC has no ted in its answer to th e Panel Question 80, the
third of these points, that of recovery of costs within a time period, is intrinsic to the notion of sales
below cost, and is not an additional criterion. In other words, no determination of whether sales may
be made below cost is possible without having set a period over which costs those costs are
determined.
(c) Rejection of data relating to prices – Article 2.2.2
(i) Low volume sales
4.339 Norway keeps referring to the EC's arguments in the Fittings case. If these arguments are
examined it will be seen that the very situation wh ich the EC distinguished as not relevant in the
circumstances of that case is the one that has arisen in this dispute. Specifically, in this dispute the
result of taking into account data from non-representativ e sales is to construct normal values that are
the same as the normal values that would have resu lted from using the prices of the sales that have
been disregarded as being non-representative. That was not the situation in the Fittings case. In that
case the Appellate Body adverted to this problem in a footnote. Referring to Brazil's argument that an
interpretation that allowed the inclusion of data from low volume sales (that had previously been
disregarded) would render the provision 'ineffective' , the Appellate Body said 'the example posited by
Brazil is premised on certain factual assumptions. … We are not convinced that these factual
assumptions necessarily hold true for most anti-dumping investigations. We are of the view that the
possibility of the outcome suggested by Brazil, based on a certain set of circumstances, cannot
overcome the specific text of the chapeau of Article 2.2.2.'
(ii) 10 per cent rule
4.340 The EC has already given substantial explanati ons of its justification for operating a 10 per
cent rule in regard to profitable sales. Norway has responded by citing the phrase 'normal commercial
practice' used by the Appellate Body in US – Hot-Rolled Steel. However, Norway misinterprets the
ruling. It is true that Appellate Body said 'W here a sales transaction is concluded on terms and
conditions that are incompatible with "normal" co mmercial practice for sales of the like product, in
the market in question, at the relevant time, the tr ansaction is not an appropriate basis for calculating
"normal" value.' However, it is clear that the Appellate Body was not attempting a comprehensive
definition of the concept of sales that are not in the ordinary course of trade. Rather, it was presenting
one category of such sales. Most obviously missi ng are the type of sales which the AD Agreement
most clearly identifies as not in the ordinary course of trade, which are those made at a loss.

(d) Article 6.8 and Annex II as regards [BCI]
4.341 In its latest contributions Norway says little if anything that is new on the subject of the
investigation of [BCI]. Regarding what took pl ace during the verification visit, Norway, although it
has access to [BCI], still does not contradict the EC's account but merely describes it as
'unsubstantiated'.
(e) Non-investigated companies
4.342 As regards the status of companies found by the EC to be non-cooperating, the EC has
already analysed the notification obligations of the investigating authority. The list of obligations that
Norway claims have been infringed by the EC ser ves to emphasise the bizarre nature of Norway's
claim. Regarding companies that had made no effo rt to respond to its requests for information and
had not even acknowledged their existence to the inv estigators, the EC is accused of not supplying
information regarding information that they should have supplied; of failing to allow them make
further explanations; and of not telling th em how their non-cooperation was hindering the
investigation.
5. Injury
4.343 Nothing that Norway has said serves to answer the EC's argument that the methods defined in
Article 6.10 must be regarded as acceptable ways of limiting the scope of investigations and are
therefore valid for application in the circumstance s of Article 3. In addition, the EC authorities
combined the information from the sample of comp anies with data from other sources. Norway has
likewise nothing substantially new to say about unde rcutting, no doubt because of its failure to
understand the functioning of a price premium. Re garding price trends Norway has still not shown
why the analysis must be carried out in pounds as opposed to Euro.
6. Causation
4.344 The EC does not find in Norway's most recent cont ributions anything that adds to its previous
comments and arguments. Instead, Norway merely repeats its untenable position that a factual
finding which is explained but not footnoted to a source violates any determination under Articles 3.1
and 3.5 of the AD Agreement.
7. MIPs
4.345 Normal values are calculated at a factory gate level. In other words, the price is set at point at
which the goods leave the factory gate, removing any element corresponding to the cost of shipping
the product to the EC. Export prices are calculated at the same basis. However, the EC traditionally
charges duties on a CIF basis, that is on the price of the goods including costs of shipment to the EC.
The MIPs are adjusted upwards to take account of th is. An alternative approach would be to set the
MIPs at the actual normal value, and reduce th e invoice price of imported salmon by an amount
corresponding to transport and insurance costs. The result in terms of the duty imposed under the
MIP would be the same, but the process would consid erably add to the cost and bother of passing
goods through customs control. The EC can hardly imagine that this is something that Norway
wishes its salmon exports to face.
8. Fixed Duties
4.346 The EC has no further observations to make on the topic of fixed duties at this stage.

9. Procedural Requirements
(a) Record of the investigation
4.347 The various points made by Norway in its Rebuttal Submission and Answers to Panel
Questions as regards the record of the investiga tion have already been addressed by the EC in its
presentations to the Panel.
(b) Information on essential facts
4.348 The Panel will be well aware of the rule in Article 6.14 of the AD Agreement that anti-
dumping procedures 'are not intended to prevent the authorities of a Member from proceeding
expeditiously' and reaching final determinations. This principle necessarily acts as a limit to the kind
of right being claimed by Norway as regards 'essential facts'. In other words, the rights that Norway
invokes are not without limits. The investigatin g authority must balance the various interests
involved, and inevitably there will be occasions when it has to limit parties' interest in disclosures in
order not to prejudice expeditiousness.
10. Costs
(a) Introduction
4.349 The principle of equal treatment is important because the imposition of anti-dumping duties
reflects a conflict of interests not just between fore ign producers that are alleged to be dumping and a
domestic industry that claims it is being caused injury, but also between the individual foreign
producers who are the subject of the investigation and the eventual anti-dumping measures.
(b) Inclusion of non-recurring costs (NRC) and operating losses
(i) Costs of production pay for resources used in production
4.350 Limiting the cost of production to those costs that pertain to production is equivalent to
establishing the manufacturing cost of a product. Th is is in any case too narrow in the light of the
definition of Article 2.2.2 – 'costs incurred in resp ect of production and sale' – highlighting the costs
that are made to commercialise the produced goods.
(ii) [BCI]'s closure of smolt facilities
4.351 On the basis of the findings of the on-site verification, the depreciation costs of 67 million
NOK did not cover any write-down on the closure of smolt facilities. Moreover, on the basis of
GAAP such a write-down would not even be expected to figure under the regular depreciations.
(iii) Closure of selling operations in Denmark
4.352 The investigating authorities fail to see why the admission that the costs of closure of selling
operations in Denmark were included incorrectly would alter the conclusi ons and invalidate the
investigation, nor why this should be considered by the Panel as a violation of Articles 2.2.1.1, 2.1
and 2.2. Norway does not explain its position in this respect. The EC has made makes clear that the
adjustment does not represent 2.4 per cent of the cost of production but 2.4 per cent of Norway's total
claim on other non-recurring costs as presented in Table 12 in its First Written Submission. In reality
the incidence on the cost of production is a mere 0.27 per cent, and can be regarded as de minimis.

(iv) Write-down of salmon farming licences
4.353 The EC has already replied to Norway's clai m regarding the write-down of salmon farming
licences. Without the licences, [BCI] would not have been allowed to produce salmon at the
production facilities in question. Given the fact th at salmon is farmed over a three year period,
salmon harvested in the IP would have been grown during a period in which the licences were still in
use. Norway appears to say that the relevant pe riod is further narrowed down to that part of the
growth cycle of the salmon generation that is situated in the IP. That is clearly a distortion of the
reality of the salmon business.
(v) Operating losses
4.354 Norway has admitted that it mislabelled a write -down of financial par ticipations as operating
losses. The EC has already explained its treatment of write-downs.
(vi) Investment losses
4.355 The EC has confirmed that all salmon related investment losses were indeed treated as NRC
to be included in the cost of production of salm on. Such an approach was based on the business
segment approach.
(c) Averaging of NRC over a three year period for several companies
4.356 The EC has addressed this issue in its reply to the Panel's Question 31. From Exhibit EC-37
it can be seen that the accounting method most frequen tly used by the investig ating authorities in the
determination of cost of production was that of pr oject accounting, and this was in line with the
companies' own methodologies. It was based on an average three year salmon generation. Moreover,
the so-called NRC were an integral part of ru nning the salmon business and were therefore properly
counted as cost of production, in line with the a udited results communicated by the companies in their
financial reports to third parties, such as investigating authorities, shareholders and the general public.
(d) The EC's adjustments relating to finance costs
4.357 The three year approach is criticised again by Norway on the basis of the alleged limitation of
the use of project accounting to one company and th e use of different three year periods. Norway
does not reply to the argument that the finance costs of [BCI], [BCI] and [BCI] were not fully
included in the companies' reported cost of production and does not comment on the investigating
authorities' decision to use group accounts to remedy this situation. Nor does Norway clarify its
inconsistent claim regarding the limitation of finance costs to the IP, or explain how the costs reported
by [BCI] by virtue of its use of project accounting can be reconciled with its position.
4.358 Consequently it seems that the Norway's repeat ed efforts to cast doubt on the use of project
accounting and the three year approach are merely m eans by which to avoid the fundamental issue of
costs in this dispute, i.e. the failure of the Norwegian companies to fully report their costs of
production. Finally, it should be said that as regard s [BCI] the investigating authorities did not agree
that the revised accounts for 2002 contained the losses on the investment in Pan Marine.
(e) The EC's adjustments relating to smolt cost
4.359 As concerns the changes regarding smolt cost s between definitive disclosure and definitive
regulation, Norway should already possess all the in formation necessary to verify the correctness of
the investigating authorities' statement, because the relevant data were disclosed to the companies.

(f) The EC's adjustments relating to SG&A costs for [BCI]
4.360 The statements in the information note on cost of production, and in the provisional
disclosure, are superseded by the reasoning given in the final determination. Moreover, the SG&A
costs of [BCI] were technically not rejected becau se they were part of the consolidated accounts.
Since consolidation eliminates intra-company transac tions, the issue of transfer pricing could be
resolved. Finally, because such an exercise does not yield any conclusive results, the investigating
authorities never undertake to evaluate transfer pri ces between companies base d on those companies'
individual accounting records, but prefer to have recourse to consolidated accounts when these are
available, or to external market information.
(g) The EC's improper adjustments relating to costs of purchased salmon for [BCI]
4.361 The figure of 8.8 million NOK was not substan tiated during the on-site investigation, a
fundamental issue that Norway tries to obscure.
(h) CNV Adjustment Claims
4.362 In Question 62 the Panel raised with Norway the crucial issue of non-recurring costs and the
of notion benefit to current and future production. Norway's answer makes serious misstatements
about fundamental accounting principles.
V. ARGUMENTS OF THE THIRD PARTIES
5.1 The arguments of the third parties are set out in their written and oral submissions to the
Panel, and in their answers to questions. The third parties' arguments, as summarised by them
pursuant to paragraph 12 of the Panel's working procedures, are set forth in this section.
A. CANADA
1. Written Submission of Canada
5.2 Canada did not present a written submission to the Panel.
2. Oral Statement of Canada
(a) Introduction
5.3 Mr Chairman, Members of the Panel, we appreci ate this opportunity to provide our views to
the Panel. Canada's submission today addresses Norway's claim that under the Antidumping
Agreement, the EC may not impose anti-dumping du ties based on "minimum import prices" that are
higher than the dumping margin established in the origin al investigation. Canada disagrees with this
claim.
5.4 In our respectful submission, under the Antidumping Agreement, the assessment of anti-
dumping duties based on "minimum import prices" and using a prospective normal value is distinct
from the determination of dumping margins in the investigation phase. The Antidumping Agreement
does not require that the dumping margins in the investigation phase act as a cap on the duty that may
be imposed based on a minimum import price. Let me explain.

(b) Argument
5.5 What does Norway argue? Norway does not ch allenge the right of Members to impose anti-
dumping duties on the basis of minimum import prices in the context of a prospective duty assessment
system. Rather, it alleges that the Antidumping Agreement imposes a "cap" on anti-dumping duties
imposed on the basis of such fixed reference prices. According to Norway, this cap is the margin of
dumping determined in the original investigation.
129
5.6 Norway does not rely on any authority for th is proposition, and there is none. In fact, a
previous panel has already addressed this issue and rejected the argument advanced by Norway. 130 In
Argentina – Poultry Anti-Dumping Duties the panel found that Argentina had not violated Article 9 of
the AD Agreement by imposing variable anti-dumping duties on the basis of margins of dumping
established at the time of collection.
5.7 The Argentina – Poultry panel did not expressly address Norway's allegation of a cap.
However, we agree with the EC that the findings of the panel in that dispute are relevant to the facts
of this case. 131 The reasoning of that panel establishes that, consistent with Article 9 of the
Antidumping Agreement, a Member may impose anti-dumping duties on the basis of the difference
between the minimum import price and actual export prices established at the time of collection.
5.8 In this respect, let me highlight three points in the findings of the Argentina – Poultry panel
that Canada finds particularly relevant.
5.9 First, the panel saw nothing in the Antidumping Agreement that "explicitly identifies the
form that anti-dumping duties must take." Specifically, the panel held that the Antidumping
Agreement does not prohibit the use of variable anti-dumping duties. We agree with this point and
urge you to follow this finding.
5.10 Second, Article 9.3 does not refer to the establishment of the margin of dumping during the
investigation phase. Rather, as the Argentina – Poultry panel found, Article 9.3 simply refers to the
margin of dumping established "under Article 2." A ccording to that panel, this meant "simply that,
when ensuring that the amount of the duty does not exceed the margin of dumping, a Member should
have reference to the methodology set out in Article 2, " that is, the various elements of Article 2 such
as normal value, fair comparison, and so on.
132
5.11 In the context of these two points, the panel went on to state that Article 9.3 is primarily
concerned with "duty assessment." The panel also e xplained that "neither the ordinary meaning of
Article 9.3, nor its context supports [the] view that Article 9.3 prohibits variable anti-dumping duties."
To impose a prohibition on variable anti-dumping duti es, Article 9.3 would have had to require that
anti-dumping duties do not exceed the dumping margin established during the investigation phase of
Article 2.4.2.133 Article 9.3 does not do this.
5.12 Third, the panel noted that the immediate c ontext of Article 9.3 contradicted the
interpretation of that Article as prohibiting the collection of anti-dumping duties in excess of the
margin of dumping established during the initial inves tigation. The panel observed that Article 9.4(ii)

129 Norway's First Written Submission, Section VIII, para. 666.
130 Argentina – Definitive Anti-Dumping Duties on Poultry from Brazil, Report of the Panel,
WT/DS241/R, adopted May 19, 2003.
131 EC's First Written Submission, para. 493.
132 Report of the Panel, WT/DS241/R, adopted 19 May 2003., para. 7.357.
133 Ibid., paras. 7.354-355.

expressly envisaged a prospective normal value system and concluded on that basis that the use of
such a system should be consistent with Article 9.3 of the AD Agreement.134
5.13 In Canada's respectful submission, the panel's findings in Argentina – Poultry establish that a
Member has the right, under the Antidumping Agr eement, to assess antidumping duties on the basis
of minimum import prices. The panel's findings are based on the fact that there is a distinction
between the conditions that prevail during the inves tigation period and the conditions relevant to the
assessment of anti-dumping duties for each importation of subject goods during the life of the
measure. Normal values and export prices can, a nd often do, vary over the life of an anti-dumping
duty measure; accordingly, duties are assessed in appropriate amounts so long as they do not exceed
the margin of dumping determined for each importation of subject goods. That such amount could
exceed the margin of dumping established during the or iginal investigation is of no legal consequence
under the Antidumping Agreement.
(c) Conclusion
5.14 In conclusion, let me make the following observation about the consequences of accepting
Norway's arguments. If you accept Norway's "ca pping" argument, this w ould provide a strong
incentive for foreign producers and/or exporters to seek to evade antidumping measures by simply
pricing at even higher margins of dumping than those established during the investigation. This is
because those producers and/or exporters would be secure in the knowledge that an increase in the
dumping margin would not result in correspondingly higher rates of anti-dumping duties. Such an
outcome would not only be counterintuitive, it w ould be inconsistent with the scheme of the
Antidumping Agreement as a whole.
5.15 Aside from Article 9.3, there is no rule in the Antidumping Agreement requiring a cap of the
kind claimed by Norway.
5.16 Canada respectfully requests that the panel find that there is nothing that prohibits duty
enforcement systems based on variable anti-dumpi ng duties that may exceed the margin of dumping
found during the original investigation.
5.17 Mr. Chairman and members of the Panel, I thank you again for allowing Canada an
opportunity to address the Panel on this issue.
B. C
HINA
1. Written Submission of China
5.18 China welcomes this opportunity to present its views in this proceeding before the Panel
involving Norway's complaint regarding the Eu ropean Communities' antidumping measures on
farmed salmon products.
5.19 In this third party submission, China woul d like to contribute its understanding on the
following aspects of the dispute: (1) The Domestic Industry; (2) Sampling in Injury Determination;
and (3) The Minimum Import Prices ("MIPs") imposed by the EC.
5.20 With respect to the issues of domestic industry, the EC argues that Article 4.1 is a definition,
not an obligation. China points out that previous Panel decisions in both Argentina – Poultry and

134 Ibid., para. 7.359. Canada agrees with EC's argument that the panel in Argentina – Poultry Anti-
Dumping Duties , para. 7.359, explicitly approves the extension of the lesser duty principle to include
prospective reference prices set below the level of the normal value. EC's First Written Submission, para. 481.

Mexico - Corn Syrup supports China's opinion that Article 4.1 imposes an obligation that the
Members need to fulfil.
5.21 Besides, the EC considers that Article 4.1 simply provides two options for defining the
domestic industry, and the investiga tion authority has the discretion to select either option. However,
China believes that the AD Agreement establishes a direct correlation between the product under
consideration, the like product and the domestic i ndustry. There is inherent connection among those
definitions which should match with each other st rictly. China considers that the EC's such
interpretation of Article 4.1 will eventually cause a mismatch between the industry and the product.
5.22 Further, if Article 4.1 allows the investiga tion authority, when defining domestic industry
subject to investigation, to have the discretion to simply select a part of the domestic producers which
may be injured to a higher extent than the other pa rts so as to find injury eas ily, the injury evaluation
will not be objective under such discretion allowed. Also, it is against the original intention of the
drafters to nullify any of the options clearly stated in the agreement.
5.23 Concerning the sampling issue, in China's view, Article 3.1 and Article 3.4 of the
AD Agreement set the obligation for the investiga ting authorities to conduct an objective examination
of all relevant economic factors and indices having a bearing on the state of the injury to the domestic
industry. And China considers that it is within the discretion of the investigation authority to decide
what methodology it would use in an injury examination.
5.24 In both Footnote 13 and Article 6.10, the drafters set forth expressly the specific
circumstances and conditions under which an authorit y can resort to sampling; however, in China's
view, this does not automatically demonstrate that the drafters of the AD Agreement intended to
permit only two circumstances where sampling c ould be used and that sampling in other
circumstances would violate the AD Agreement by de fault. The requirement in the AD Agreement is
that the investigation be conducted "objectively" an d include an evaluation of all relevant economic
factors and indices that affect the state of the injury to the domestic industry.
5.25 Moreover, Although Article 6.10 applies to sampling for the purpose of dumping margin
determination only, it sets out the rationales that the drafters may have had in mind, and China
considers that the same rationales support sampling for the purpose of injury determination when it is
"impracticable" for the authority to evaluate al l relevant economic factor s of "all producers as a
whole" in the domestic industry within the time-l imits. Meanwhile, sampling shall not compromise
the "objectiveness" of the examination.
5.26 China notes that the Appellate Body in US – Lamb rules that the "data evaluated by the
competent authorities must be sufficiently representative of the 'domestic industry'. Accordingly,
China considers that as long as the investigation au thority can demonstrate that the specifics of the
case create an exceptional circumstance where sampling of the domestic industry is required and that
the sampling allows the authority to evaluate the data that's sufficiently representative of the
"domestic industry", the investigation authorit y has the discretion to choose the evaluation
methodologies it uses in its injury determination, and sampling shall be one of the options.
5.27 China considers that the MIPs imposed by the EC against farmed salmon in this case are
inconsistent with the AD Agreement because, with six different MIPs, the EC did not impose "a
single anti-dumping duty" against "a single product" in a single investigation.
5.28 China considers that there should be only on e duty for a product investigated against each
exporter/producer concerned. In China's view, the wording of the AD Agreement shows that the
drafters intended a strict corresponding relationshi p between a product (singular form), a margin of
dumping (singular form), an exporter/producer (singular form), and an antidumping duty (singular

form). Once the investigation authority has defi ned "a product", i.e., the product under consideration,
it shall determine "an individual margin of dumpi ng" for "a known exporter or producer" and impose
"an anti-dumping duty" against such product and such exporter/producer.
5.29 In the EC investigation in this case, the EC decided that all farmed salmon constitutes a single
product. For this single product, however, the EC determined six different minimum import prices for
the six different presentations of the "single product" . In the end, the EC imposed plural antidumping
duties on a single product it defined at the beginning of the investigation. Therefore, China considers
the MIPs the EC imposed in this investigation inconsistent with the AD Agreement.
5.30 In conclusion, China is of the view that the MIPs imposed by the EC in this case are not
WTO-consistent. However, China considers that the AD Agreement does not prohibit sampling to be
used in injury determination provided that it shall not compromise the "objectiveness" of the
examination. In addition, China hereby requests th is Panel to clarify on the definition of the domestic
industry under Article 4.1 of the AD Agreement.
2. Oral Statement of China
5.31 Thank you, Mr. Chairman, and members of the Panel. China welcomes this opportunity to
appear before you today to present its view on two legal issues raised in this proceeding. One is
sampling in injury determination; another one is the minimum import prices (MIPs) imposed by the
EC.
(a) Sampling in injury investigation
5.32 Regarding the issue of using sampling in injury investigations, China's view is that Article 3.1
and Article 3.4 of the AD Agreement obligates the investigating authorities to conduct an objective
examination of all relevant economic factors and i ndices having a bearing on the state of the injury to
the domestic industry. As long as these requireme nts are satisfied, it is the discretion of the
investigating authority to decide what met hodology it will use to conduct an objective injury
examination.
5.33 Footnote 13 and Article 6.10 of the AD Agreem ent set forth the specific circumstances and
conditions under which an authority may resort to sampling. However, in China's view, this should
NOT be interpreted to mean that the AD Agre ement permits only two circumstances where sampling
can be used. Rather, the requirement in the AD Agreement is that the investigation shall be conducted
"objectively" and shall include an evaluation of a ll relevant economic factors and indices that affect
the state of the injury to the domestic industry.
5.34 In addition, although Article 6.10 applies to sampling for the purpose of dumping margin
determination only, China considers that the same ra tionale in this Article supports sampling for the
purpose of injury determination when it is "imprac ticable" for the authority to evaluate all relevant
economic factors of "all producers as a whole" in the domestic industry within the time-limits.
However, sampling should only be used in exceptio nal circumstances, and it should not compromise
the "objectiveness" of the examination.
5.35 As long as the investigating authority can dem onstrate that the specifi cs of the case create
exceptional circumstances where the sampling of th e domestic industry is necessary, and that the
sampling allows the authority to evaluate the data that is sufficiently representative of the "domestic
industry", the investigating authority has the discretion to choose the evaluation methodologies it uses
in its injury determination, and sampling should be one of the options.

(b) The minimum import prices (MIPs) imposed by the EC
5.36 In China's opinion, once the investigating author ity has defined "a product" (i.e. - the product
under consideration), it should determine "an individual margin of dumping" for "a known exporter or
producer" and impose "an anti-dumping duty" against such product and such exporter.
5.37 In this case, the EC claims that all farmed salmon constitutes one single product. For this
single product, however, the EC determined six di fferent minimum import prices for the six different
presentations of the "single product", and finally imposed several antidumping duties on a single
product.
5.38 Therefore, China considers that the MIPs impo sed by the EC against farmed salmon in this
case are inconsistent with the AD Agreement. With six different MIPs, the EC did not impose "a
single anti-dumping duty" on "the product" under investigation.
5.39 Thank you again for this opportunity to express our views.
C. H
ONG KONG, CHINA
1. Written Submission of Hong Kong, China
(a) Introduction
5.40 Hong Kong, China welcomes the opportunity to take part as a third party in these
proceedings. Hong Kong, China has substantial interest in certain matters raised before the Panel and
would like to present its views in the present writte n submission on some specific issues concerning
the interpretation and application of the Agreemen t on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994 (the "AD Agreement").
5.41 It appears that in its investigation to dete rmine injury in this case, the EC limited its
examination to only some domestic producers. This raises the question as to whether the
AD Agreement permits a Member to select a sample with respect to the domestic industry for the
purposes of the injury determination. In additio n, regarding the dumping determination, the EC
appears to have excluded from the sample all non -producing exporters. This gives rise to the
question as to what extent a Member has discretion in selecting interested parties or categories thereof
in the framework of a sample for the purposes of determining dumping margins. These issues are of
systemic importance to anti-dumping investigations , and Hong Kong, China would like to provide its
comments thereon in the following paragraphs for consideration by the Panel.
(b) Sampling of domestic industry in injury determination
5.42 Article 3 of the AD Agreement governs the determination of injury by investigating
authorities. Injury is defined in footnote 9 of the AD Agreement as "material injury to a domestic
industry, threat of material injury to a domestic industry or material retardation of the establishment of
such an industry" (emphasis added). Article 4.1 of the AD Agreement defines the term "domestic
industry" as referring to " the domestic producers as a whole of the like products or to those of them
whose collective output of the products constitu tes a major proportion of the total domestic
production of those products."
5.43 Article 4.1 read in conjunction with footnote 9 thus requires that the domestic industry with
respect to which injury is considered and dete rmined must be the domestic industry defined in

accordance with Article 4.1135, that is, the domestic producers of the like product as a whole, or those
of them whose collective output of the like pr oduct constitutes a major portion of the domestic
production of the like product. Once the domestic industry has been defined for the purposes of the
investigation, it is not permissible to pick and choose among the producers, or to limit the injury
analysis to the few selected.
5.44 Hong Kong, China submits that the adoption of a selective approach, be it sampling or
otherwise, in investigating producers of a defi ned domestic industry in injury determination is
inconsistent with the above-mentioned Articles of the AD Agreement.
5.45 This position is reinforced by the fact that, unlike dumping determination or the establishment
of standing where sampling is expressly permitte d in certain precisely defined circumstances
(Article 6.10 and Footnote 13), Article 3 does not contain any provision that permits the use of
sampling or other selective approaches to limit the examination to only some of the domestic
producers. Neither does the context of the Article, as revealed in the various paragraphs thereof,
support an implied permission.
5.46 The possibilities of excluding certain specific producers in defined "domestic industry", as
allowed under Article 4.1(i) and (ii), are only releva nt to the specific scenarios of "related" producers
and "isolated" markets respectively. The provi sions are not and should not be read as general
enabling clauses in support of sampling or other selective approaches.
5.47 Likewise, the alternate interpretation of the te rm "domestic industry" as constituting "a major
proportion of the total domestic production" in th e chapeau of Article 4.1 neither stipulates nor
implies a right to sample or pick selectively domestic producers among the pre-determined "major
proportion" of the industry for the purposes of injury determination.
5.48 In the present case, the EC defined the Commun ity industry as referring to 15 producers. By
making the injury analysis with respect to only 5 of them, the EC did not act in compliance with the
AD Agreement.
5.49 In its first submission, the EC argues that WTO case-law confirms that WTO Members can
resort to sampling in an inju ry analysis, referring to the EC – Bed Linen case . However, in that case,
the Panel was only dealing with the issue as to wh ether investigating authorities, having defined the
domestic industry as a group of 35 producers and resorted to a sample of those producers, were
precluded from considering information relating to producers not within that sample, or not within the
Community industry (para. 6.175). As underlined by the Panel, India's claim in that case rested "on
premises concerning the correct definition of dome stic industry and sampling which are outside the
scope of our terms of reference" (para. 6.177). In other words, the Panel, in that case, was not
requested to deal with the definition of domestic indu stry or the legality of using sampling. This case
is therefore not relevant.
5.50 Instead, Hong Kong, China finds support to its view in the findings of the Appellate Body
which held in US – Hot-Rolled Steel that "[t]he investigation and examination must focus on the
totality of the 'domestic industry' and not simply on one part, sector or segment of the domestic
industry" (para.190). Indeed, these findings, even though made in the specific context of that case and
not necessarily relating to sampling as such, support th e view that the injury analysis must focus on
the "totality of the domestic industry" as defined in accordance with Article 4 of the AD Agreement.

135 See Panel Report, Mexico – Corn Syrup (DS132), para.7.147.

(c) Exclusion of (non-producing) exporters in dumping determination
5.51 Under specific circumstances, Article 6.10 of the AD Agreement allows a limited
examination of interested parties in the determination of dumping margins. This is the case where the
"number of exporters, producers, importers or types of products involved is so large as to make such a
determination impracticable." Examinations in the circumstances are limited to either a reasonable
number of interested parties by using statistically valid sampling method or to the largest percentage
of the volume of the exports that can reasonably be investigated.
5.52 Yet, neither this provision nor any other provision of the AD Agreement allows the exclusion
from the examination an entire category of interested parties, such as that in the present case, the non-
producing exporters.
5.53 Since limited examination is an exception to th e general rule of Article 6.10 which requires
investigating authorities to determine an individual dumping margin for each known exporter or
producer, it must be strictly interpreted. It should also be mindful that the use of that exception
actually deprives interested parties of their usual due process rights. In addition, the composition of
the investigated parties has a significant impact on selected as well as non-selected parties since
Article 9.4 authorizes the imposition of anti-dumping duties on non-selected parties on the basis of the
dumping margins determined for selected parties. Th is requires that the criteria used to select the
parties must guarantee that the selected ones are representative of all exporters and producers of the
country of export.
5.54 Article 6.10 and other provisions of the AD Agreement (e.g. Articles 2 and 9) clearly provide
for equal or evenhanded treatment to exporters and producers. As stated above, they are entitled to an
individual margin of dumping whenever circumstances allow. An en bloc exclusion of a specific
category of interested parties, i.e. exporters w ho are not producers themselves in the present case, in
the calculation of the dumping margins which will eventually be imposed on them is inconsistent with
Article 6.10 of the AD Agreement.
5.55 As a matter of fact, exporters and producers may have different export prices or normal
values in respect of the products concerned. Ad ministrative, selling and general costs as well as
profits, which are key factors in constructing normal value, differ among exporters and producers, and
among producing and non-producing exporters. Exclusion of exporters, or other categories of
interested parties, may lead to biased results in dum ping determination; and this also runs contrary to
the requirement of providing to all interested par ties full opportunity for the defence of their interests
in accordance with Article 6.2.
(d) Conclusion
5.56 While Hong Kong, China respects the rights of WTO Members to apply anti-dumping
measures in accordance wi th the rules of the WTO, Hong Kong, China considers it highly important
that Members comply with the requirements laid down by WTO rules in taking anti-dumping
measures, not least those pertaining to dumping and injury determinations in anti-dumping
investigations. In the light of the reasons set out in this submission, Hong Kong, China submits that
the practice of Members to engage in sampling of the domestic industry for the purposes of an injury
determination, or to exclude a category of interest ed parties, for instance all exporters who are not
producers, in the determination of dumping margin s are inconsistent with the requirements of the
AD Agreement. Hong Kong, China respectfully requ ests the Panel to take into account its comments
and views in its deliberations.
5.57
Hong Kong, China reserves its rights to submit further comments on these issues or on other
matters of this case on other appropriate occasions of the proceedings.

2. Oral Statement of Hong Kong, China
5.58 Hong Kong, China welcomes this opportunity to present its views as a third party to the
Panel.
5.59 Hong Kong, China recalls the two systemic issues raised in its earlier written submission,
namely, (a) sampling of the domestic industry in injury determination, and (b) exclusion of non-
producing exporters in dump ing determination. Hong Kong, China submits that both practices are of
questionable WTO-consistency. De tailed arguments have been set out in the written submission, and
suffice it to highlight a few of them today.
5.60 While sampling is not novel in the Agreement on Anti-dumping, wherever its use is
envisaged and permitted, there are express enabling clauses, with rules and standards accompanying.
As far as injury determination is concerned, the word "sample" or "sampling" is simply non-existent
in the Agreement, and neither are the relevant rul es or standards. In the circumstances, the only
logical conclusion is that drafters of the Anti-dum ping Agreement did not intend to allow the use of
sampling in injury determination. This reading is also in line with AB jurisprudence on the
importance of focusing on "the totality of the domestic industry"136 in the injury determination.
5.61 We note that some parties have put forward practical difficulty as an argument in support of
the use of sampling. We note that first of all this is not a legal argument. Secondly, the definition of
"domestic industry" in Article 4.1, which applies to the entire Agreement, already provides some
flexibility.
5.62 On the exclusion of non-producing exporters in dumping determination, Article 6.10 of the
Agreement requires investigating authorities to de termine an individual dumping margin for each
known exporter or producer. In the event of a limited examination where a dumping margin is
calculated for and applied to a non-selected party, it is of profound importance that selected parties,
whose data will be used as a basis for the calculation of the dumping margin, must be representative.
Given the vast differences, in terms of cost and profits, between pr oducing and non-producing
exporters, an en bloc exclusion of the latter will lead to biased dumping margins, and it is inconsistent
with Article 6.10. This also flies in the face of Article 6.2 which requires that "[t]hroughout the anti-
dumping investigation all interested parties shall have a full opportunity for the defence of their
interests".
5.63 Hong Kong, China respectfully requests the Pane l to take full account of Hong Kong, China's
views and arguments as set out in its written submissi on and highlighted in this oral statement in the
Panel's deliberation.
5.64 Thank you for your attention.
D. J
APAN
1. Written Submission of Japan
5.65 The following comments arise from Japan's system ic interest in ensuring fair and objective
interpretation of the AD Agreement.

136 See AB Report, US-Hot-Rolled Steel (DS184), para. 190.

(a) EC's definition of the domestic industry and Article 4.1
5.66 Japan has a systemic concern with regard to the definition of the domestic industry, on the
premise that the definition of the domestic i ndustry has broad implications for anti-dumping
investigations, including determinations of injury and causation.
5.67 In this case, both parties to the dispute rec ognize that the EC authorities limited the definition
of the domestic industry to a group of 15 producer s, and that all of these producers were either
complainants or explicit supporters to the complaint.
5.68 Japan has grave concern about the EC's interpretation that authorities may exclude domestic
producers of the like product from the "domestic indus try" for any reason (or for no reason), so long
as the remaining producers constitute "a major proportion" of domestic production of the like product.
5.69 Under Article 4.1 of the AD Agreement, as the Appellate Body has found in US – Hot-Rolled,
the investigation and examination must focus on the totality of the domestic industry and not simply
on one part, sector or segment of the domestic indus try. An interpretation of Article 4.1 of the
AD Agreement which would allow an authority to pick and choose domestic producers such as to
make a positive injury finding more likely, would be inconsistent with this obligation.
5.70 In addition, Japan recalls that if an authorit y defines the "domestic industry" narrowly, to
include only one segment of domestic production of the like product, then the authority might be
unable to conduct an "objective examination" of th e consequent impact of the dumped imports on
"domestic producers of [like] products" under Article 3.1 of the AD Agreement.
(b) EC's sampling techniques regarding the domestic industry
5.71 From those 15 producers noted in paragraph 5.67 above, the EC chose a sample of only five,
effectively excluding the remaining ten producers from the inquiry. The EC justified this by reason of
"the large number of producers of farmed salmon in the Community."
5.72 Japan has a systemic interest in ensuring that , if the AD Agreement allows authorities to
conduct sampling on the domestic industry, that the sa mpling be subject to clear standards. For the
Panel's consideration, Japan therefore makes the following observations.
5.73 First, there are no clear provisions in the AD Agreement which is applicable to the post-
initiation phase of the investigation that permit the au thorities to engage in sampling of the domestic
industry. Secondly, active participation of the do mestic industry may be expected in the present case,
where the domestic industry consists of a relativel y small number of companies, and the burden on
authorities of obtaining data from all producers should not be excessive. Third and lastly, Japan
thinks that even if the sampling of the domestic industry is permitted for the purposes of an injury
determination, the samples have to represent the comprehensive picture of the domestic industry.
(c) EC's use of minimum import prices (MIPs) and fixed duties
5.74 Japan considers that the lack of transparency in calculating the MIPs and fixed duties is more
than simply a problem of procedure. In the absen ce of a reasoned and adequate explanation of the
determination made, the conclusion of the EC that the non-injurious MIP did not exceed the level of
the non-dumped MIP, and that it therefore complied with its obligation under the AD Agreement,
becomes a mere assertion. In the absence of an adequate and reasoned expl anation, no meaningful
review by a Panel is possible.

5.75 Japan notes that Articles 9.1 and 9.3 of the AD Agreement and Article VI .2 of GATT 1994
make clear that an authority is not allowed to impose a duty in excess of the margin of dumping found
to exist. In light of this obligation, Japan be lieves it is incumbent upon the authorities to demonstrate
through a reasoned and adequate e xplanation that the level of th e duty imposed did not exceed the
level of the margin.
(d) Residual dumping margin applied to the unknown producers
5.76 Japan requests the Panel to consider whether facts available may be applied to companies
which were not identified in the course of the investig ation. Japan's concern relates to the application
of facts available to such companies without respect for the necessary notification requirements
provided for by the AD Agreement, for example in paragraphs 1 and 6 of Annex II to the
AD Agreement.
5.77 The Appellate Body in Mexico – Antidumping Measures on Rice found that putting exporters
or producers on notice that facts available will be used is a precondition for the use of facts available.
The need to notify exporters as set forth inter alia in paragraphs 1 and 6 of Annex II to the
AD Agreement, applies whenever facts available are used, whether based on information from the
applicant or otherwise. In this case, the EC assi gned to the unidentified exporters or producers a
margin of dumping equal to the highest margin of an exporter individually calculated.
(e) The EC's consideration of other factors in causation analysis
5.78 Japan recalls that the Appellate Body in US – Hot-Rolled found that investigating authorities
must separate and distinguish the injurious effects of the dumped imports from the injurious effects of
those other factors in terms of the application of Article 3.5 of the AD Agreement.
5.79 In this respect, Japan queries the sufficiency of the EC' analysis of such factors as (i) the EC
industry's increased cost of production, (ii) imports of salmon from the United States and Canada, (iii)
the price premium enjoyed by the EC products and (iv) the consistent trend of appreciation of the euro
against the Norwegian kroner.
2. Oral Statement of Japan
(a) Introduction
5.80 Mr. Chairman and distinguished Members of the Panel, it is a pleasure to appear before you
today to present views of Japan as a third party in this proceeding. The purpose of this statement is
not repeating the arguments shown in our written submission. Instead, we would like to cast light on
certain additional issues relating to (1) the inte rpretation of Article 6. 10 of the AD Agreement
concerning the sampling methodology; (2) the inte rpretation of Article 2.2 and 2.2.1 of the
AD Agreement concerning the term "reasonable peri od of time"; (3) the interpretation of Article 3.5
of the AD Agreement concerning other known factors; and (4) the interpretation of the proviso of
Article 9.4 concerning the applicability of the te rm "margins established under the paragraph 8 of
Article 6".
(b) Arguments
(i) The interpretation of Article 6.10 of the AD Agreement concerning the sampling methodology
5.81 Japan has a systemic concern about an interp retation of Article 6.10 of the AD Agreement
that would allow the authorities to pick and choose respondents without constraints.

5.82 More specifically, our concern arises from the Un ited States' argument in paragraph 16 of its
third party submission, that is, "Article 6.10 does not specify how the investigating authority is to
arrive at the largest percentage or which companies must be included in the result."
5.83 We would like to note that Article 6.10 sets forth that the "authorities shall, as a rule,
determine an individual margin of dumping for each known exporter or producer concerned of the
product under investigation." It is conditional to use two sampling techniques under the second
sentence of Article 6.10 only in cases "where the num ber of exporters, producers, importers or types
of products involved is so large as to make such a de termination impracticable." In this case at issue,
the EC used the second option under the second sentence of Article 6.10: the authorities may limit
their examination to "the largest percentage of the volume of the exports from the country in
question which can reasonably be investigated."
5.84 It is true, as the United States argues, that Article 6.10 does not prescribe the specific manner
in which the authorities are to comply with the requirement with arriving at "the largest percentage"; it
does not specify which companies must be included in the result, either. However, it does not mean
that Article 6.10 allows the authorities to pick and choose the exporters or producers freely as they
want.
5.85 It would be natural to suppose that the workload required to investigate one company does not
significantly differ depending on the volume of the exports. Then, the authorities can normally
maximize the volume of the exports investigated if they choose companies with larger volume of the
export. In other words, you may say the authorities cannot make the most of their resources if they
choose the same number of companies with smaller volume of the exports as samples. You may say
at least that the authorities would not satisfy the re quirements set forth in Article 6.10 if they chose
companies with smaller volume of the exports without sufficient reasons.
5.86 Thus, Japan asks the Panel to consider Norway 's claims in accordance with an appropriate
interpretation of Article 6.10 indicated above.
(ii) The interpretation of Article 2.2 and 2.2.1 of the AD Agreement concerning the term
"reasonable period of time"
5.87 It seems to be undisputed between parties to th is dispute that the EC authorities determine the
"reasonable period of time" on a case specific basis, although the EC's "normal practice" is to
determine the "reasonable period of time" the same as th e period of investigation. It is the third party
submission of the United States that raised our concern, which argues that Article 2.2.1 does not
preclude an investigating authority from using the pe riod of investigation as the "reasonable period of
time." Japan has a concern if the argument of the Un ited States indicates that Article 2.2.1 allows the
authorities to use the period of investigation as the "reasonable period of time" in every case without
examination of the specific situation of the case.
5.88 First of all, in accordance with the principle of eff ective treaty interpretation, different terms
should be interpreted having differe nt meanings. Therefore, it will be meaningless to use the term
"reasonable period of time" if the AD Agreement refers to the "period of investigation" by it.
5.89 Secondly, as Norway mentioned in its first wr itten submission, the appellate body in US –
Hot-rolled Steel already found that the word "reasonable" implies a degree of flexibility that involves
consideration of all of the circumstances of a particular case.
5.90 Thirdly, the second sentence of Article 2.2.1 which the United States referred to is only an
example of situations in which the authorities must consider the price as above cost. It does not lead

to the interpretation that the term "period of inv estigation" equals to the term "reasonable period of
time" in every case.
5.91 In any case, Japan would like to note that both the EC and Norway recognized that the length
of the "reasonable period of time" depends on sp ecific circumstances of the investigation, which
would make the United States' reference less relevant . Therefore, Japan asks the Panel to consider
whether the EC's determination of the "reasonable period of time" is appropriate in light of the
specific circumstances of the case at hand.
(iii) The interpretation of Article 3.5 of the AD Agreement concerning other known factors
5.92 It is Japan's concern that the argument ma de by the United States may lead to an
interpretation of Article 3.5 of the AD Agreement that the decision as to the types and amount of
information concerning "other factors," including non-subject imports, that will be collected and
examined by the investigating authorities is left to their discretion. Japan disagrees with this
argument.
5.93 Article 3.5 of the AD Agreement states that:
It must be demonstrated that the dumped imports are, through the effects of dumping,
as set forth in paragraphs 2 and 4, causing injury within the meaning of this
Agreement. The demonstration of a causal relationship between the dumped imports
and the injury to the domestic industry shall be based on an examination of all
relevant evidence before authorities. The authorities shall also examine any known
factors other than the dumped imports which are at the same time are injuring the
domestic industry, and the injuries caused by these other factors must not be
attributed to the dumped imports. (Emphases added.)
5.94 By requiring the authorities to "demonstrate" the causal relationship on the basis of an
examination of "any" known factors other than dum ped imports, Article 3.5 requires the authority to
examine whether any other known factor is causing injury to the domestic industry or not as a
prerequisite for separating and distinguishing the injurious effects of the dumped imports from the
injurious effects of such other factor. Article 12. 2.2 also requires that the notice or report "shall
contain the reasons for the acceptance or rejection of relevant arguments or claims made by the
exporters and importers." Under the circumstances where the parties to the case do not dispute
between each other that "other factors" at issue are "known" to the authorities during the course of the
investigation, Japan believes that the authorities mu st explain reasons why the authorities denied the
injury caused by those other factors.
5.95 Thus, Japan requests the Panel to examine ca refully whether the EC complied with its
obligation under Article 3.5.
(iv) The interpretation of the proviso of Article 9.4 concerning the applicability of the term
"margins established under the paragraph 8 of Article 6."
5.96 In its first written submission, the EC contends that the proviso in Article 9.4 which deals
with the treatment of dumping "margins" applies only to cases in subparagraph (i), and not to cases in
subparagraph (ii), including cases of the MIPs as in this case. Thus, according to the EC's argument,
regardless of the fact whether or not Grieg's margin was determined on the basis of the facts available,
its normal value must be taken into account in calculating the weighted average normal value
applicable to "all others."

5.97 However, Japan notes that the proviso including the phrase "for the purpose of this
paragraph" indicates that the proviso covers both subparagraphs (i) and (ii).
5.98 Furthermore, Japan doubts the consistency of the EC's argument. Japan does not reiterate its
comment, as was shown in Japan's third party submis sion, that the EC's calculation methodologies of
the MIPs are not disclosed. However, Japan believes that the EC's interpretation of Article 9.4 would
not be consistent if the EC, when it calculated MI P in accordance with the proviso of Article 9.4,
disregarded normal values of exporters for which zero and de minimis margins were determined,
while using the normal values of exporters for which margins were established under Article 6.8.
5.99 Therefore, Japan asks the Panel to confirm th at the proviso of Article 9.4 applies in a
consistent manner between subparagraphs (i) and (ii).
(c) Conclusion
5.100 To conclude, Japan would like the Panel to caref ully examine these issues mentioned in this
statement, in addition to the arguments advanced in its written submission. Thank you again, for your
attention.
E. K
OREA
1. Written Submission of Korea
(a) Introduction
5.101 Korea believes that the anti-dumping investig ation conducted by the European Communities
("EC") against farmed salmon from Norway constitutes serious violation of Articles 2, 3, 5 and 6 of
the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
("AD Agreement"). In particular, Korea notes that the EC determination on "product under
consideration," its determination on "domestic industry," and its a pplication of "facts available" were
not based on adequate factual information gathered in the course of the anti-dumping investigation,
thus constituting legal errors.
(b) Legal Arguments
(i) The EC determination of "product under considera tion" constitutes violation of Articles 2, 3,
and 5 of the AD Agreement
5.102 Articles 2.1 and 2.6 of the AD Agreement require an investigating authority to ensure that
different products considered in an anti-dumping inv estigation are all "like" in all relevant respects.
In the underlying investigation of the current di spute, however, the EC failed to implement this
important obligation.
5.103 Here, the EC simply ignored widely different characteristics of various salmon products sold
in the EC market. The EC determined that ever ything from whole fish to small, skinned fillets
constitute "a single product." 137 In fact, the breadth of the EC determination can be evidenced by the

137 The EC product under consideration includes (i) whole fish, (ii) head-on- gutted ("HOG") fish, (iii)
"other" (including in particular gutted, head off), (iv) w hole fish fillets and fillets cut into pieces of any size,
weighing more than 300 grams per fillet, skin on, (v) wh ole fish fillets and fillets cut into pieces of any size,
weighing more than 300 grams per fille t, skin off, and (vi) fillets weighi ng less than 300 grams, cut into pieces
of any size, with skin on or off. See Article 1(5) of the EC Definitive Regulation.

fact that the "product" covers 6 different cu stoms nomenclature codes and 33 different control
numbers in the Taric system.138
5.104 The EC attempted to justify this broadly define d definition by simply stating that "they are
considered to constitute a single product for the purpo se of the proceeding," but it fails to provide any
meaningful factual discussion to support this conc lusory statement. Without adequate explanation
and discussion, Korea believes, the EC determinati on that six actually separate products constitute a
single product under consideration cannot be sustaine d and constitutes violation of Articles 2.1 and
2.6 of the AD Agreement.
5.105 In Korea's view, the combination of non-like products in an anti-dumping investigation
undermines the fundamental accuracy and reasonableness of the investigation. In other words, this
erroneous determination leads to finding an anti- dumping margin when there is actually no dumping
and material injury when there is not.
5.106 Such being the case, by relying on an erroneous "product under consider ation" determination
throughout its anti-dumping investigation, the EC also violated Articles 3.1,3.2, 3.4, 3.5 and 3.6 of the
AD Agreement to the extent that th e EC reached a material injury de termination based on this faulty
"product under consideration" finding. In additi on, the EC violated Articles 5.1 and 5.4 of the
AD Agreement since it initiated an anti-dumping inv estigation on the basis of legally and factually
flawed "product under consideration" determination.
(ii) By failing to ensure that the petition was made by or on behalf of the EC domestic industry,
the EC violated Article 5.4 of the AD Agreement
5.107 Furthermore, Article 5.4 of the AD Agreement s tipulates a so-called "standing" threshold that
an investigating authority must satisfy in initia ting an anti-dumping investigation. This provision
requires the investigating authority to confirm that a petition for an anti-dumping investigation is not
made by a certain group of the domestic industry, but made "by the domestic industry or on behalf of
the domestic industry."
5.108 In the underlying investigation, the EC noted that fifteen domestic producers who made the
petition satisfied the standing requirement as set out in Article 5.4 of the AD Agreement. The EC,
however, did not support its finding with adequate factual informa tion. There exists conflicting
factual information and industry data that were not adequately accounted for by the EC. The EC also
failed to provide an explanation as to how it examin ed the degree of support for, or opposition to, the
application expressed by domestic salmon producers.
5.109 Korea therefore believes that unless the EC presen ts adequate factual information to support
its initiation decision, the Panel should determine th at the EC initiation violates Article 5.4 of the
AD Agreement.
(iii) The EC application of "facts available" is not warranted under the circumstances and thus
violates Article 6.8 and Annex II of the AD Agreement
5.110 Article 6.8 and Paragraphs 3 and 6 of Annex II of the AD Agreement do not provide a carte
blanche to an investigating authority conducting an anti-dumping investigation whenever it
encounters a less than optimal information from a foreign respondent. Instead, these provisions
unequivocally provide conditions that need to be sa tisfied before the investigating authority applies
the facts available standard.

138 See id.

5.111 Paragraph 3 of Annex II stipulates that all veri fiable information that can be used in the
investigation without undue difficulties should be take n into account by the investigating authority.
Paragraph 6 of Annex II, in turn, stipulates that if the investigating authority plans to apply facts
available, it must inform the foreign respondent of the reason and offer another opportunity to provide
the requested information within a reasonable period of time.
5.112 In the underlying investigation, however, the EC applied facts available standard in a manner
inconsistent with these provisions and rejected th e information submitted by a Norwegian company.
Under the circumstances surrounding the company and the communication between the EC
investigating authority and the company, Korea believes that the Norwegian company cooperated
with the EC investigation in a reasonable manner.
5.113 Korea believes that the EC's rejection of th e company's information was unreasonable and
unwarranted. The EC's recourse to facts available, therefore, constitutes violation of Article 6.8 and
Paragraphs 3 and 6 of Annex II of the AD Agreement.
(c) Conclusion
5.114 For the foregoing reasons, Korea respectfully subm its that the Panel finds that the EC's anti-
dumping investigation against farmed salmons from No rway constitutes violation of Articles 2, 3, 5
and 6 of the AD Agreement, respectively, and r ecommends that the EC bring the measure into
conformity with its obligation under the AD Agre ement. Korea appreciates this opportunity to
present its view to the Panel.
2. Oral Statement of Korea
5.115 Korea did not submit an oral statement to the Panel.
F. U
NITED STATES
1. Written Submission of the United States
(a) Scope and definition of domestic industry
5.116 "Product Under Consideration" . Norway argues that the Eu ropean Communities ("EC")
acted inconsistently with Articles 2.1 and 2.6 of the Agreement on Implementation of Article VI of
the General Agreement on Tariffs and Trade 1994 ("AD Agreement") in identifying the product under
consideration, and as a consequence issued a ffirmative dumping and injury determinations
inconsistent with Articles 2.1, 3.1, 3.2, 3.4, 3.5, 3.6, 5.1 and 5.4 of the AD Agreement. Norway's
argument, however, rests upon an incorrect reading of Article 2.6, which contains a definition of the
like product (i.e., the product to which the product under consideration is compared) not an obligation
with respect to the product under consideration. Article 2.1, in turn, provides that "a product is to be
considered as being dumped . . . if the export price of the product exported from one country to
another is less than the comparable price, in the ordinary course of trade, for the like product when
destined for consumption in the exporting country." This general statement regarding the comparison
between the product under consideration and the like product likewise does not provide guidance on
how the product under consider ation is to be defined. 139 Thus, as previous panels have found, these

139 First Written Submission of the EC, paras. 19-21; cf. First Written Submission of Norway, para. 85.

provisions leave to the investigating authority's di scretion how a product under consideration is to be
established.140
5.117 Definition of the Domestic Industry . If the EC's definition meets the "major proportion" of
domestic production standard of Article 4.1, the Panel still should assess whether the EC's exclusion
of certain categories of salmon producer from the industry was biased or designed to favor the interest
of any group of interested parties in the inv estigation, including the producers who filed the
petition.141 An investigating authority's definition of the domestic industry under Article 4.1 must be
based on "positive evidence and invo lve an objective examination" of the evidence relating to
injury.142 According to the Appellate Body, "an 'objec tive examination' [under Article 3.1] requires
that the domestic industry, and the effects of dumpe d imports, be investigated in an unbiased manner,
without favoring the interests of any interested party, or group of interested parties, in the
investigation."143 With regard to Norway's argument that the EC's definition of its domestic industry
was inconsistent with the requirements of th e AD Agreement because the EC analyzed only a
sampling of the domestic industry, 144 while the Agreement does not e xplicitly permit an investigating
authority to rely on a small sample of domestic producers when performing its injury analysis in
antidumping investigations, it does make clear that sampling is an appropriate methodology when
used in other contexts. The EC could reasonably deci de to rely on a sample of the domestic industry,
as long as its decision was based on a reasonable set of assumptions or inferences as to the validity of
the sample.
(b) Determination of dumping
5.118 Selection of Interested Parties When Limiti ng Examination to the Largest Percentage of
Exports. The United States disagrees with Norway's view that, as a general rule, Article 6.10
precludes an investigating authority from limiting the selection of investigated parties to particular
categories, as circumstances may exist in which an investigating authority may appropriately limit its
examination to certain categories in accordance with Article 6.10. Furthermore, Article 6.10 does not
oblige investigating authorities using the second me thodology to generate a "statistically valid"
sample, a requirement that applies only when the fi rst methodology is used. Norway's assertion that
the companies selected by the EC were unrepresentativ e is therefore not relevant to an assessment of
whether the EC complied with Article 6.10.145
5.119 Determination of Sales in Ordinary Course of Trade . Norway incorrectly argues that the
EC's use of the investigation period as a reasonable period of time, without "determining" that such
period was in fact reasonable based on the particular facts of the investigation, was inconsistent with
Article 2.2.1.
146 Article 2.2.1 does not preclude an investigating authority from using the period of
investigation as "a reasonable period of time" or oblige the investigating authority to define the
reasonable period of time differently from case to case. Indeed, the cost recovery test described in
Article 2.2.1, second sentence, deems the period of i nvestigation to be the reasonable period of time.

140 Certain determinations of the US Department of Commerce ("Commerce") and the US International
Trade Commission ("USITC") cited by Norway simply demonstrate that Commerce and the USITC define the
"product under consideration" on a case- by-case basis, taking into consideration the particular facts available to
them. The investigations cited by Norway do not suppo rt the claim that the AD Ag reement contains rules for
defining the "product under consideration."
141 Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel
Products from Japan, WT/DS184/AB/R, adopted 23 August 2001, para. 193 (hereinafter US – Hot-Rolled Steel
(AB)); see also First Written Submission of Norway, para. 243.
142 AD Agreement, Article 3.1.
143 US – Hot-Rolled Steel (AB), para. 193.
144 First Written Submission of Norway, paras. 272-281.
145 Id., paras. 300-307.
146 Id., paras. 362-63.

Furthermore, Norway is incorrect in ass erting that unless three conditions exist ( i.e., below-cost sales
are made within an extended period of time, in s ubstantial quantities, and at prices that do not provide
for the recovery of all costs within a reasonable period of time), "below-cost sales must be treated as
made in the ordinary course of trade."
147 As the Appellate Body has observed, "Article 2.2.1 . . .
does not purport to exhaust the range of methods fo r determining whether sales are 'in the ordinary
course of trade', nor even the range of possible me thods for determining whether low-priced sales are
'in the ordinary course of trade.'" 148 Thus, the fact that the EC identified sales as outside the ordinary
course of trade based on criteria other than those identified in Article 2.2.1 would not alone support
the conclusion that it acted inconsistently with that provision.149
5.120 Application of Antidumping Duty . Consistent with Articles 9.1 and 9.3, the amount of any
antidumping duty may not exceed the margin of dump ing. Article VI:2 of the GATT 1994, read in
conjunction with Article VI:1, provides that the ma rgin of dumping is the price difference when a
product is being introduced into the commerce of the importing country at a price less than normal
value. Article 9.4 of the AD Agreement recogni zes that a Member may utilize a prospective normal
value system of assessing antidumping duties. Assu ming Norway's description of the EC's minimum
import price ("MIP") system is accurate, and based on the EC's description in its own submission, the
system appears to operate in a similar fashion to a prospective normal value system. To the extent
that the EC used MIPs that exceed properly established normal values, the antidumping duties
calculated on the basis of such MIPs would exceed th e margin of dumping. If this is the case, such
action would be inconsistent with Article VI:2 of the GATT 1994, and Articles 9.1, 9.2, 9.3 and 9.4 of
the AD Agreement.
5.121 Profit Calculation
. The United States agrees with Norw ay that an investigating authority
may not exclude actual data from the calculation of the profit and selling, general and administrative
("SG&A") ratios solely because sales were made in low volumes. As the Appellate Body explained
in EC – Cast Iron Fittings, Article 2.2.2 "excludes actual data outside the ordinary course of trade, but
does not exclude data from low-volume sales." 150 The United States disagrees, however, with
Norway's assertion that because the EC accepted act ual SG&A cost data, it must also have accepted
the actual profit data. 151 An investigating authority may u se actual SG&A data even when actual
profit data is rejected because SG&A costs relate to the actual selling and general operations of a
company.
5.122 Transparency. In response to Norway's assertion th at the EC acted inconsistently with
Article 6.4, and in turn, Article 6.2, because certain documents filed by interested parties during the
investigation were missing from the non-confiden tial record accessible at the EC Commission's
premises, the EC incorrectly argues that, under Article 6.2 and 6.4, "the investigating authority may
not disclose information it has received from one inte rested party to another interested party, unless it
is relevant for the preparation of the latter's case." 152 The United States agrees with Norway that
transparency and procedural fairness are key princi ples of the AD Agreement. Article 6.4 operates as
an affirmative obligation to disclose certain informat ion to interested parti es "whenever practicable,"
and requires disclosure of all non-confidential informa tion "relevant to the presentation" of a party's
case that is used by the authorities in the antidumping investigation. 153 "Relevant" information

147 Id., para. 338.
148 US – Hot-Rolled Steel (AB), para. 141.
149 First Written Submission of the EC, paras. 218-19 (discussing ordinary course of trade test for
profitable sales).
150 Appellate Body Report, European Communities – Anti-Dumping Duties on Malleable Cast Iron
Tube or Pipe Fittings from Brazil, WT/DS219/AB/R, adopted 18 August 2003, para. 101 (hereinafter EC – Cast
Iron Fittings (AB)).
151 First Written Submission of Norway, para. 383.
152 First Written Submission of the EC, para. 531.

includes all information relevant from the perspective of the interested party, and is not limited to that
which the investigating authority deems relevant.
5.123 Cost Adjustments . With regard to Norway's claim that the EC made several cost
adjustments in a manner inconsistent with the AD Agreement, as the EC notes, Article 2.2.1.1
provides that costs shall be adjusted as provided " unless already reflected in the cost allocations under
this subparagraph." Many of the costs Norw ay discusses in its submission may be captured
appropriately under the first sentences of Article 2.2. 1.1 without the requirement of the last sentence
that they "benefit future and/or current production."
5.124 Facts Available . In response to Norway's assertion that the EC failed to contact "non-
cooperating companies" before assigning them a hi gher rate, inconsistent with Article 6.8 and
Annex II,154 the EC incorrectly suggests that it is ex cused from complying with Article 6.8 and
Annex II merely because it used the MIP as the basis for imposing antidumping duties on these
companies. The obligation contained in Article 6.8 is not by its terms limited to determinations that
are "determinative of the duty imposed," as the EC claims; rather, Article 6.8 provides that it applies
to the use of facts available in "preliminary and fi nal determinations, affirmative or negative." To the
extent that the EC failed to give proper notice of the investigation before applying facts available to
the alleged "non-cooperating" companies, its appli cation of a higher margin would be inconsistent
with Article 6.8 and Annex II.
(c) Determination of injury
5.125 Norway also claims that the EC violated Ar ticles 3.1 and 3.5 of the Agreement because it
failed to ensure that injury allegedly caused by two other factors was not attributed to dumped
imports. According to Norway, the EC failed r easonably to explain why increases in the EC salmon
industry's costs and an increase in non-subject im ports from the United States and Canada were not
the causes of injury to the EC's salmon industry. 155 Although Article 3.5 of the Agreement sets out
several factors that "may" be cons idered by investigating authorities in ascertaining whether there is a
"causal relationship" between dumped imports and inju ry to the domestic industry, it does not specify
the type of information that an authority must co llect and examine for this purpose, or identify the
detail in which the authority must explain its analysis of the information. Rather, Article 3.5 simply
provides that the investigating authority must determine, on the basis of "all relevant evidence" before
it, whether such a causal relationship exists.
5.126 Similarly, Article 3.5 provides that the inv estigating authorities must examine any known
factors other than the dumped imports which at th e same time are injuring the domestic industry to
ensure that injury caused by th ese other factors is not attributed to the dumped imports. As the
Appellate Body has recognized, however, the AD Agreement does not prescribe the particular
methods to be used by investigating authorities to separate and distinguish the injurious effects of
unfair imports from the injurious effects of the other known causal factors. 156 Further, the decision as
to the types and amount of information concerning "other factors," including non-subject imports, that
will be collected and examined by the investigating authorities is left to their discretion.

154 First Written Submission of Norway, para. 490.
155 Id., paras. 574-624.
156 EC – Cast Iron Fittings (AB) , para. 189 (stating that "provided that the investigating authority does
not attribute the injuries of other causal factors to dumped imports, it is free to choose the methodology it will
use in examining the 'causal relationship' between dumped imports and injury.")

2. Oral Statement of the United States
5.127 It is a pleasure to appear before you to present the views of the United States concerning
certain issues in this dispute. Today, we w ould like to make a few brief points on two issues
discussed in our written submission: (1) transparen cy and (2) the definition of the product under
consideration.
(a) Transparency
5.128 First, regarding Norway's claim relating to the proper interpretation and application of
Articles 6.2 and 6.4 of the AD Agreement, the Unit ed States agrees with Norw ay that transparency
and procedural fairness are key principles reflected in the AD Agreement.
157 Consistent with these
principles, Article 6.2 provides that "all interested parties shall have a full opportunity for defence of
their interests," and Article 6.4 provides in relevant part that "authorities shall whenever practicable
provide timely opportunities to see all information that is relevant to the presentation of their cases,
that is not confidential . . ., and that is used by the authorities in an anti-dumping investigation."
5.129 In connection with Article 6.4, referring to th e language on "relevance" contained in that
provision, the EC makes two assertions on which the United States would like to comment. First the
EC asserts that "the investigating authority may decide on which information access should be granted
or not."158 With respect to this statement, as the EC concedes, relevance must be assessed from the
perspective of the interested party presenting its case. 159 As the panel observed in EC-Cast Iron
Fittings, "whether or not the investigating authorities regarded...information...to be relevant does not
determine whether the information would in f act have been 'relevant' for the purposes of
Article 6.4."160
5.130 The EC further asserts that "the investigati ng authority may not disclose information it has
received from one interested party to another interest ed party, unless it is relevant for the preparation
of the latter's case."161 With respect to this assertion, the EC's statement is unsupported by the text of
Article 6.4, which contains an affirmative obligatio n to disclose information in certain circumstances,
not a prohibition against such disclosure.
5.131 Like Article 6.4, other provisions of Article 6 contain affirmative obligations to provide
opportunities to interested parties to see certain non-confidential information. For example,
Article 6.1.2 requires that non-confidential "eviden ce presented in writing by one interested party
shall be made available promptly to other interest ed parties participating in the investigation."
Article 6.9 requires that investigating authorities "i nform all interested parties of the essential facts
under consideration that form the basis for the decision whether to apply definitive measures" and that
such disclosure should take place "in sufficient time for the parties to defend their interests."
5.132 These provisions of Article 6 promote the ability of interested parties to be fully in control of
their own defense. They do not contain prohibitions on the types of information that may be provided
to interested parties. The very language of Article 6.4 makes clear that it est ablishes a rule regarding
when an authority must disclose information, and not when it must withhold information.

157 First Written Submission of Norway, paras. 687, 698.
158 First Written Submission of the EC, para. 531.
159 First Written Submission of the EC, para. 531.
160 Appellate Body Report, European Communities – Anti-Dumping Duties on Malleable Cast Iron
Tube or Pipe Fittings from Brazil, WT/DS219/AB/R, adopted 18 August 2003, para. 145.
161 First Written Submission of the EC, para. 531.

(b) Product under consideration
5.133 We turn next to Norway's claim that the EC's definition of the "product under consideration"
was inconsistent with Articles 2.1 and 2.6 of the AD Agreement. On this issue, Norway, as well as
Korea in its third party submission, reasons backwa rds from the definition of "like product" contained
in Article 2.6 in an attempt to create an obligati on on Members regarding how to define the product
under consideration. No such obligation exists in the AD Agreement. 162 The United States agrees
with the EC and the panel in US - Softwood Lumber V that the product under consideration is the
starting point for defining the "like product," and not the reverse. 163 Neither Article 2.1 nor
Article 2.6 contain rules on how the product under consideration should be determined. Norway's
assertion otherwise does not accord with the text a nd would be unworkable, given that the "like
product" cannot be determined until the product under consideration has been specified by the
investigating authority.164
5.134 Finally, the determinations by US investiga ting authorities cited by Norway and Korea do not
support the conclusion that Articles 2.1 and 2.6 impose obligations with respect to how an
investigating authority defines the product under cons ideration. As an initial matter, Norway as the
complaining party must demonstrate that the actions of the EC are inconsistent with specific
obligations contained in the AD Agreement. The fact that one WTO Member's investigating authority
made particular determinations in certain cases does not support the conclusion that such actions are
required by the AD Agreement. The AD Agreement does not prescribe rules for all aspects of an
antidumping determination; where no such rules exist, those aspects of the determination may be left
to the investigating authority's discretion or otherwi se governed solely by a Member's domestic law.
Insofar as it is relevant, US investigating authoriti es determine the product under consideration on a
case-by-case basis, taking into consideration the partic ular facts of each case. The two cases cited by
Norway and Korea do not stand for the proposition that the EC was required to conduct two separate
investigations, as Korea and Norway claim, or that the US investigating authorities would necessarily
have done so had the facts of this case been before them.
VI. INTERIM REVIEW
6.1 On 2 July 2007, we submitted our Interim Report to the parties. On 16 July 2007, Norway
and the European Communities submitted written requests for review of precise aspects of the Interim
Report. On 30 July 2007, Norway and the European Communities submitted written comments on
each other's request for interim review. Neither party requested an additional meeting with the Panel.
6.2 Due to changes as a result of interim review , the numbering of paragraphs and footnotes in
the final report has changed from the Interim Report . The text below refers to the paragraph and
footnote numbers in the Interim Report. Where we have made changes, a reference to the
corresponding paragraph or footnote number in the final report is included (in parentheses) for ease of
reference. We have also corrected a number of typographical and other non-substantive errors
thorughout the report.

162 First Written Submission of Norway, paras. 84-9 8; Third Party Submission of the Republic of
Korea, paras. 5-12.
163 First Written Submission of the EC, paras. 19-21; United States – Final Dumping Determination on
Softwood Lumber from Canada , WT/DS264/R, adopted 31 August 2004, modified by Appellate Body Report,
adopted 19 May 2003, paras. 7.153, 7.156-7.158 ("US – Softwood Lumber V (Panel)").
164 US – Softwood Lumber V ( Panel), paras. 7.153, 7.156-7.158; Panel Report, Korea – Anti-Dumping
Duties on Imports of Certain Paper from Indonesia , WT/DS312/R, adopted 28 November 2005, paras. 7.219-
7.221.

A.
REVIEW REQUESTED BY NORWAY
6.3 Norway requested review of paragraphs 4.138, 7.157, 7.158, 7.160, 7.192, 7.195, 7.197,
7.233, 7.240, 7.287, 7.382, 7.447, 7.455, 7.460, 7.485, 7.491, 7.668, 7.670, 7.720, 7.779, 7.796, 8.1,
8.6 – 8.9, and footnotes 278 and 338 of the Interim Report, and requested that we insert a new section
following paragraph 7.513.
6.4 In the absence of any objections from the Eu ropean Communities, we made the changes
requested by Norway to paragraphs 4.138 and 8.1(xi) and footnotes 278 (now 307) and 338 (now 367)
of the Interim Report, albeit not always in the exact terms proposed by Norway.
6.5 Norway asks the Panel to make certain modificati ons to the text of paragraphs 7.157, 7.158,
7.160 and 7.195, in order to reflect what, in its view, was the fact that the Norwegian Seafood
Federation ("FHL"), interested parties and the Norwegian government were all under the impression
that the investigating authority intended to make the selection of parties to investigate on the basis of a
"statistically valid" sample, in the same way it had al legedly done so in previous investigations. The
EC asks the Panel to reject Norway's request be cause it argues that it tries to introduce factual
findings that were not argued before the Panel.
6.6 We decline to make the changes requested by Norway. In its comments on the Interim
Report, Norway recalled that it referred to the Norwegian government's impression of the
investigating authority's intention to select the i nvestigated parties on the basis of a "statistically
valid" sample in its comments on the EC's answers to the Panel's second set of questions. Thus, it was
not until a late stage in this dispute that Norway advanced the factual assertions that are the basis for
the requested modifications. The EC has contested Norway's factual assertions, and noted that it did
not have an opportunity to respond to Norway's assertions during the dispute. We confirm that the EC
did not have an opportunity during the proceedings in this dispute to respond to the factual assertions
that Norway now asks the Panel to treat as findings of fact. In this light, we believe that we cannot
simply accept Norway's factual assertions. In any case, we have closely reviewed the two pieces of
evidence that Norway argues support its assertions, and believe that they do not unambiguously
substantiate Norway's position.
6.7 Norway asks the Panel to add text to paragraph 7.197 to reflect part of the argument it made
to explain why Salmar reported zero export sales in its reply to the EC's "sampling questionnaire".
The EC contends that the requested changes sugg est that the questionnaire excluded information on
exports made by unrelated traders. We have added footnote 377 to pa ragraph 7.197 recalling
Norway's argument and added some of our own observations in order to clarify the facts.
6.8 Norway requests that the Panel amend the characterisation of its arguments at paragraph
7.233 in respect of the meaning of the verb "deter mine" in Article 2.2.1 of the AD Agreement. In
particular, Norway asks the Panel to "correctly fo rmulate its contentions" as set out in response to
Panel Question 80.
165 The EC did not respond to Norway's comments. We have made an appropriate
amendment to paragraph 7.233 (now 7.235) and adde d paragraph 7.236 in order to address what we
understand to be Norway's concerns.
6.9 Norway asks the Panel to delete from paragra ph 7.240 the reference to its answer to Panel
Question 137 because it contends that it wrongly ch aracterizes Norway's position on the meaning of
the expression "the time of sale" in the last sentence of Article 2.2.1. In particular, Norway argues
that it did not intend that its response to Panel Ques tion 137 should be interpreted as indicating that
"the time of sale" could be equated with "the particular day of sale, or an average including that day,

165 Norway, Comments on the Interim Report, para. 15.

over a week, month or the period of investigation". 166 The EC did not respond to Norway's
comments.
6.10 We have reviewed Norway's response to Pane l Question 137 and consider that the Panel's
initial understanding of Norway's answer was not un reasonable. However, we recognize that it might
also be interpreted in the manner that Norway no w contends was intended. Therefore, we have
decided to grant Norway's request, and modified the text of paragraph 7.240 (now 7.243) accordingly.
6.11 Norway asks the Panel to modify paragraph 7.287 to reflect what it asser ts was the fact that
the investigating authority constructed normal valu e for all investigated pa rties, including [[XXX]]
and [[XXX]]. The EC did not respond to Norway's comments. We believe that the facts surrounding
the treatment of [[XXX]] and [[XXX]] in the investigation are appropriately addressed in
paragraph 7.290. Therefore we see no need to make the changes requested by Norway.
6.12 Norway requests that the Panel provide a more detailed explanation of the rationale for the
findings made in paragraph 7.382 in respect of Gr ieg's filleting costs. The EC considers that the
present text of this paragraph "cl early states the Panel's conclusions". 167 We believe that the current
text of paragraph 7.382 adequate ly explains the Panel's findings, inter alia, by cross-reference to the
Panel's previous observations on the disciplines of pa ragraph 3 of Annex II. Accordingly, we decline
Norway's request.
6.13 Norway asks the Panel to amend the description of the meeting that took place on 2 June 2005
between the FHL and the investigating authority to re flect the fact that a number of companies also
attended the same meeting and made statements before the investigating authority. The EC submits
that Norway's request is irrele vant because the EC's justifica tion for treating unknown producers as
non-cooperators arose from their failure to participat e in the process for selecting a sample, at the
outset of the investigation. We have made a nu mber of modifications to paragraphs 7.447 (now
7.450) and 7.457 (now 7.460) to more accurately reflect the facts surrounding the meeting of
2 June 2005.
6.14 Norway asks the Panel to replace the word "all" in paragraph 7.455 with the word "those", in
order to clarify that the FHL did not undertake to contact "all" Norwegian salmon producers, but only
"those" producers that FHL considered to be of relevance for the anti-dumping proceeding. The EC
argues that any change to the wording must not co nceal what it argues was the distinction drawn by
the Panel between what the FHL had presented itself as doing (act as a channel to all the industry
associations) and what it actually decided to do (cont act some of them only). We consider that the
language of paragraph 7.455 states the Panel's views on this issue sufficiently clearly, and accordingly
we reject Norway's request.
6.15 Norway requests that the Panel insert several pa ssages of additional text into paragraph 7.460
in order to fully reflect all of the arguments Norway made in respect of the meaning of the term "cost
of production". The EC did not respond to Norway's comments. In our view, the text of paragraph
7.460, and the following paragraphs in section F.1 of our findings, provide a sufficiently clear
summary of Norway's arguments for the purpose of resolving the particular claims at issue.
Therefore, we do not consider that it is necessary to make the requested modifications.
6.16 Norway argues that the Panel's findings in resp ect of its complaint against the investigating
authority's NRC adjustments (paragraph 7.485) fail to properly address Norway's claims and,
therefore, did not resolve the dispute between the pa rties. Specifically, Norway submits that once the
Panel had dismissed Norway's arguments on the co rrect interpretation of the last sentence of

166 Norway, Answer to Panel Question 137.
167 EC, Comments on Norway's Comments on the Interim Report.

Article 2.2.1.1, it should have app lied its own interpretation of Article 2.2.1.1 to the facts. Norway
now asks the Panel to do so. The EC states that it agrees with the Appellate Body that it is not the
role of a panel to "make the case for a complaining party".
168
6.17 As our evaluation in section F.1(c)(i) reveals, th e claims against the investigating authority's
treatment of NRCs, that are the subject of Norway's interim review comments, were premised on the
legal argument that the last sentence of Article 2.2.1.1 requires that solely NRCs which benefit current
and/or future production can be included in the co st of production. In dismissing Norway's legal
argument, we have therefore found that Norway has failed to establish a prima facie case against the
investigating authority's NRC adjustments. Having made this finding, we consider that we have
satisfied our obligation of making an objective asse ssment of the matter that is before us, and have
properly resolved the dispute between the parties. In this regard, we recall that the Appellate Body
has observed that a "panel errs when it rules on a claim for which the complaining party has failed to
make a prima facie case".169 We therefore reject Norway's request.
6.18 Norway asks the Panel to insert a new section in the report to address a claim it alleges was
made in its FWS against the investigating authorit y's treatment of certain NRCs incurred by [[XXX]]
on the closure of four smolt production facilities, that was not addressed by the Panel in the Interim
Report. Norway submits that it made two separate a nd distinct claims on this issue: First, that the
investigating authority was not entitled to treat the NRCs as costs of production within the meaning of
Article 2.2.1.1; and secondly, "in the alternative" 170, that even if the NRCs were costs of production,
the investigating authority nevertheless acted incons istently with Article 2.2.1.1 because it failed to
properly allocate those NRCs to [[XXX]] cost of production. In its comments on Norway's request,
the EC does not express an opinion on whether the Panel should accept Norway's proposal, but
repeats certain factual assertions already made during the proceedings.
6.19 After closely reviewing the parties' submissions regarding the investigating authority's
treatment of [[XXX]] NRCs, we do not understand Norw ay to have made a separate and "alternative"
claim that the investigating authority acted incons istently with Article 2.2.1.1 because it failed to
properly allocate NRCs to [[XXX]] cost of producti on. Norway asserts that its "alternative" claim
was expressed in two paragraphs of its FWS. Ho wever, even when read in isolation, we do not
understand these two paragraphs to unequivocally st ate the claim that Norway alleges was being
made. For instance, there is no reference to Ar ticle 2.2.1.1, nor does it appear to us that the
paragraphs are drafted using lang uage suggesting that an "alternative" argument or claim was being
made. The existence of any such claim is even le ss apparent when the two paragraphs are reviewed
together with the remainder of the section of Norway's FWS addressing [[XXX]] NRCs. In this
regard, we find it telling that in the last paragraph of this section, Norway summarises its claim in the
following terms:
"By including the NRC incurred by [[XXX]] on the closure of four smolt production
facilities, the EC, therefore, violated Articles 2.2 and 2.2.1.1 of the Anti-Dumping
Agreement."171
This paragraph reveals that Norway was concerned with the consistency of the inclusion of [[XXX]]
NRCs in its cost of production with Articles 2.2 and 2.2.1.1. There is no mention of any "alternative"
claim or argument. The same formulation of word s is used in the concluding paragraphs of other
sections of Norway's FWS where it challenges the investigating authority's "inclusion" of the NRCs of

168 Appellate Body Report, Japan – Agricultural Products II, para. 129.
169 Appellate Body Report, US – Gambling, para. 139.
170 Norway, Comments on the Interim Report, para. 40.

two other companies, [[XXX]] and [[XXX]], on the basis of the same legal argument. 172 I t i s
noteworthy that although Norway challenged the investigating authority's allocation of these two
companies' NRCs, it did so in a separate and distinct section of its FWS, 173 where it explained its
claims as follows:
"Norway submits that these costs are non -recurring costs that do not benefit current
or future production. As such, Article 2.2.1.1 does not permit the EC to include them
in the cost of producing salmon during the IP. Accordingly, none of the costs subject
to the three-year averaging approach may be included in the COP.
Additionally, in this section, Norway cha llenges the approach that the EC took to
allocating these costs across time . Assuming that the Panel upholds the primary
claim that the NRC are excluded from the COP, Norway nonetheless requests the
Panel to address this allocation issue as it is an important part of the contested
measure and involves a methodology that could, for example, be used on
implementation."
174
6.20 By contrast, the language that Norway suggests indicates that it made a two-tiered claim in
respect of [[XXX]] NRCs is much less precise and significantly more ambiguous. Given the very
detailed nature of Norway's argumen ts on this (and other matters raised in this dispute), it could be
expected that such an alternative claim, if in fact intended, would have been more clearly expressed.
Indeed, in other parts of Norway's FWS, where it wa nted to make an alternative argument or claim,
Norway explicitly said so.175
6.21 Finally, we note that in responding to Norway 's claim in respect of [[XXX]] NRCs, the EC
did not specifically address the element of allocation as if it were a separate and alternative claim or
argument. In our view, this also supports the reasonableness of the Panel's reading of Norway's
submissions. Thus, for all of these reasons, we decline Norway's request.
6.22 Norway asks the Panel to amend the description of the investigating authority's rationale for
using the three-year averaging allocation methodology in paragraph 7.491 to reflect the fact that, in
the Definitive Regulation and the General Definitive Disclosure Document, the investigating authority
stated that it applied a three-year average because th ree years is the average length of time to grow a
salmon from a smolt to a harvestable salmon . The EC considers that Norway's proposal is "factually

172 For example, "The EC was not entitled to include in [[XXX]] costs of production the company's
losses on its investment operations." Norway, FWS, para. 923; "In sum, the EC has not provided an adequate
and reasoned explanation that supports its inclusion
 of the costs incurred by [[XXX]] ..." Norway, FWS, para.
894. For both companies, as with [[XXX]], Norway's claims were based on the argument that the last sentence
of Article 2.2.1.1 permits the inclusion of NRCs in a co mpany's cost of production solely when they "benefit
future and/or current production".
173 Section XI.C(iv), setting out Norway's claims in respect of the three-year average allocation
methodology.
174 Norway, FWS, paras. 945-946. (Underline added).
175 For example: "Norway claims that the EC violated Article 6.10 by excluding all exporters from the
investigation. In the alternative, assuming that the EC was entitled to exclude all exporters from the sample, the
EC violated Article 6.10 by failing to include two of the largest producers in the sample (Salmar and Bremnes)."
Norway, FWS, para. 296, (underline added); "The EC violated Article 2.2.2 of the Anti-Dumping Agreement,
because it failed to determine [[XXX]] SG&A costs on the basis of actual sales data submitted by the company
and because, in the alternative , it did not use a “reasonable method” to compute [[XXX]] SG&A costs."

defective", noting that the Definitive Disclosure to [[XXX]] describes that NRC were treated "[i]n line
with the 3 year salmon generation approach".
176
6.23 While the EC is correct to point out that th e Definitive Disclosure to [[XXX]] describes that
its NRCs were treated "[i]n line with the 3 year sal mon generation approach", it is also the case that
the Definitive Regulation states that three years was c onsidered to be the "average length of time that
it takes to grow a salmon from a smolt to a harv estable salmon". We have therefore made an
appropriate amendment to the text at what is now paragraph 7.494, taking into account the fact that
the EC has, during these proceedings, admitted that the statement made in the Definitive Regulation
was erroneous.
6.24 Norway asks the Panel to reflect, in the summary of Norway's arguments contained in
paragraph 7.668, the fact that it was unaware of the precise methodology used by the investigating
authority to calculate the MIPs until after the EC response to the Panel Question 130, following the
second substantive meeting of the Panel with the pa rties. The EC comments that any modifications
accepted by the Panel should be limited to Norway 's arguments and should not describe the EC's
actions in regard to the disclosure of the calcu lations. We have modifi ed paragraph 7.668 (now
7.671) in order to more accurately reflects Norway's arguments.
6.25 Norway asks the Panel to amend the summary of its arguments contained in paragraph 7.670
to capture the full range of views it expressed in resp ect of the investigating authority's use of "weight
conversion factors" when determining the MIPs. The EC does not explicitly object to Norway's
proposal, but reminds the Panel that it has not had the opportunity to respond to the assertions made
by Norway in its proposed amendments. We have modified paragraph 7.670 (now 7.673) with a view
to summarizing all arguments that are relevant to the Panel's evaluation of Norway's claims.
6.26 Norway asks the Panel revise paragraph 7.720 so as to address two arguments it alleges it
made in respect of the investigating authority's us e of "weight conversion factors", and thereby find a
violation of Article 9.2. The two arguments Norw ay alleges the Panel has not addressed are: (i) the
argument that the investigating authority "failed to provide a reasoned and adequate explanation for
its MIPs, including identifying which 'weight convers ion factors'"; and (ii) that the "'weight
conversion factors' used by the EC were not 'standard'", and inflated the MIPs. 177 The EC does not
explicitly object to Norway's proposal, but reminds the Panel that it did not have an opportunity to
respond to Norway's assertions.
6.27 We note that Norway's argument that the investigating authority failed to provide a reasoned
and adequate explanation for its MIP calculations is addressed in the context of its claim under
Articles 12.2 and 12.2.2 of the AD Agreement. As regards Norway's second argument, we have now
explicitly addressed Norway's concerns by inserting new paragraph 7.724, and amending
paragraph 7.720 (now 7.725).
6.28 Norway requests that the Panel make certain a dditions to the text of paragraphs 7.779 and
7.796. Norway considers that the text as originally drafted gives the impression that in recalculating
the MIPs, the EC simply reviewed and took into account comments made by interested parties in
response to the definitive disclosure. Norway asserts , however, that after the definitive disclosure of
28 October 2005, and after receiving the parties’ comments on that disclosure on 8 November 2005,
the investigating authority "initiated a new step in th e investigation" by "deepening" the investigation,
referring in this regard to a letter from the inv estigating authority transmitting the recalculated
MIPs.178 Norway considers it important that th e Panel Report fully reflect these "additional

176 EC, Comments on Norway's Comments on the Interim Report.
177 Norway, Comments on the Interim Report, paras. 51-52.
178 Norway, Comments on the Interim Report, para 56, citing, inter alia, Exhibit NOR-19.

investigative steps undertaken by the investigating authority with respect to the MIPs".179 The EC did
not respond to Norway's comments.
6.29 Norway is asking us to include, as a fact, a ch aracterization of the steps the investigating
authority took following the definitive disclosure, a nd which resulted in the changes to the MIPs. It
is true that this characterization is one that the i nvestigating authority itself used in referring to the
actions it took following the definitive disclosur e. However, Norway did not rely upon this
characterization in making its arguments to the Pane l. Although it cited the passage of the letter from
the investigating authority containing the reference to "deepened … investigation" in its first written
submission180 and in its answer to a question from the Panel, 181 and emphasized certain aspects of the
passage in its submission, it did not emphasize this phrase, and did not refer to "deepening" of the
investigation as pertinent in any of its arguments, written or oral. Thus, to include this in the
summary of Norway's argument at paragraph 7.779 would introduce a new element to its arguments at
the Interim Review stage that was not argued as such to the Panel during the course of the
proceedings, which we do not consider to be appropriate.
6.30 With respect to paragraph 7.796, this paragraph forms part of our findings. We did not, in our
analysis, consider the characterization of the acti ons taken by the investigating authority after the
definitive disclosure that resulted in the recalculation of the MIPs in its analysis. The characterization
of those actions is not, in our view, a fact. The actions themselves are accurately described in
paragraph 7.796, which states that the investiga ting authority "verified and cross-checked the
information available, including information provi ded by parties in response to the definitive
disclosure". The characterization of that pro cess of "verify[cation] and cross-check[ing]" as a
"deepened … investigation" was not relevant to our de termination. We therefore decline to make the
requested additions to paragraphs 7.779 and 7.796.
6.31 Norway requests that the Panel reconsider its d ecision not to suggest that the EC repeal the
contested measure, set forth in paragraphs 8.6-8.9 of the interim report. Norway notes that panels
have made suggestions under the second sentence of Article 19.1 in at least 16 cases, including the
recent Mexico – Steel Pipes and Tubes dispute.
182 Norway argues that panels in anti-dumping cases
have exercised their discretion to suggest ways for implementation when two elements existed: there
was a violation of the provisions on initiation, and there were violations of many or various provisions
of the AD Agreement, including provisions on dumping, injury and causation. Norway asserts that
those same circumstances are present in this dis pute – a finding of inconsistency with Article 5.4
based on the wrongly-defined domestic industry, and 20 findings of violation covering all aspects of
the investigation. The EC does not accept the vi ew that the number of violations necessitates
withdrawal of the measure in question. The EC asserts that the WTO operates on the principle that a
Member found to have violated its obligations is free to find whatever means it wishes to bring itself
into compliance. The EC considers this to be a sound principle, as only the Member in question will
know the full range of options available to it unde r domestic law and procedures, and the implications
of various possible means of implementation. The EC points out that it has commenced a review of
the issue of dumping of Norwegian salmon, 183 which investigation will in evitably have consequences
for the measure at issue in this dispute, which illustrates the wisdom of leaving Members free to
decide how they will respond to adverse panel findings.

179 Norway, Comments on the Interim Report, para. 57.
180 Norway, FWS, para. 748.
181 Norway, Answer to Panel Question 71, para. 246.
182 Panel Report, Mexico – Anti-Dumping Duties on Steel Pipes and Tubes from Guatemala ("Mexico –
Steel Pipes and Tubes"), WT/DS331/R, adopted 24 July 2007.
183 Notice of initiation of a partial interim review of the anti-dumping measures applicable to imports of
farmed salmon originating in Norway, Official Journal of the European Union, C88/26, 21 April 2007.

6.32 Pursuant to the second sentence of Article 19.1 of the DSU, a panel is free to suggest ways in
which a Member found to be in violation coul d implement a panel recommendation to bring its
measure into conformity. That discretion applies e qually to allow a panel to decline to make such a
suggestion. There is no guidance in the text of the DSU, or in any other covered agreement,
concerning relevant criteria for the exercise of that discretion in the context of a dispute involving an
anti-dumping measure. The fact that previous panels reviewing anti-dumping measures which
exercised their discretion to make a suggestion on implementation have referenced the circumstances
which informed that exercise of discretion does not m ean that, if those circumstances exist, a different
panel reviewing a different anti-dumping measure must , or even should, exercise its discretion in the
same way. Moreover, while the Appellate Body h as indicated that "it would [be] advisable" for a
panel to articulate the reasons why it declined to make a suggestion, it has made clear that a failure to
do so "does not mean that Panel's exercise of its discretion was improper".
184
6.33 We recognize that withdrawal of the measure is one means by which our recommendation in
this dispute might be implemented. However, we consider that a suggestion to withdraw the measure
would imply that, in our opinion, no other action would be sufficient to comply with the underlying
recommendation, and thus could have significant implications in the event of any subsequent
proceedings under Article 21.5 of the DSU concerni ng the "existence or consistency with a covered
agreement of measures taken to comply with the recommendations". Neither Norway nor the EC has
addressed the question whether any means other than revocation of the measure may be available to
the EC to implement the recommendation in this disput e. Nor do we believe that we are well situated
to assess that question, even if a factual basis for it were presented. As we cannot conclude that
withdrawal of the measure is the only means of im plementation available to the EC to implement the
recommendation in this dispute, a nd we are unwilling to prejudge, or appear to prejudge, the issue
which may arise under Article 21.5 of the DSU, we therefore exercise our discretion to decline to
make any suggestion as to implementation.
B. REVIEW REQUESTED BY THE EC
6.34 The EC requested review of paragraphs 7.11, 7.26, 7.28 7.44, 7.54, 7.57, 7.61, 7.91, 7.92,
7.94, 7.95, 7.96, 7.107, 7.112, 7.113, 7.115, 7.117, 7.119, 7.120, 7.122, 7.123, 7.200, 7.201, 7.202,
7.203, 7.497, 7.499, 7.503, 7.633, 7.643, 7.740 and 8.1(xv), and footnotes 201, 204, 260, 268, 773
(incorrectly referenced as 733) and 919 of the Interim Report.
6.35 In the absence of any objections from Norway, we made changes requested by the EC to
paragraphs 7.11, 7.26, 7.28, 7.44, 7.54, 7.57, 7.91, 7.92, 7.95, 7.96, 7.113 (final sentence), 7.503 (now
7.506), 7.740 (now 7.745) and 7.754 (now 7.759) and footnotes 201 (now 228) and 773 (now 810) of
the interim report, albeit not always in the exact terms proposed by the EC.
6.36 The EC requests that the Panel revise the text of footnote 204 in two respects. Norway did
not object to the first requested change, which we have made to what is now footnote 231.
6.37 With respect to the second requested changed, th e EC argued that the reasoning in prior panel
and Appellate Body decisions indicates that ever ything within "the product" is by definition
comparable (necessary adjustments having been made), and that it is not just within an averaging
group that transactions are "comparable", and therefor e requested that the Panel delete that word.
Norway objected to the EC's request in this respect, asserting that, if the Panel were to delete the word
"comparable" as requested by the EC, this would i ndicate that Norway was correct in arguing that all

184 Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country
Tubular Goods from Argentina – Recourse to Article 21.5 of the DSU by Argentina ("US – Oil Country Tubular
Goods Sunset Reviews (Article 21.5 – Argentina)"), WT/DS268/AB/RW, adopted 11 May 2007, para. 183.

models must be "like" to ensure comparability, and accordingly, asked for additional explanation from
the Panel if it made the requested change.
6.38 We did not make the second requested change, because the text as drafted fully reflects our
understanding of the practice of multiple averaging.
6.39 The EC requests a corresponding change to the fourth sentence of paragraph 7.61, to which
Norway objected for the same reasons as its objection to the requested change to footnote 204.
6.40 We have amended the text of the fourth sentence of paragraph 7.61 to more clearly reflect our
understanding of the practice of multiple averaging, corresponding with the text of footnote 204 (now
231), but have not made the change requested by the EC.
6.41 The EC requests that the Panel make an addition to the text of paragraph 7.94. The EC
argued that the text should make clear that th e production of silent producers was estimated and
included in Community production. Norway objected to this request, pointing out that the referenced
Definitive Regulation does not disclose whether s ilent producers were included in total EC
production, although the EC did explain that they we re during the course of the proceeding. Norway
suggested that if the Panel were to make the requ ested change, it should add a new sentence to clarify
that the inclusion of silent producers in the volume of Community production was explained during
the dispute proceedings, to properly reflect the chronology of the EC's explanation.
6.42 We have not made the requested addition to th e text of paragraph 7.94. Norway is correct
that the inclusion of silent producers is not appa rent on the face of the referenced recitals of the
Definitive Regulation, and that their inclusion w as explained by the EC during the course of the
proceedings. One aspect of Norway's claims was an alleged failure to ade quately explain the volume
of EC production referenced in the Definitive Regulati on. It would in our view be inappropriate to
imply that the Definitive Regulation clearly sets out the inclusion of silent producers.
6.43 The EC requests that the Panel modify the first sentence of paragraph 7.107 to avoid
prejudging the question of whether or not certain activities constitute production of the like product.
Norway objects to the EC proposal, arguing that the sentence summarizes Norway's claims and
arguments, and correctly reflects them. Norway ma de an additional request, to change the phrase
"filleting-only undertakings" in the first sentence to "p roducers of fillets only", or in the alternative to
more fully describe the term to identify the economic activity of these enterprises.
6.44 We do not agree with Norway that the first sentence of this paragraph summarizes Norway's
claims – rather, it is our introduction of the issues we will address in the subsequent paragraphs. We
do agree with the EC that it is better to use term inology that does not imply any prejudgement, and
have therefore amended the text to a more neutral formulation, which we consider more appropriate in
an introductory paragraph. We have not granted Norway's additiona l request to change the reference
to "filleting-only undertakings". As noted, this sentence is not a description of Norway's arguments,
but rather our statement of the issues before us. Moreover, this is the phrase we have used in
discussing the issue, and therefore we consider its use appropriate here. We have, however, added a
new footnote 276 explaining what we mean by the term, for clarification.
6.45 The EC requests a series of changes to the Panel's discussion of the domestic industry issue
that all rest on largely the same argument. Specifically, the EC proposes:
(i) changing the phrase "domestic industry" to " domestic producers" in paragraphs 7.112
(first sentence) and 7.120 (line 12),

(ii) changing the phrase "domestic industry" to "domestic production" in paragraphs
7.115 (second sentence) and 7.120 (first sentence) and in footnote 268,
(iii) changing the term "production" to "econom ic activity" in paragraphs 7.113 (first
sentence) and 7.123 (fourth sentence),
(iv) changing the term "producers of the like pr oduct" in paragraph 7.112 (first sentence)
to "undertakings whose input and output falls within the scope of the like product",
(v) changing the phrase "any enterprise that produ ced any form of the like product" in
paragraph 7.115 (second sentence) to "any enterprise that has as an output and thus, in
the Panel's view, "produced" any form of the like product", and
(vi) adding text to paragraph 7.120 (first sentence).
6.46 The EC stated its understanding that the issu e before the Panel was whether or not it was
impermissible for the European Communities to cons ider that the filleting-only undertakings were not
"producers" of the like product, but rather "industrial users" of whole salmon, and argued that it
excluded filleting-only undertakings from the "domestic producers" as a first step, before determining
what was the "domestic industry". The EC stated its view that "the key finding by the Panel is that
because the output of these undertakings was fillets (that is, something within the scope of the like
product), they were necessarily "producers" of the like product, notwithstanding that their input was
whole salmon (which is already part of the like product).
185 Norway did not comment on all of the
EC's requested changes, but specifically objected to the proposed changes in (i) and (iv) above, and
the proposed changes to paragraphs 7.115 (fi rst sentence) and 7.123 (fourth sentence) and
footnote 268. Norway argued that the proposed changes reformulate Norway's claims, and the Panel's
findings, to a focus on "domestic production" and "domestic producers" rather than on Norway's
claims concerning the proper definition of the "domestic industry".
6.47 Taken as a whole, we consider that the chang es proposed by the EC would recast this section
of our Report from an analysis of what enterprises co mprise the "domestic industry" to an analysis of
what enterprises comprise "domestic production" or "domestic producers". This was neither the focus
of Norway's claim, nor the focus of our analysis and findings. Norway's claim was that the EC
improperly excluded filleting-only undertakings from th e domestic industry. Our analysis focused on
this question. We concluded th at filleting-only enterprises were engaged in production of the like
product, and therefore could not be excluded, as a group or category, from the domestic industry.
6.48 We first addressed the interpretation of Article 4.1 of the AD Agreement, and concluded that
Article 4.1 was properly understood as not allowing the exclusion, as a category or group, of any
enterprises that produced the like product (parag raph 7.112). We went on to address the EC's
argument that filleting-only undertakings did not prod uce the like product, and rejected this argument
as a matter of fact, concluding that the activities enga ged in by filleting-only undertakings constituted
"production" of the like product, based on the ordina ry meaning of the verb "to produce" (paragraph
7.114). We noted that filleted salmon was within the scope of the like product, and concluded that
any enterprise producing any form of the like prod uct should be considered, at least in the first
instance, a producer of the like product, and as such, part of the domestic industry (paragraph 7.115).
6.49 We have not made the changes requested by the EC. The focus of our analysis in this section
of our Report is Article 4.1 of the AD Agreemen t, which defines "domestic industry". The EC's
argument that it excluded filleting-only undertakings from the "domestic producers" as a first step,
before determining what was the "domestic industry" as a second step, is irrelevant to our analysis and

185 EC Comments on Interim Report, para. 20.

conclusions. Whether the error occurred in the first step, or the second step, does not change our
conclusion in this case, that the EC's approach to defining the domestic industry resulted in the
investigation of a domestic industry that did not co mport with the definition in Article 4.1 of the AD
Agreement.
6.50 However, having considering this section of th e Report in light of the comments made by
both parties, and taking into consideration the EC's concerns with the rendering of its arguments, we
have made changes to paragraphs 7.112, 7.113 (including new footnote 284) and 7.114, to avoid
misrepresenting the parties' arguments or giving th e appearance of having pre-judged matters, and to
clarify our reasoning.
6.51 The EC requests that the Panel address, in paragraph 7.119, what the EC refers to as "the one
authoritative statement by the Appellate Body that confirms that a definitional provision does not
impose obligations," 186 referring to the decision of the Appellate Body in US - Zeroing (Japan). 187
The EC asserts that, as part of an objective assessment under Article 11 of the DSU, the Panel must
either agree with this statement and dismiss Norway 's claim, or distinguish it. Norway sees no need
for the Panel to alter its views, noting that the Panel cites extensive relevant case-law, including
Appellate Body reports, that address the same question, in reaching its conclusion.
6.52 We have not granted the EC's request. Contra ry to the view stated by the EC, we do not
consider the Appellate Body's statement in US – Zeroing (Japan) constitutes an "authoritative"
statement that precludes our finding that the EC's approach to defining domestic industry in this case
resulted in an investigation concerning a domestic industry that did not comport with the definition set
forth in Article 4.1. In that decision, the A ppellate Body had already found that the challenged
"zeroing" practice violated Article 2.4.2. It we nt on to decline to address Japan's additional claim
asserting a violation of Article 2.1 and Articles VI:1 and VI:2 of the GATT 1994, stating:
"Article 2.1 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994 are
definitional provisions. They set out a definition of "dumping" for the purposes of
the Anti-Dumping Agreement and the GATT 1994. The definitions in Article 2.1 and
Article VI:1 are no doubt central to the interpretation of other provisions of the
Anti-Dumping Agreement , such as the obligations relating to, inter alia , the
calculation of margins of dumping, volume of dumped imports, and levy of anti-
dumping duties to counteract injurious dumping. But, Article 2.1 and Article VI:1,
read in isolation, do not impose independent obligations."
188
We do not consider that this statement has the significance imputed to it by the EC, and do not
consider that it requires the dismissal of Norway's claim. The Appellate Body was not addressing
Article 4.1 of the AD Agreement, while several panels, cited in paragr aph 7.119, which were
considering that provision reached conclusions similar to ours.
6.53 We did not conclude, in this case, that the EC 's definition of domestic industry violated an
"independent obligation" established in Article 4.1 of the AD Agreement. As we noted in
paragraph 7.118, regardless of whether Article 4.1 itself imposed obligations on Members, we
considered it necessary and appropriate to address Norw ay's claims. As we noted in paragraph 7.117,
whether or not the EC defined the domestic industr y in a manner consistent with the definition in
Article 4.1 could be central to consideration of ot her claims – as indeed, we subsequently found it

186 EC, Comments on Interim Report at para. 23 (footnote omitted).
187 Appellate Body Report, United States – Measures Relating to Zeroing and Sunset Reviews ("US –
Zeroing (Japan)"), WT/DS322/AB/R, adopted 23 January 2007, para. 140.
188 Appellate Body Report, US – Zeroing (Japan), para. 140.

was. To accept the EC's view on this matter would effectively mean that an investigating authority's
definition of the domestic industry in an anti-dumping investigation could not be challenged.
6.54 The EC requests that the Panel reconsider foot note 260. The EC asserts that the Panel found
that the burden of demonstrating that the level of ec onomic activity of an enterprise is so low that it
does not constitute "production" of the like pro duct, a principle with which the EC expresses
agreement, is on the EC. The EC requests reconsid eration of this latter aspect, arguing that to the
contrary, the burden should be on the party maki ng that assertion, in this case Norway. Norway
disagrees with the principle stated in this footno te, and suggests that the Panel delete it, and the
statement on the same principle in paragraph 7.12 0. Norway considers that the footnote raises a
complex interpretive question, not addressed by the investigating authority or the parties, and suggests
it would be best left for consideration in a disput e where it is relevant on the facts and argued by the
parties. In the alternative, Norway asserts that the level of economic activity by filleting-only
undertakings was significant, pointing to information before the investigating authority in support of
its assertion. Finally, Norway disagrees with the EC's view that the burden of demonstrating that the
level of economic activity of an enterprise is so lo w that it does not constitute "production" of the like
product rests with Norway, and asserts that the bur den lies with the investigating authority, which
must make a determination in this regard based on the evidence and provide a reasoned explanation
for it.
6.55 Footnote 260 relates to the statement in the pr evious footnote that whether an enterprise is a
domestic producer is a question of fact, and rec ognizes that there may be circumstances where the
facts justify finding that an enterprise did not "p roduce" the like product, in the sense the Panel used
that term, i.e., bring it into existence. We did not address this factual issue, which was not addressed
in the underlying investigation. In the absence of any consideration by the investigating authority, a
panel would be making a de novo decision were it to address such a factual question in dispute
settlement, which of course it may not do. We consider that the point made in this footnote, while not
necessitated by the facts of this case, is important to a full understanding of our views on the issues
that were before us, and we ther efore have clarified the text of footnote 260 (now 289) to avoid any
implications as to the burden of proof on this issue, should it arise on the facts of another dispute.
6.56 The EC requests that the Panel reconsider the use of the term "subsidiary" in paragraph 7.117,
referring to Norway's claims regarding initiation, in jury and causation, arguing that the Panel should
refer to them as "consequential" claims. The EC argues that the Panel is not entitled to convert
"consequential" claims into "subsidiary" claims, an d that the Panel found, as a matter of fact, that
Norway's claims were "as a consequence", and ca nnot now change that factual finding, set out at
paragraph 7.124, and reitera ted at paragraph 8.1(i). Norway disagrees with the EC's view that its
claims of inconsistency on initiation, injury, a nd causation are merely consequential, arguing that
these claims were independent claims within the Panel's terms of reference.
6.57 In paragraph 7.117, we identified Norway's claims under Articles 5.4, and 3.1, 3.4, and 3.5 as
"subsidiary" claims in view of the fact that Norway presented no independent arguments on those
claims, relying on its principal argument that th e EC wrongly-defined the domestic industry under
Article 4.1. We did not, as the EC asserts, find as a matter of fact that Norway's claims under
Articles 5.4, and 3.1, 3.4, and 3.5 were "as a c onsequence" – rather, we f ound violations of those
claims "as a consequence" of our findings with respect to Norway's principal claim concerning
Article 4.1. There is no inconsis tency between describing claims as subsidiary to a principal claim,
and describing the findings on those subsidiary clai ms as being a consequence of the finding on the
principal claim. We therefore reject the EC's request.
6.58 The EC requests that the Panel reconsider pa ragraph 7.122. The EC argues that it did not
exclude organic producers from either domestic pr oduction or the domestic industry, but only from
the price under-cutting analysis, and that it did not exclude silent producers from domestic production,

including their volume of production on the basis of an estimate, although it did exclude them from
the domestic industry. The EC asserts that there is no basis on which "similar considerations" to those
underlying the Panel's decision regarding filleti ng-only undertakings could apply to these two
categories of producer. The EC suggests that this para graph be deleted, in light of the fact that the
Panel exercised judicial economy with respect to the question of whether the EC was entitled to not
include in the domestic industry, inter alia, producers of organic salmon and silent producers, since
the producers it did include accounted for a major proportion of domestic production of the like
product. Norway objects to the EC request, arguing that this paragraph properly responds to its
claims that the EC wrongly excluded these producers from the domestic industry, albeit the exclusion
of organic producers was in the in jury assessment and not at the tim e of initiation. Norway asserts
that the Panel's exercise of judicial economy has no bearing on the discussion in this paragraph, which
adds clarity for purposes of implementation, and th at to delete it would therefore reduce the EC's
obligations regarding implementation.
6.59 It is clear that the EC did not include silent producers in the domestic industry, and it does
not argue otherwise. As there is no dispute that they produced the like product, the considerations we
outlined regarding filleting-only unde rtakings apply equally to them. With respect to organic
producers, the situation is more difficult to understa nd. However, referring to Exhibit EC-32, it is
clear that at least one domestic enterprise was excl uded from the domestic industry on the basis that
its production was "exclusively organic." Two re lated enterprises apparently were not excluded per
se, but their information not considered in the pri ce undercutting analysis. In its FWS, the EC had
argued, with respect to silent producers, that if they were excluded, but a major proportion of
domestic production is included, Article 4.1 is satisfied.
189 The EC went on to assert that the same
analysis applied with respect to organic salmon. 190 Thus, it seems that the EC did not exclude from
the domestic industry enterprises only a portion of whose production was organic, but did exclude at
least one producer whose production was exclusively or ganic. Norway argued that the exclusion of
organic and silent producers was inconsistent with Article 4.1. As discussed above, whether domestic
producers are excluded from "domestic production" (t he EC's "first step"), or from the domestic
industry (the EC's "second step"), the end result is the same – the domestic industry is wrongly
defined because domestic producers of the like produc t are excluded. Thus, the considerations
regarding filleting-only undertakings apply equally to organic producers. We therefore reject the EC's
request to delete this paragraph.
6.60 The EC requsts that the Panel modify paragra ph 7.200. We understand the EC to be of the
view that the text of paragraph 7.200 could be in terpreted as suggesting that the EC does not accept
that the investigating authority knew of the re lative size of the Norwegian market and of the
proportion of Norway's exports that went to the EC. The EC recalls that it does not contest that the
investigating authority had knowledge of these two facts. However, what it does not accept is that the
investigating authority knew of the destination of Salmar's production, as alleged by Norway.
Norway submits that the EC's objection misses the poi nt and that its arguments do not fully reflect the
Panel's findings. In order to avoid any doubt, we have added one sente nce to paragraph 7.200
reaffirming that the EC does not contest that the i nvestigating authority knew of the relative size of
the Norwegian market and of the proportion of Norway's exports that went to the EC.
6.61 The EC submits that the Panel's evaluation of the investigating authority's decision not to
investigate Salmar fails to report and take account of certain significant elements. In particular, the
EC considers that the Panel's assessment does not report that: (i) the FHL presented the investigating
authority with separate lists of salmon exporters and producers, which classified Salmar as a producer;
(ii) Salmar was absent from the FHL's list of the 15 largest Norwegian exporters; and (iii) Salmar
failed to reply to the investigating authority's second sampling questionnaire. The EC suggests that all

189 EC, FWS, para. 77.
190 EC, FWS, para. 83.

of these facts should be taken into account in ev aluating whether the investigating authority's
exclusion of Salmar was justified. Norway does not object to the EC's suggestion, but requests the
Panel to take into account its own submissions on the relevance of the facts identified by the EC,
should it consider modification of the Interim Report to be appropriate.
6.62 Although we consider that the facts the EC refers to were already noted in the Interim Report,
we have taken the parties' comments into account and decided to more directly address the facts
identified by the EC in the body of our findings rela ting to Salmar. We have therefore made changes
to paragraphs 7.196, 7.201 (now 7.201 and 7.203) and have inserted a new paragraph 7.202.
6.63 The EC asks the Panel to review paragraph 7. 202, stating that it does not understand the
relevance of the discussion contained in this paragr aph to the question of whether Salmar's exclusion
from the investigation could be justified. No rway disagrees with the EC, observing the evidence
discussed therein is highly relevant to the Panel's ta sk. We agree with Norway that the explanation
provided by the investigating authority, in the written communication to the FHL, for not having
selected Salmar for investigation is evidence that is relevant to the Pa nel's assessment of the merits of
Norway's claims. We believe the text of this para graph articulates the Panel's views on this issue with
sufficient clarity, and have therefore left it unchanged.
6.64 The EC asks the Panel to amend the text of paragraph 7.203 because it considers that the
language used in the Interim Report might be interp reted as expressing a view about whether or not
Salmar should be selected for investigation in any fu ture investigation or re -investigation, regardless
of factual circumstances. Norway opposes the EC's requested change because it considers it to be
both unnecessary and ambiguous. We agree with No rway that the EC's proposed change is
unnecessary. We believe the text of this paragra ph articulates the Panel's views on this issue with
sufficient clarity, and have therefore left it unchanged.
6.65 The EC requests the Panel to re-consider the r easoning set out in paragraphs 7.497 and 7.499
relating to the question of whether [[XXX]] reporte d its cost of production on the basis of project
accounting. The EC considers that the Panel's reas oning suggests that it was of the view that because
[[XXX]] stated that the cost extracts from its project accounting system used to calculate the cost of
production reported to the investig ating authority covered two years, and not three, it necessarily
follows that [[XXX]] did not report on a project acc ounting basis. The EC argues that the fact that
[[XXX]] reported costs of production over two year s simply reflects the fact that the period of
investigation straddled two accounting years. Th erefore, it does not necessar ily follow that [[XXX]]
did not report on a (three year) project accounting b asis. Norway states that it is uncertain as to
whether the EC has interpreted the Panel's reasoning correctly. It notes that the key characteristic of
reporting on a project accounting basis is that the cumulative costs incurred during the growth cycle
of salmon generations harvested in the period of inv estigation is reported. In calculating such costs,
the cumulative cost is divided by the total harvested volume.
6.66 The Panel's assessment of whether [[XXX]] re ported costs of production on the basis of
project accounting was guided by the EC's own d escription of what this would involve, namely,
reporting of the "weighted average cost of productio n for all salmon generations that were harvested
during the investigation period".
191 The Panel's reasoning was intended to reflect this understanding
of what it means to report costs of production on the basis of project accounting. In order to avoid
any confusion, we have theref ore amended paragraphs 7.497 (n ow 7.500), 7.499 (now 7.502) and
7.501 (now 7.504) to more accurately reflect the Panel's reasoning.
6.67 The EC also asks the Panel to replace the wo rd "incurred" with the word "booked" in
paragraph 7.499. The EC argues that the word " booked" would more accurately reflect the term used

191 See, para. 7.493 (now 7.496).

in the diagram that is discussed in this paragraph. Norway considers that the words "incurred" and
"booked" are synonymous in this context, but expresses a preference for the use of the word
"incurred". It is true that the word "incurred" is not used in the diagram that is the subject of the
discussion in paragraph 7.499. We have therefore made a change to paragr aph 7.499 (now 7.502) to
reflect the precise content of the relevant diagram. However, in doing so, we note that this change is
not intended to impact or modify the findings set out in this section of the report, as we consider the
words "incurred" and "booked" to be synonymous in this context.
6.68 The EC requests that the Panel delete the fina l sentence of paragraph 7.503 because, in its
view, it raises an example that is irrelevant to the factual circumstances that were before the
investigating authority. In particular, while the example describes a situation requiring the allocation
of NRCs associated with acquiring fixed assets, the EC contends that the NRCs before the
investigating authority were of a different nature. Norway did not comment on the EC's request. As
we understand it, the EC is concerned that the last sentence of paragraph 7.503 could be interpreted as
indicating that the investigating authority treated NR Cs associated with the acquisition of fixed assets
in the manner described in the example during the inv estigation. We recognize that in the absence of
a complete description of each and every NRC that is the subject of Norway's claim, the last sentence
of this paragraph could be per ceived to have the meaning the EC is concerned about. We have
therefore removed the example from paragraph 7.503 (now 7.506).
6.69 The EC requests that the Panel rephrase the firs t sentence of paragraph 7.633 to clarify that
the second error identified in that sentence, tr eating all imports from unexamined producers and
exporters as dumped, was a consequence of the first e rror identified, treatment of imports attributable
to a company for which a de minimis margin was calculated as dumped. The EC also requests a
corresponding change in paragraph 8.1(xv). Norway objects to this request, considering that the Panel
separately relied on the error it had found in the selection of the sample of Norwegian producers and
exporters in making the second finding.
6.70 We did consider the fact that the EC erred in selecting the sample of Norwegian producers
and exporters in finding that the EC erred in treating all imports from unexamined producers and
exporters as dumped. Therefore, that finding w as not solely as a consequence of our findings
regarding Nordlaks, and the text as currently drafted reflects this. We therefore reject the EC's request
regarding paragraph 7.633 and the corresponding request regarding paragraph 8.1(xv).
6.71 The EC requests that the Panel rephrase paragr aph 7.643 (first sentence) to reflect the
different legal bases for Norway's claims regarding price undercutting (Articles 3.1, 3.2, and 3.5) and
price trends (Articles 3.1, 3.4, and 3.5). Norway does not object.
6.72 Paragraph 7.643 does contain incorrect references to the specific Articles alleged and found to
be violated with respect to the EC's analysis of the volume of dumped imports, price undercutting, and
price trends. We have redrafted paragraph 7.643 (now 7.646) to correct these and to set forth a more
detailed summary of the Panel's findings, rather th an the original more summary text, and made
conforming changes in paragraphs 7.633 (now 7.6 36) and 7.642 (now 7.645) to correctly reflect
Norway's claims.
6.73 The EC asks the Panel to amend paragraphs 7. 740 and 7.754 by removing language that it
considers could be interpreted to suggest that the Panel believes that duty collection and assessment
proceedings can be described as the duty collection and assessment phase of an anti-dumping
proceeding. Norway did not comment on the EC's request. The language used in the two paragraphs
was not intended to express a view on the matter raised by the EC. To avoid any possible confusion,
we have therefore modified the text of pa ragraphs 7.740 (now 7.745) and 7.754 (now 7.759)
accordingly.

6.74 The EC requests that the Panel amend footnote 919 to delete the reference to paragraph 7.643.
Norway does have strong views on this request, bu t considers it would be more appropriate to
maintain the reference.
6.75 As redrafted, pursuant to our decision in pa ragraph 6.72 above, para graph 7.643 (now 7.646)
summarizes the Panel's findings on Norway's claims regarding the volume of dumped imports, price
undercutting, and price trends. Therefore, the reference to that paragraph in footnote 919 (now 960) is
correct, and we therefore have made no change.
6.76 The EC requests that the Panel separate paragr aph 8.1(xv) into three separate paragraphs
setting out the Panel's conclusions on Norway's claims regarding the volume of dumped imports, price
undercutting, and price trends, as well as incorporati ng other changes requested separately. Norway
does not object.
6.77 There are no strict rules concerning the form of the Panel's conclusions, and therefore we
have modified paragraph 8.1(xv) to separately reflect our findings on Norway's claims regarding the
volume of dumped imports, price undercutting, and pr ice trends in paragraphs 8.1(xvi), (xvii) and
(xviii), but without the additional change we have rejected in paragraph 6.75 above.
VII. FINDINGS
A. I
NTRODUCTION
7.1 This dispute concerns the anti-dumping i nvestigation of, and definitive anti-dumping
measures imposed on, imports of farmed salmon fro m Norway. The investigation was initiated on
23 October 2004 on the basis of a complaint lodged by the EU Salmon Producers' Group. The
investigation of dumping and injury covered th e period from 1 October 2003 to 30 September 2004,
and data for the period from 1 January 2001 to 30 September 2004 was analyzed with respect to
trends relevant for the injury assessment. The pr oduct concerned was defined as "farmed (other than
wild) salmon, whether or not filleted, fresh, chille d or frozen. The definition excludes other similar
farmed fish products such as large (salmon) tr out, biomass (live salmon) as well as wild salmon and
further processed types such as smoked salmon".
192
7.2 The Commission, the investigating authority in the EC, made preliminary determinations of
dumping for ten Norwegian exporting producers and mate rial injury to the EC industry producing the
like product caused by dumped imports. Provisional anti-dumping measures, in the form of ad
valorem duties based on a non-injurious price were imposed on imports of farmed salmon from
Norway on 22 April 2005. 193 These measures were modified by an amendment dated 30 June 2005,
which replaced the ad valorem duties with minimum import prices ("MIPs") for five presentations of
farmed salmon. 194 Following affirmative determinations of dumping, injury and causal link,
definitive anti-dumping measures were imposed on 17 January 2006. The definitive measures took
the form of a system of MIPs and fixed duties, both calculated based on non-injurious prices, for six
presentations of farmed salmon.195
7.3 On 17 March 2006, Norway requested consultati ons with the European Communities ("EC")
with respect to the Definitive Regulation. Norw ay requested the establishment of this panel on

192 Provisional Regulation, para. 10.
194 Commission Regulation (EC) No. 1010/2005 of 1 July 2005 (Official Journal, L170/32, published
1 July 2005), amending Provisional Regulation, Exhibit NOR-10, para. 7 and Article 1.
195 Definitive Regulation, paras. 128, 129, 136, and Article 1.

29 May 2006.196 Norway challenges the WTO-consistency of several aspects of the investigation and
Definitive Regulation, in particular: (i) the identifi cation of the product under consideration; (ii) the
definition of the domestic industry; (iii) the calculation of the margin of dumping (including certain
adjustments made to the cost of production when calculating constructed normal value); (iv) the
findings of injury and causation; (v) the remedi es imposed on dumped imports; and (vi) certain
procedural aspects of the investigation.
B. R
ELEVANT PRINCIPLES REGARDING STANDARD OF REVIEW, TREATY INTERPRETATION AND
BURDEN OF PROOF
1. Standard of Review
7.4 Article 11 of the DSU provides the standard of re view for WTO panels in general. Article 11
requires panels to make an objective assessment of both the factual and the legal aspects of the case.
7.5 Article 17.6 of the AD Agreement sets forth a special standard of review that applies
specifically to panel proceedings dealing with th e application of this agreement. Article 17.6
provides:
"(i) in its assessment of the facts of the matter, the panel shall determine whether
the authorities' establishment of the facts was proper and whether their evaluation of
those facts was unbiased and objective. If the establishment of the facts was proper
and the evaluation was unbiased and objectiv e, even though the panel might have
reached a different conclusion, the evaluation shall not be overturned;
(ii) the panel shall interpret the rele vant provisions of the Agreement in
accordance with customary rules of interpreta tion of public international law. Where
the panel finds that a relevant provision of the Agreement admits of more than one
permissible interpretation, the panel sha ll find the authorities' measure to be in
conformity with the Agreement if it rests upon one of those permissible
interpretations."
7.6 Taken together, Article 11 of the DSU and Ar ticle 17.6 of the AD Agreement establish the
standard of review we must apply with respect to both the factual and the legal aspects of the present
dispute. Thus, we may find the challenged anti-du mping determination to be consistent with the
WTO Agreements if we find that the EC investig ating authorities established the facts properly and
evaluated them in an unbiased and objective manner, and that the determinations in question were
based on a permissible interpretation of the releva nt treaty provisions. In our assessment of the
matter, we must limit our review to the "facts made available in conformity with appropriate domestic
procedures to the authorities of the importing Memb er", in accordance with Article 17.5(ii) of the
AD Agreement. We may not undertake a de novo review of the evidence before the investigating
authority during the proceeding, and may not substitute our judgement for that of the EC investigating
authorities even though we might have made a di fferent determination we re we examining the
evidence that was before the investigating authority ourselves.
7.7 Recently, the Appellate Body clarified a panel's standard of review of the facts pursuant to the
above provisions in the following terms:
"It is well established that a panel must neither conduct a de novo review nor simply
defer to the conclusions of the national au thority. A panel's examination of those
conclusions must be critical and searching, and be based on the information contained

196 WT/DS337/2.

in the record and the explanations given by the authority in its published report. A
panel must examine whether, in the li ght of the evidence on the record, the
conclusions reached by the investigating au thority are reasoned and adequate. What
is 'adequate' will inevitably depend on the f acts and circumstances of the case and the
particular claims made, but several general lines of inquiry are likely to be relevant.
The panel's scrutiny should test whether the reasoning of the authority is coherent and
internally consistent. The panel must unde rtake an in-depth examination of whether
the explanations given disclose how the inv estigating authority treated the facts and
evidence in the record and whether there was positive ev idence before it to support
the inferences made and conclusions reached by it. The panel must examine whether
the explanations provided demonstrate that the investigating authority took proper
account of the complexities of the data before it, and that it explained why it rejected
or discounted alternative explanations and in terpretations of the record evidence. A
panel must be open to the possibility that th e explanations given by the authority are
not reasoned or adequate in the light of ot her plausible alternative explanations, and
must take care not to assume itself the role of initial trier of facts, nor to be passive by
'simply accept[ing] the conclusions of the competent authorities.'"
197 (Footnote
omitted.)
2. Relevant Principles of Treaty Interpretation
7.8 With respect to the question of legal interpre tation, Article 3.2 of the DSU provides that
Members recognise that the dispute settlement system serves to clarify the provisions of the covered
agreements "in accordance with customary rules of interpretation of publi c international law".
Article 31.1 of the Vienna Convention on th e Law of Treaties ('Vienna Convention')", 198 which is
generally accepted as such a customary rule, provides:
"A treaty shall be interpreted in good faith in accordance with the ordinary meaning
to be given to the terms of the treaty in their context and in the light of its object and
purpose."
7.9 There is a considerable body of WTO case la w dealing with the application of these
provisions on treaty interpretation in dispute settlement in the WTO. It is clear that interpretation
must be based above all on the text of the treaty, 199 but that the context of the treaty also plays a role.
It is also well-established that these principles of interpretation "neither require nor condone the
imputation into a treaty of words that are not there or the importation into a treaty of concepts that
were not intended." 200 Furthermore, panels "must be guided by the rules of treaty interpretation set
out in the Vienna Convention, and must not add to or diminish rights and obligations provided in the
WTO Agreement."201
7.10 In the context of WTO disputes under the AD Ag reement, the Appellate Body has made it
clear that:

197 Appellate Body Report, United States – Investigation of the International Trade Commission in
Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada ("US – Softwood Lumber VI
(Article 21.5 – Canada) "), WT/DS277/AB/RW, adopted 9 May 2006, para. 93.
198 (1969) 8 International Legal Materials 679.
199 Appellate Body Report, Japan – Taxes on Alcoholic Beverages ("Japan – Alcoholic Beverages II "),
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, 97, p. 11.
200 Appellate Body Report, India – Patent Protection for Pharmaceutical and Agricultural Chemical
Products ("India – Patents (US) "), WT/DS50/AB/R, adopted 16 January 1998, DSR 1998:I, 9, para. 45.
201 Appellate Body Report, India – Patents (US) , para. 46.

"The first sentence of Article 17.6(ii), echoing closely Article 3.2 of the DSU, states
that panels 'shall' interpret the provisions of the Anti-Dumping Agreement 'in
accordance with customary rul es of interpretation of public international law.' Such
customary rules are embodied in Articles 31 and 32 of the Vienna Convention on the
Law of Treaties (' Vienna Convention '). Clearly, this aspect of Article 17.6(ii)
involves no 'conflict' with the DSU but, rather, confirms that the usual rules of treaty
interpretation under the DSU also apply to the Anti-Dumping Agreement. …
The second sentence of Article 17.6(ii) … presupposes that application of the rules
of treaty interpretation in Articles 31 and 32 of the Vienna Convention could give
rise to, at least, two interpretations of some provisions of the Anti-Dumping
Agreement, which, under that Convention, would both be ' permissible
interpretations'. In that event, a measure is deemed to be in conformity with the Anti-
Dumping Agreement 'if it rests upon one of those permissible interpretations.'"202
7.11 Thus, it is clear that under the AD Agreement, we are to follow the same rules of treaty
interpretation as a panel in any other dispute. The di fference is that if, after following those rules, we
find more than one permissible interpretation of a provision of the AD Agreement, we may uphold a
measure that rests on one of those interpretations.
3. Burden of Proof
7.12 While the parties have not raised burden of pr oof as an issue, we have kept in mind the
general principles applicable to burden of proof in WTO dispute settlement, which require that a party
claiming a violation of a provision of a WTO Agreement by another Member must assert and prove
its claim.203 In this dispute, Norway, which has cha llenged the consistency of the EC's anti-dumping
measure, thus bears the burden of demonstrating that the EC's determination is not consistent with the
relevant provisions of the releva nt Agreements. It is generally for each party asserting a fact to
provide proof thereof. 204 Therefore, it is also for the EC to provide evidence for the facts which it
asserts. We have also kept in mind that a prima facie case is one which, in the absence of effective
refutation by the other party, requires a panel, as a matter of law, to rule in favour of the party
presenting the prima facie case.
C. ALLEGED INCONSISTENCY OF THE EC 'S DETERMINATION OF THE "PRODUCT UNDER
CONSIDERATION" WITH ARTICLES 2.1 AND 2.6 OF THE AD AGREEMENT
1. Arguments of the Parties
(a) Norway
7.13 Norway claims that the EC's determinati on of the "product under consideration" was
inconsistent with Articles 2.1 and 2.6 of the AD Agreement, and that as a consequence, the EC
initiated the investigation, and de termined the existence of dumping and injury, on the basis of a
flawed determination of the pr oduct under consideration, resulting in consequent violations of
Articles 2.1, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 5.1 and 5.4 of the AD Agreement.

202 Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel
Products from Japan ("US – Hot-Rolled Steel") , WT/DS184/AB/R, adopted 23 August 2001, DSR 2001:X,
4697, paras. 57 & 59.
203 Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and
Blouses from India ("US – Wool Shirts and Blouses") , WT/DS33/AB/R and Corr. 1, adopted 23 May 1997,
DSR 1997:I, 323, p. 337.
204 US – Wool Shirts and Blouses, p. 337.

7.14 Norway argues that the text of Article VI:1 of the GATT 1994 indicates that dumping occurs
when the export price of a product is lower than the normal value of the "very same product".
Norway notes that Article 2.1 of the AD Agr eement likewise defines dumping in terms of a
comparison between the prices of the export product ( i.e., the "product under consideration") and the
"like product". Norway recalls that Article 2.6 defines the "like product" as a product that is
"identical" or has "characteristics closely resembli ng" those of the "product under consideration".
Accordingly, Norway argues that the pricing co mparison necessary to establish the existence of
dumping must be made between "identical" products or products that have "closely resembling"
characteristics.
7.15 Norway contends that this obligation implies that where an authority wishes to group multiple
products together in a single investigation, any gi ven product forming part of "like product" must be
"like" each and every product forming part of the product under consideration. In this regard, Norway
argues that the assessment of the conditions of whether likeness exists between the product under
consideration and the allegedly "like product" must be made for each product "as a whole", and not
just for individual sub-product categories.
 Norway asserts that this view is in consonance with that
expressed by the Appellate Body in US – Softwood Lumber V, which Norway contends confirms that
a product must always be treated "as a whole" throughout an anti-dumping investigation.205
7.16 Norway has diagrammed what it describes as the "vectors" of likeness that must be respected
under Article 2.6.206

Norway contends that because the assessment of th e "like product" under Article 2.6 must be made in
respect of the product under consideration "as a whole", all sub-product categories making up the
product under consideration must be matched with (i.e., be "like") all sub-product categories making
up the "like product". In the above example provided by Norway, the product under consideration
and the "like product" are each made up of the same two categories of products – whole/HOG fish and
fish fillets. According to Norway, the oblig ation to make an assessment of "likeness" under
Article 2.6 in terms of the product "as a whole" me ans that the whole/HOG fish forming part of the
"like product" must be "like" both the whole/HOG fish and the fish fillets making up the product
under consideration. Similarly, fish fillets forming part of the "like product" must be "like" both the
whole/HOG fish and the fish fillets making up the product under consideration.

205 Norway, First Written Submission, (hereinafter "Norway, FWS"), paras. 88-89.
206 Norway, FWS, para. 89.
Whole/HOG fish Whole/HOG fish
Filleted ProductsFilleted Products
Like
Product
Product under
consideration
SINGLE
DETERMINATION

7.17 Finally, Norway argues that "a logical consequence" of the "horizontal" and "diagonal"
"vectors" of likeness is that each of the sub- product categories making up the product under
consideration (and the "like product") must also be "like" each other – i.e., the whole/HOG fish
forming part of the product under consideration must be "like" the fish fillets that are also part of the
product under consideration.
7.18 Norway presents a number of contextual arguments in support of its pos ition. First, Norway
argues that the first method of comparison set out in Article 2.4.2 (weighted average normal value to
weighted average export price) confirms that a ll products under investigation must be alike. 207
Norway contends that the language in Article 2. 4.2 envisages "a" single comparison between a single
normal value and a single export price for the product as a whole, implying that investigating
authorities are not entitled to define the product under consideration to include different products.
Norway recognises that the product under considera tion and the "like product" may be sub-divided
into different models for the purpose of comparison, however, it argues that ev en in this event, the
different models making up the product under consider ation must all be sub-categories of a group of
products that meet the definition of likeness. No rway cites the following passage of the Appellate
Body Report in EC – Bed Linen in support of this contention:
"Having defined the product at issue and the 'like product' on the Community market
as it did, the European Communities could not, at a subsequent stage of the
proceeding, take the position that some typ es or models of that product had physical
characteristics that were so different from each other that these types or models were
not 'comparable'. All types or models falli ng within the scope of a 'like' product must
necessarily be 'comparable', and export tran sactions involving those types or models
must therefore be considered 'comparable export transactions' within the meaning of
Article 2.4.2."
208
7.19 The second contextual argument made by Norway relates to the obligation on investigating
authorities under Article 3.6 of the AD Agreement to focus their injury an alysis, to the extent
possible, on the production resources directly engaged in the making of the "like product". 209 Norway
contends that this obligation implies that different products made in different industries using different
production processes cannot be combined into a si ngle product for the purpose of determining
injury.210 According to Norway, the result of any such combination would be a distorted injury
determination because it would amount to an investiga tion into the health of two or more different
industries - a result contrary to the object and pur pose of the AD Agreement, which Norway submits
is to permit the imposition of duties solely when they are justified to afford protection to a domestic
industry.
7.20 Finally, Norway submits that its interpreta tion of the AD Agreement in this respect is
consistent with the practice of the United States' investigating authorities (USDOC and USITC).
7.21 Norway notes that the EC combined into a si ngle product under consideration whole salmon,
HOG salmon and processed filleted salmon products. Norway argues that neither the facts on the
record of the investigation, nor the EC's ow n explanation for this choice of product under

207 Norway, FWS, paras. 99-102.
208 Appellate Body Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type
Bed Linen from India ("EC – Bed Linen") , WT/DS141/AB/R, adopted 12 March 2001, DSR 2001:V, 2049,
para. 58.
209 Norway, FWS, paras. 103-117.
210 Norway also cites two GATT 1947 dispute settlement cases and one Appellate Body Report to
support its view that differences in production processes will typically imply different products.

consideration, supports the conc lusion that all of these different product types are "like products"
within the meaning of Article 2.6.
7.22 Although Norway agrees with the criteria adopted by the EC to determine the product under
consideration, it argues that the EC wholly failed to demonstrate that the facts in the record supported
its conclusion in respect of the criteria. Norw ay contends that the "EC's entire three sentence
'explanation' of the product determination does not refer to a single fact in support of that
determination".
211 Moreover, according to Norway, the f acts on the record of the investigation
showed that there were important differences in th e physical characteristics, substitutability, end-uses
and tariff classifications of the salmon products at issue, as well as the processes used in their
production. Norway devotes several pages of its first written submission to explaining exactly what
these facts were and how they were not properly taken into account by the EC.
(b) European Communities
7.23 The EC begins its argument by observing that Article 2.6 of the Anti-Dumping Agreement
does not, in itself, impose any obligation on the EC or any other WTO Member. It merely contains a
definition. Therefore, the EC considers that it ca nnot be found to have acted inconsistently with
Article 2.6, since it contains no obligation at all.212
7.24 The EC goes on to argue that Article 2.1 contains no obligations regarding the selection of the
product under consideration (which the EC refers to as the "product concerned"). This provision, in
the EC's view, establishes obligations concerning the determination of dumping and calculation of
dumping margins, during a later stage of the proceed ing, and does not relate to question of selection
of the product under consideration, which happens at the very beginning, at all. 213 Moreover, the EC
argues that even reading Articles 2.1 and 2.6 together, no obligation concerning the selection of the
product under consideration exists. Thus, the EC considers that No rway's claims under Articles 2.1
and 2.6, as well as consequential claims under Articles 3.1, 3.2, 3.4, 3.5, and 3.5, are without merit.
7.25 The EC argues that there is distinction between the product under consideration, and the like
product as defined in Article 2.6 of the AD Agreem ent. The product under consideration is the
product exported, while the like product is either the good produced in the country of export, in this
case Norway, (in the context of the dumping calcu lation); or the good produced in the country of
import, in this case the EC (in the context of th e injury determination). The EC notes that this
distinction is apparent from Article VI:1 of the GA TT 1994, which refers three times in its first two
sentences to the product; and then, in sub-paragraphs (a) and (b) to the term "like product", and is
maintained in the AD Agreement.
7.26 The EC considers non-controversial the view th at the concept of the product concerned may
be an abstract category that can encompass hundreds or thousands of individual instances of export of
a good.214 The EC considers that Norway's view, that each instance of the goods within the category
of the exported "product concerned" must be "ident ical, i.e. alike in all r espects" within the meaning
of Article 2.6 of the Anti-Dumping Agreement, is legally erroneous. The EC argues that Norway's
argument imports concepts concerning the lik e product into the concept of product under
consideration without legal basis, as Article 2.6 does not concern the product under consideration,
citing in support the Panel Report in Korea – Paper:

211 Norway, FWS, para. 163.
212 European Communities, First Written Submission, (hereinafter "EC, FWS"), paras. 17-18.
213 EC, FWS, paras. 19-20.
214 EC, FWS, para. 29.

"Indonesia argues that the KTC had to determine that PPC and WF were like
products. We note that these two, together, constituted "the product under
consideration" in the investigation at issue. We see no basis in Article 2.6 for the
proposition that the like product definition also applies to the definition of "the
product under consideration". We are aware of no provision in Article 2.6, or any
other Article in the Agreement, that c ontains a definition of "the product under
consideration" itself.
242
Article 2.6, have special significance in the AD Agreement, and that Members took care to define like
product, but did not take the trouble to define produc t under consideration. Thus, the use of the term
"like product" must be understood as defined in Ar ticle 2.6 in each instance where it is used. The
concept of "product under consideration" is referre d to in several parts of the AD Agreement, but
always using some terminology other than "like pro duct" – for instance, Article 2.1, first sentence,
uses the different term "a product" to refer to the product concerned, which is to be compared with the
"like product", referred to in the very same sentenc e. To the EC, this makes it clear that the two
concepts are different, and that Norway errs in importing notions of "like product" as defined in
Article 2.6 into the reference in Article 2.1 to "a product".
7.28 For the EC, Article 2.6 is simply irrelevant to the question of what is the product under
consideration. Moreover, the EC asserts that Norw ay's position ignores that Article 2.6 provides for a
comparison of products, in assessing likeness. Howe ver, at the stage of a proceeding where the
product under consideration is at issue, there has not yet been a product identified which can serve as
a point of comparison. Thus, for the EC, it is clear that Article 2.6 does not speak to the selection of
the product under consideration, but to a later st age of the process at which a "like product" is
identified by comparison to a previously selected product under consideration.
7.29 The EC also maintains that Article 2.4 of the AD Agreement undermines Norway's position.
The EC points out that Article 2.4 relates to the question of comparison of export price and normal
value, and provides that due allowance must be made for difference in physical characteristics. For
the EC, this demonstrates that there is no obliga tion for identity of products either within the product
under consideration, or between the product under c onsideration and the like product, since if there
were such an obligation, there would never be a need for adjustments for differences in physical
characteristics. Such an interpretation would re nder this element of Article 2.4 meaningless and
redundant, and is therefore not proper.
216 Moreover, the EC notes that even Norway admits that there
may be multiple models or sub-categories of th e product under consideration in the context of
comparison of normal value and export price, 217 which undermines Norway's arguments concerning
an obligation of identity within the product under consideration.218

215 Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper from Indonesia ("Korea –
Certain Paper"), WT/DS312/R, adopted 28 November 2005, para. 7.221
216 EC, FWS, para. 32.
218 The EC also points to Article 6.10, which refers to a large number of "types of products" covered
by a single investigation as a justification for use of samp ling, as context in support of its position. EC, FWS,
para. 33.

7.30 The EC considers that while it is true that anyt hing that is part of the product concerned must
be "comparable", after making due adjustments for differences in physical characteristics affecting
price comparability if necessary, and that anything that is defined as part of a "like product", as that
term is used in Article 2.6 of the Anti-Dumping Agreement, must necessarily be comparable, that says
nothing about the selection of the product under cons ideration itself. For the EC, it simply does not
follow from these obligations to co mpare that each instance of goods within the category of the
product concerned must necessarily be "identical, i.e. alike in all respects" within the meaning of
Article 2.6.
7.31 The EC also asserts that there is nothing in the object and purpose of the Anti-Dumping
Agreement, which has no preamble, which can override the textual and contextual considerations it
relies on in support of its position. Indeed, the EC considers that, insofar as the Anti-Dumping
Agreement addresses unfair international price discr imination, the object and purpose of the Anti-
Dumping Agreement would support the view that th e "like product" requirement in Article 2.6 is
central to ensuring that such discrimination has actually been identified: the same product category
being priced differently in the exporting and im porting countries. However, for the EC, this says
nothing about how the product under consideration itself should be se lected, and in the EC's view,
there is no reason why the AD Agreement should establish restraints in that regard.
7.32 For the EC, the AD Agreement foresees consider able latitude in the selection of the product
under consideration, allowing the investigatin g authorities to focus on international price
discrimination, without being required to initiate multiple investigations in cases where multiple
models or sub-products are allege dly being dumped. In this regard, the EC notes that there is no
provision of the AD Agreement which imposes an obligation to "determine", "evaluate",
"demonstrate", "establish", "find", etc. with respect to the product under consideration. The absence
of such terms with respect to the selection of th e product under consideration cannot be construed as
accidental, but must be taken to indicate an inte ntion on the part of Members that investigating
authorities should have a particular latitude in that respect. The EC also points to Article 5.2(ii) of the
AD Agreement, which requires the applicant for an anti-dumping investigation to describe the
allegedly dumped product, but does not impose a ny obligations on the investigating authorities
regarding the selection of the product under consideration.
7.33 With respect to the facts of this case, the EC argues that it described the product under
consideration in terms of physical characteristics, thus excluding trout and live salmon (biomass),
production processes, thus excluding wild salmon, and focused on the product under consideration
described as farmed salmon, presented in a number of forms, including whole fish, gutted head-on,
gutted head-off, fresh, chilled or frozen. The EC points out that Norway has no objections to the
exclusion of trout and biomass, or the inclusion in the product under consideration of whole fish and
"gutted head-on" fish. The EC also notes that No rway does not object to the inclusion of farmed
salmon in other forms, including "gutted head-off", and the inclusion of th ese in fresh, chilled, or
frozen states. The EC thus maintain s that there are at least nine sub-categories that Norway considers
are properly within the product under consideration. Norway does, however, object to the inclusion
of fillets (skin on or off, fresh, chilled, or frozen, of any weight) in the product under consideration, on
the basis that these categories constitute a single product which must be considered separately from
whole fish categories, thus obliging the EC to in itiate two separate investig ations. The EC asserts
that, according to Norway, in one of these, the EC was obliged to select as the product concerned the
first nine (plus) sub-categories of whole fish described above, and in the second the EC was obliged to
select as the product concerned the second nine sub- categories of fillets described above. The EC
maintains that Norway has failed to demonstrate that the Anti-Dumping Agreement imposes any such
obligation on the EC. Article 2.6 is irrelevant to the selection of the product concerned; and
Article 2.1 does not impose any obligations on the in vestigating authority concerning the selection of
the product concerned. This is not a case in wh ich different goods or products (perhaps such as
salmon and trout) have been grouped together. No r is it a case in which, out of a large number of

contiguous models or types of a product, a few non-contiguous models or types have been selected as
together constituting the product concerned. Rather , the product concerned has been selected in a
straightforward, simple and non-contentious manner: farmed salmon, however presented.
7.34 Finally, the EC argues that even if the Panel we re to consider that there must be internal
likeness in the product under consideration, that cr iterion would be met in this case, as the product
concerned is not salmon "fish", but "farmed salmon" , essentially, the flesh of the fish, in whatever
form it is presented for export, whether or not it is cut up into small or large pieces, and whether or
not it has attached to it skin, head, tail, fins, bone or guts.219
7.35 The EC points out that there were poten tially hundreds of different "models" or
"presentations" of farmed salmon, and that the re levant question is where the parameters of the
product under consideration can reas onably be drawn. The investigating authority in this case took
the view that the transformation from a head-off gutted fish to large skin-on fillets was not so great as
to render separate anti-dumping proceedings essential, while further processing, such as smoking, was
a different matter. For the EC, while opinions may differ as to this decision, Norway has failed to
demonstrate that it was inconsistent with Article 2.1 of the AD Agreement.
2. Arguments of the Third Parties
(a) Korea
7.36 Korea shares Norway's views concerning the importance of the determination of product
under consideration" in an anti-dumping investigatio n, including Norway's position that an erroneous
"product under consideration" de termination will entail violation of various provisions of the
AD Agreement, inter alia , Articles 2.1, 2.6, 3.1, 3.2, 3.4, 3.5, 5.1, and 5.4. Korea argues that
Articles 2.1 and 2.6 of the AD Agreement establish a standard for product under consideration which
together require an investigating authority to ensu re that different products considered in an anti-
dumping investigation are all "like" in all relevant respects.
7.37 In Korea's view, in this case th e EC simply ignored widely different characteristics of various
salmon products sold in the EC market. Korea cons iders that the EC failed to explain how and with
what factual evidence it examined the four crite ria on which it based its selection of product under
consideration. Korea believes that the EC determin ation that six separate products constitute a single
product under consideration cannot be sustained and constitutes violation of Articles 2.1 and 2.6 of
the AD Agreement. Moreover, Korea considers that the determination may have helped the EC find
an anti-dumping margin in the investigation, but does not reflect the reality in the EC salmon market.
For instance, whole/HOG fish products are not identical to filleted products; nor do they closely
resemble filleted products. In fact, Korea does not be lieve that there is any basis for combining them
in a single anti-dumping investigation. If the EC had wanted to conduct anti-dumping investigations
into these products, it should have conducted two separate investigations, as Korea asserts the US
Department of Commerce has done in similar situations.
7.38 Korea also notes that the EC's determination in this regard sets up an inconsistency with the
EC's domestic industry determina tion, by including fillets in th e product under consideration, but
excluding EC producers of filleted product from the determination on domestic industry.

219 EC, FWS, paras. 53-54.

(b) United States
7.39 The United States considers that Norway's ar gument concerning product under consideration
rests upon an incorrect reading of Article 2.6. In the US view, Norway's argument implies obligations
that cannot be found in the text of the AD Agreement.
7.40 The US notes that Article 2.6 contains a definition of the like product ( i.e., the product to
which the product under consideration is compared), not obligations with respect to the product under
consideration. Moreover, the US argues that th e general statement in Article 2.1 regarding the
comparison between the product under considerati on and the like product does not provide guidance
on how the product under considerat ion is to be defined. Thus, these provisions leave to the
investigating authority's discretion how a product under consideration is to be established. Therefore,
no inconsistency with either provi sion would arise based on the approach an investigating authority
selects.
7.41 The US notes that previous Panels have reached the same conclusion, citing in this regard US
– Softwood Lumber V , where the Panel rejected Canada's claim that Article 2.6 requires "that there
must be 'likeness' within both the product under co nsideration and within the like product," stating
that:
"As the definition of 'like product' imp lies a comparison with another product it
seems clear to us that the starting point can only be the 'other product', being the
allegedly dumped product. Therefore, once the product under consideration is
defined, the 'like product' to the product unde r consideration has to be determined on
the basis of Article 2.6. However, in our analysis of the AD Agreement, we could not
find any guidance on the way in which the 'product under consideration' should be
determined. . . . It is not our role as a pa nel to create obligations which cannot clearly
be found in the AD Agreement itself."
220
7.42 The US considers that Norway's reliance on determinations of the US Department of
Commerce ("Commerce") and the US Internationa l Trade Commission ("USITC") in anti-dumping
investigations of antifriction bearings and magnesi um to support its argument that an investigating
authority must establish that products are like or "closely resembling" one another in order to consider
them collectively the product under consideration is misplaced. The US notes that a complaining
party must demonstrate the existence of an ob ligation in the text of the AD Agreement: an
investigating authority's practice with regard to the examination of product coverage in an
investigation does not lead to the conclusion that such practice is required by the AD Agreement. To
the extent they are relevant at all, the investig ations cited by Norway simply demonstrate that
Commerce and the USITC define the "product under consideration" on a case-by-case basis, taking
into consideration the particular facts available to them, including the product coverage proposed by
the petitioning domestic parties. Moreover, the US notes that the US authorities apply US statutes
and regulations, as well as legal principles devel oped by US domestic courts interpreting these
statutes and regulations, and thus their determ inations do not support the claim that the
AD Agreement contains rules for defining the "product under consideration."221

220 Panel Report, United States – Final Dumping Determination on Softwood Lumber from Canada
("US – Softwood Lumber V "), WT/DS264/R, adopted 31 August 2004, as modified by Appellate Body Report,
WT/DS264/AB/R, DSR 2004:V, 1937, paras. 7.153, 7.156-7.158; the US also points to Korea – Certain Paper,
also relied upon by the EC.
221 The United States does not express a view as to whether the EC's explanation adequately addressed
the facts on the record in this case. However, the US asserts that to the extent the EC did not, such action would
properly be analyzed under AD Agreement Article 12, with due regard for the standard of review set forth in
Article 17.6(i), but would not support a claim under Article 2.1 and 2.6.

3. Evaluation by the Panel
7.43 In considering Norway's claims c oncerning product under consideration, 222 we begin by
observing that there is no specific provision in the AD Agreement concerning the selection,
description, or determination, of a product under co nsideration. While Norway relies on Articles 2.1
and 2.6 in conjunction, it does not contend that the text of these provisions directly addresses the
question. Thus, Norway has constructed an argument in support of its claim that is based largely on
contextual considerations.

7.44 In essence, Norway's claims under Articles 2.1 and 2.6 of the AD Agreement are premised on
two contentions: First, that these provisions estab lish an obligation on investigating authorities to
ensure that where the goods bein g investigated comprise groups or categories of goods, all such
groups or categories must individually be "like" each other, thereby constituting a single homogenous
"product under consideration"; 223 and second, that the facts that were before the investigating
authority during the investigation in dispute show that the "product under consideration" investigated
by the EC was made up of a broad range of go ods that do not constitute a single homogenous
"product" because they were not all "like" each other.224
7.45 According to Norway, the obligation to ensure that all categories making up the product under
consideration are "like" each other follows "as a logical consequence" from what it argues is a
requirement under Articles 2.1 and 2.6 for invest igating authorities to ensure that any product
category making up the "like product" must be individually "like" each and every separate product
category making up the product under consideration. Thus, a threshold question for us is whether
Norway's premise, that Articles 2.1 and 2.6 require all product categories making up the "like
product" to be each individually "like" each and every separate product category making up the
product under consideration, is correct. If it is not, then Norway's legal argument is incorrect, and we
need not consider its contentions regarding the facts of this case.
7.46 Article 2.1 reads:
"For the purpose of this Agreement, a produc t is to be considered as being dumped,
i.e. introduced into the commerce of anothe r country at less than its normal value, if
the export price of the product exported from one country to another is less than the
comparable price, in the ordinary course of trade, for the like product when destined
for consumption in the exporting country."
7.47 Beyond stating that the language of Article 2. 1 reveals that a determination of dumping can
only be made through a comparison of "the prices of an exported product – referred to as the 'product
under consideration' – and a 'like product'"
225, Norway provides no analysis of the text of this
provision. Moreover, Norway identifies no explicit ob ligation in the text of Article 2.1 to support its
claim that the "product under consideration" must consist of a single, internally homogeneous,

222 The parties use different terminology in describing what is at issue in this claim, but as the EC
noted, "there is no doubt that conceptually what Norway seeks to challenge is ... the overall product scope of the
proceeding." European Communities, Second Written Su bmission, (hereinafter "EC, SWS"), para. 19. We
express no views on the position expressed by the EC that the term "product under consideration" may, in some
contexts, refer to some category of product narrower than the entire category that is subject to the anti-dumping
proceeding, which the EC refers to as the "product under investigation." EC, SWS, para. 18. Article 2.6, which
is at the core of Norway's arguments, refers to "product under consideration", and we will use that term in our
analysis.
223 Norway, FWS, paras. 45, 88-90.
224 Norway, FWS, paras. 138-165.
225 Norway, FWS, para. 85.

product or, alternatively, categories that are each i ndividually "like" each other so as to constitute a
single homogenous product.
226
7.48 We agree that Article 2.1 refers to "a product" as being dumped, but cannot agree that there is
any obligation concerning the scope of that product in that provision. There is simply nothing in the
text of Article 2.1 that provides any guidance what soever as to what the parameters of that product
should be. The mere fact that a dumping determinat ion is ultimately made with respect to "a product"
says nothing about the scope of the relevant produc t. There is certainly nothing in the text of
Article 2.1 that can be understood to require the type of internal consistency posited by Norway.
7.49 At the same time, other provisions of the AD Ag reement, relevant as context, suggest that
whatever the parameters of "a product" in Article 2.1 may be, the concept is not so limited as Norway
argues. For instance, Article 6.10 provides for limited examination in cases where the number of
"types of products involved" is so large as to make it impracticable to determine an individual margin
of dumping. Similarly, the Appellate Body has rec ognized that an investigating authority may divide
a product into groups or categories of comparab le goods for purposes of comparison of normal value
and export price – the practice of "multiple aver aging". Neither of these would be necessary if
Norway's view of the meaning of "a product" in Ar ticle 2.1 were the only permissible interpretation.
There would be no possibility of investigating more than one "type of product" as mentioned in
Article 6.10, and no reason to group comparable goods for purposes of making price comparisons for
each group in the process of calculating a single du mping margin for the product as a whole. These
considerations lead us to conclude that, while Ar ticle 2.1 establishes that a dumping determination is
to be made for a single product under considera tion, there is no guidance for determining the
parameters of that product, and certainly no requi rement of internal homogeneity of that product, in
that Article.
7.50 In essence, Norway's claim seems to be grounded in Article 2.6. Article 2.6 reads:
"Throughout this Agreement the term "like product" ("produit similaire") shall be
interpreted to mean a product which is iden tical, i.e. alike in all respects to the
product under consideration, or in the absence of such a product, another product
which, although not alike in all respects, has characteristics closely resembling those
of the product under consideration."
7.51 It is clear that the subject of Article 2.6 is not the scope of the product that is the subject of an
anti-dumping investigation at all. Rather, the purpose of Article 2.6, apparent from its plain language,
is to define the "like product".
227 Norway does not appear to contest this view. The plain language of
Article 2.6 calls for an assessment of "likeness" between some group of goods 228 and "the product
under consideration" in order to identify a "like pr oduct". Thus, logically, the scope of the "product
under consideration" referred to in Article 2.6 mu st already be known before the provisions of
Article 2.6 come into play. That is, it must be known what the comparator is, before any assessment
can be made as to whether another product is "ident ical" to or, in the absence of an identical product,
"has characteristics closely resembling those of" the imported "product under consideration".

226 See, e.g., Norway, FWS, paras. 45 and 129.
227 See, Panel Report, European Communities – Anti-Dumping Duties on Malleable Cast Iron Tube or
Pipe Fittings from Brazil ("EC – Tube or Pipe Fittings "), WT/DS219/R, adopted 18 August 2003, as modified
by Appellate Body Report, WT/DS219/AB/R, DSR 2003:VII, 2701, para. 7.149; and Panel Report, US –
Softwood Lumber V, para. 7.148.
228 In an anti-dumping investigation, the question of "like product" arises in two contexts – identifying
domestically produced goods that are "like" the product under consideration, and identifying goods sold in the
market of the investigated foreign producers/exporter that are "like" the product under consideration. The
identification of "like product" in these two contexts is for different purposes in the investigation.

7.52 It is important to note that the assessment of whether goods are "like" in the sense of
Article 2.6 entails first, a consideration of whet her goods are identical. Only if there are no goods
which are identical to the product under consider ation does Article 2.6 allow an investigating
authority to consider whether there is some ot her good which "has characteristics closely resembling
those of the product under consideration". Norway argues that in defining the "like product",
Article 2.6 requires an assessment of "likeness" in respect of the product under consideration "as a
whole", and that this requires a comparison of all product categories comprising the product under
consideration, with each other and with all pr oduct categories considered as potentially "like
product".229 Norway provides no analysis of the text of Article 2.6 in support of this contention.
7.53 In our view, even assuming Article 2.6 requir es an assessment of likeness with respect to the
product under consideration "as a whole" in determini ng like product, an issue which is not before us
and which we do not address, this would not mean that an assessment of "likeness" between
categories of goods comprising the product under cons ideration is required to delineate the scope of
the product under consideration. Merely to say th at the product under consideration must be treated
"as a whole" in addressing the question of like prod uct does not entail the conclusion that the product
under consideration must itself be an internally homogenous product. We can see nothing in the
paragraph from the Appellate Body Report in US – Softwood Lumber V , relied upon by Norway,
which would indicate otherwise.
230 Treating the product under consideration "as a whole" means that
a single dumping margin is calculated for that pr oduct, however defined, but says nothing about the
scope of that product.
7.54 The Appellate Body's decision in US – Softwood Lumber V indicates that the product under
consideration must be treated as a whole throughout an anti-dumping investigation, including at the
stage of identifying the "like product". It does not, however, say anything about determining the
scope of the product under consideration per se. Moreover, the Appellate Body was considering a
claim under Article 2.4.2 of the AD Agreement c oncerning the permissibility of a methodology for
calculating dumping margins which entails calculations in respect of defined sub-categories of the
product under consideration as an intermediate step in the determination of the margin of dumping for
the "product as a whole" ("multiple averaging"
231). We see no basis for the conclusion that the
treatment of the product under consideration "as a w hole" means anything more than that where an
investigating authority splits the product under cons ideration into different sub-categories in the

229 In its Second Written Submission, Norway argued that, in the US-Steel Safeguards dispute,
(United States – Definitive Safeguard Measures on Imports of Certain Steel Products ("US – Steel Safeguards"),
WT/DS248/R, WT/DS249/R, WT/DS251/R, WT/DS2 52/R, WT/DS253/R, WT/DS254/R, WT/DS258/R,
WT/DS259/R and Corr.1, adopted 10 December 2 003, 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, 3273), the EC advanced arguments
similar to those put forward by Norway in this case. Norway, SWS, paras. 99-105. While we recognize that the
EC's position in this case is diametrically opposed to the position it took as complainant in the US - Steel
Safeguards case, this says nothing relevant about the issue we must resolve in this case. We note that the Panel
and Appellate Body did not rule on this issue in the US - Steel Safeguards case. We also recognize that the
position Korea takes as a third party here is contrary to the position it took as defendant in Korea - Certain
Paper, but as with the differing position taken by the EC, we accord no weight to this fact.
230 Norway, FWS, para. 88-89, citing Appellate Body Report, US – Softwood Lumber V, para. 99.
231 The term "multiple averaging" refers to a me thod of comparing export price and normal value
whereby an authority divides a product under investigation into product types or models, calculates a weighted
average normal value and a weighted average export price for each product ty pe or model and then aggregates
the results of these comparisons to derive an overall margin of dumping. See, Appellate Body Report, US –
Softwood Lumber V , para. 80; and Panel Report, United States – Measures Relating to Zeroing and Sunset
Reviews (" US – Zeroing (Japan) "), WT/DS322/R, adopted 23 January 2 007, as modified by Appellate Body
Report, WT/DS322/AB/R, para. 7.92. In effect, "multiple averaging" results in the separation of the product
under consideration into groups of comparable goods in order to facilitate the process of comparing export price
and normal value to determine the existence and extent of dumping.

course of its "determination of the volume of dumped imports, injury determination, causal link
between dumped imports and injury to domestic i ndustry, and calculation of the margin of dumping",
it is not entitled to discount any of these sub-categories when performing the ensuing analysis.
232
7.55 In the context of Article 2.6, this logic c ould be understood to mean that where the product
under consideration consists of different sub-categories, the investigating authority, in assessing the
question of like product, must take into account each and every sub-category, and may not ignore any.
It cannot, however, be stretched to require th at an investigating authority assess whether each
category or group of goods within the product under consideration is "like" each other category or
group of goods.
7.56 Norway's position would, in our view, require th at any difference between sub-categories, or
even individual goods, within a product under consideration would mean that each must be treated
individually. As noted, Article 2.6 first refers to whether goods are identical in assessing likeness.
Since every article is identical to itself, each such article would have to be considered separately.
There would never be occasion to move on to c onsideration of whether another article has
"characteristics closely resembling" it. Thus, a pr oduct under consideration could not consist of any
grouping of non-identical product categories. This would, in our view, be an absurd result. Norway
ignores the concept of "identical" products, arguing th at an investigating authority should determine,
based on a series of criteria, whether products "rese mble one another physically" in determining an
appropriate product under consider ation. Such an assessment of whether products resemble one
another is only permitted, however, in the absen ce of identity under Article 2.6. Moreover, the
possibility of treating non-identical goods as like produc ts to an imported product under consideration
makes sense, as it is entirely possi ble that, for instance, the produ cts manufactured in the importing
country are not identical to the imported product under consideration. In such a case, if the
AD Agreement did not allow the possibility of treating another, non-identical product, as the like
product, there would be no basis for investigati on and imposition of anti-dumping duties. But this
consideration simply does not arise in the cont ext of delineating the product under consideration,
which is necessarily identical to itself.
7.57 We note that, on its face, Article 2.6 does not apply to the question of "determining" a product
under consideration at all. Norway asserts that, in order to make a determination of dumping, an
investigating authority must make a determination with respect to each of the constituent elements of
dumping, including, inter alia, product under consideration. Norway does not argue that there is a
specific direction to "determine" product under cons ideration in the AD Agreement, but asserts that
there must be an active step of making a finding.
233 Norway further asserts that specific criteria
govern this determination, although, again, there is no specific identification of any relevant criteria in
the AD Agreement.234 While it seems self-evident to us that an investigating authority must, at the
time it initiates an anti-dumping investigation, make a decision as to the scope of that investigation,
and give notice of the "product involved"235, we are not persuaded that either Article 2.1 or Article 2.6

232 This view is consistent with th e views of the Appellate Body in US – Hot-Rolled Steel that an
investigating authority may, in its analysis of injury, look at different sectors of the domestic industry, but it
must make its determination after an analysis of each of those sectors, so that the decision relates to the entire
domestic industry, and not just some sector or sectors. Appellate Body Report, US – Hot-Rolled Steel ,
para. 204.
233 Norway, Answer to Panel Question 46, para. 2.
234 Norway, Answer to Panel Question 47, para.7.
235 Article 12.1.1(i), AD Agreement.

of the AD Agreement establish a requirement for making an elaborated determination in that
regard.236
7.58 Essentially, Norway's argument raises an issue of policy, suggesting that the absence of limits
on the scope of the product under consideration migh t result in erroneous dumping determinations by
investigating authorities. Norway argues that, if pro ducts that are not "like" are treated as the product
under consideration in a single investigation, a dum ping determination cannot reveal whether some or
all of those products are dumped. 237 Norway gives, as an example, in investigation in which cars and
bicycles are treated as one product under investigation.238 We are not persuaded by Norway's extreme
example. Any grouping of products into a singl e product under consideration will have repercussions
throughout the investigation, and the broader such a grouping is, the more serious those repercussions
might be, complicating the investigating authorit y's task of collecting and evaluating relevant
information and making determinations consistent with the AD Agreement. Thus, it seems to us that
the possibility of an erroneous determination of dumping based on an overly broad product under
consideration is remote. That possibility is certain ly not enough to persuade us to read obligations
into the AD Agreement for which we can find no basis in the text of the Agreement.
7.59 Moreover, Norway's position would result in th e absurd situation of requiring fragmentation
of the product under consideration, and a consequent fragmentation of the like product, and ultimately
the domestic industry, which would render the possi bility of imposing dumping duties consistent with
the AD Agreement a nullity. We see nothing in Article 2.6, which as discussed, defines "like
product", which would support this view. In th is regard, it is noteworthy that, while the
AD Agreement specifically defines "like product" by requiring a comparison between domestically-
produced (or foreign) goods and the imported products that are the subject of the investigation, there
is no specific definition of "product under consideration". 239 In our view, the very fact that there is a
definition of like product in the AD Agreement indicat es that Members were well able to define terms
carefully and precisely when cons idered necessary. The absence of a definition of product under
consideration indicates that no effort was undertaken in that regard. In our view, this consideration
supports the conclusion that it would be absurd to impose the definition of like product from
Article 2.6 onto the undefined term product under consideration. We simply see no basis in the text
of Articles 2.1 and 2.6 for the obligations Norway seeks to impose on investigating authorities with
respect to product under consideration.
7.60 Norway makes a number of additional contextual arguments in support of its interpretation of
Article 2.6, none of which persuade us to change our views based on the text. Norway argues that the
first comparison methodology for calculating the margin of dumping set out in Article 2.4.2 (weighted
average normal value to weighted average export pr ice) confirms that "the group of products under
investigation must all be alike".
240 According to Norway, while it is possible under this methodology
to sub-divide the product under consideration into segments for the purpose of making the comparison

236 The criteria identified by Norway may well be re levant in the decision of the an investigating
authority in this regard, but that does not establish that consideration and determination based on those criteria is
a legal requirement, as Norway argues.
237 Norway, Answer to Panel Question 46, para.4.
238 Norway, Oral Statement at the first substan tive meeting (hereinafter "Norway First Oral
Statement"), paras. 26-27.
239 We note that proposals regarding definition of "product under investigation" have been made in the
context of the negotiations on anti-dumping pursuant to the Doha Development Agenda, which supports our
view that the existing text cannot be understood to contain such a definition. See, e.g., document TN/RL/W/143
at page 11, paragraph 17.
240 Norway, FWS, para. 99.

(i.e., "multiple averaging"), all such segments must belong to a group of products meeting the
definition of likeness, citing in this respect, a statement by the Appellate Body in EC – Bed Linen.
241
7.61 Again, as with Norway's reliance on the p assage from the Appellate Body's ruling in US –
Softwood Lumber V, the Appellate Body's statement in EC – Bed Linen was made in the context of a
claim relating to "multiple averag ing" under Article 2.4.2, not Article 2.6. Neither like product nor
product under consideration were issues under consid eration. Moreover, the Appellate Body has
since clarified that its reasoning in EC-Bed Linen should not be read as prohibiting multiple
averaging.242 As the practice of multiple averaging is based on the premise that the product for which
a dumping duty is determined may not be inte rnally homogeneous, making price comparisons for
groups of comparable goods within the product under consideration a practical analytical tool in
determining a single margin of dumping, it is im possible to reconcile multiple averaging with
Norway's position on product under consideration. In our view, there would be an inherent
inconsistency in concluding that multiple averaging is permitted, which the Appellate Body has found
and Norway acknowledges to be the case, and at the same time concluding that there must be identity
within the product under consideration. If the latte r were true, there would be no need for multiple
averaging.
7.62 Norway also relies on Article 3, and in partic ular, Article 3.6, as contextual support for its
claim. Article 3.6 provides:
"The effect of the dumped imports shall be assessed in relation to the domestic
production of the like product when availabl e data permit the separate identification
of that production on the basis of such criteria as the production process, producers'
sales and profits. If such separate identifi cation of that production is not possible, the
effects of the dumped imports shall be as sessed by the examination of the production
of the narrowest group or range of produc ts, which includes the like product, for
which the necessary information can be provided."
7.63 Norway argues that Article 3.6 supports the proposition that under the AD Agreement, the
results of separate production processes cannot be c onsidered a single product under investigation and
thus cannot be the subject of a single investigation. 243 Norway contends that the GATT 1947 panel
reports in the US – Wine and Grapes and Canada – Beef cases, as well as the Appellate Body Report
in US –Lamb, support this understanding of Article 3.6.
7.64 Article 3.6 is a provision about what informati on an investigating authority may evaluate in
considering the effects of dumped imports for th e purpose of determining injury to a domestic
industry.244 It simply has no bearing on the question of product under consideration. Article 3.6

241 Norway, FWS, para. 101, citing Appellate Body Report, EC – Bed Linen, para. 58.
242 Appellate Body Report, US - Softwood Lumber V, para. 81.
243 Norway, FWS, paras. 103-115.
244 The general rule set out in the first sentence of Article 3.6 is that an investigating authority's focus
must be on information relating to domestic production of the "like product", provided that it is possible to
separately identify such domestic production of the "like product" "on the basis of such criteria as the production
process, producers' sales and profits". Where this is not possible, the second sentence of Article 3.6 requires
investigating authorities to focus their analysis on the na rrowest group of products, including the "like product",
for which data may be available. Thus, the second sentence of Article 3.6 establishes a rule for how
investigating authorities should behave when data pertaini ng to domestic production of the "like product" either
does not exist or is so intertwined with data pertaining to a product other than the "like product" that a separate
analysis of the state of the domestic production of the "like product" cannot be made. See, Panel Report,
Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States ("Mexico –
Corn Syrup"), WT/DS132/R and Corr.1, adopted 24 February 2000, DSR 2000:III, 1345, para. 7.157. Clearly,

addresses a particular question about the data to be considered in an investigating authority's inquiry
into the effects of dumping. This happens, in every investigation, after the product under
consideration has been defined, the domestic like product has been determined pursuant to Article 2.6,
and the relevant domestic industry has been dete rmined pursuant to Article 4.1, which defines
"domestic industry" for the purposes of the AD Agreem ent. Article 4.1 makes clear that the starting
point for the identification of the domestic industry is the "like product". Norway's argument, on the
other hand, would entail a consideration of the pr oduction activities of the domestic industry in the
definition of the like product, and of the product under consideration, introducing a circularity into the
analysis which is untenable. Thus, we consider, Norway's reliance on Article 3.6 to be misplaced and
unpersuasive.
7.65 Norway's reliance on the two GATT 1947 reports and one Appellate B ody report in support
of its position is also misplaced. First, the statements cited by Norway were all made in the context of
claims relating to the definition of the domestic i ndustry, not the "like product". Indeed, in none of
the three cases did the parties raise the definition of the appropriate product. Rather, the issue in those
cases was whether certain enterprises could be consid ered part of the domestic industry producing the
relevant domestic product. 245 In all three cases, it was held that producers that were not in the
business of producing the relevant product could not be considered part of the domestic industry
based on their production of an input to that product.246
7.66 In the two GATT 1947 cases, the Panels referred to the provision in the Subsidies Code that is
reflected in Article 3.6 of the AD Agreement merely to confirm their views in this respect. In other
words, although the Panels' inquiries into what constituted the domestic industry involved
consideration of different production processes, the purpose of this consideration was to evaluate
whether enterprises engaged in one production pro cess could be considered producers of a product
resulting from a subsequent production process. Thus , these cases do not require the conclusion that
different production processes necessarily result in di fferent "like products". Rather, they indicate
that the fact that enterprises engage in diffe rent production processes may be determinative in
deciding whether they are "producers" of an iden tified like product and therefore may be considered
part of the domestic industry producing that product. The Panels concluded that grape growers and
cattlemen and feedlot operators were not producers of, respectively, wine and fresh or frozen beef.
7.67 There is no provision comparable to Article 3.6 in the Safeguards Agreement. However, the
Appellate Body in US – Lamb did consider a similar question, stating:

any of these considerations can only be addressed after a domestic industry is defined, which comes after a like
product is defined, by reference to a product under consideration whose scope has been established.
245 In US - Wine and Grape Products , the issue was whether, the relevant domestic product having
been defined as wine, growers of grapes could be considered part of the US industry producing that product.
GATT Panel Report, Panel on United States Definition of Industry Concerning Wine and Grape Products ,
SCM/71, adopted 28 April 1992, BISD 39S/436, paras. 4.2-4.6. Likewise, in Canada – Manufacturing Beef
CVD, the issue was whether, the relevant domestic product having been defined as fresh or frozen beef,
cattlemen and feedlot operators who raised and fattened live cattle could be considered part of the Canadian
industry producing that product. GATT Panel Report, Canada – Imposition of Countervailing Duties on
Imports of Manufacturing Beef from the EEC, SCM/85, 13 October 1987, unadopted, para. 5.1. Finally, in US –
Lamb, the issue was whether, the relevant domestic product having been defined as lamb meat, US growers and
feeders of live lambs could be considered part of the US lamb meat industry. Appellate Body Report, United
States – Safeguard Measures on Imports of Fresh, Ch illed or Frozen Lamb Meat from New Zealand and
Australia ("US – Lamb "), WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001, DSR 2001:IX, 4051,
paras. 77-96.
246 US – Wine and Grape Products, para. 4.2; Canada – Manufacturing Beef CVD , para. 5.1; and
Appellate Body Report, US – Lamb, para. 90.

"As we have indicated, under the Agreement on Safeguards, the determination of the
"domestic industry" is based on the "producers … of the like or directly competitive
products". The focus must, therefore, be on the identification of the products, and
their "like or directly competitive" relationship, and not on the processes by which
those products are produced."
247
In making this statement, the Appellate Body noted: "We can, however, envisage that in certain cases
a question may arise as to whether two articles are separate products. In that event it may be relevant
to inquire into the production processes for those pro ducts." Thus, the Appellate Body did not say, as
Norway argues, that in determining whether two articles are separate produc ts the authorities should
examine the production processes used to manufacture the two articles. The Appellate Body indicated
only that under the Safeguards Agreement, an i nquiry into production processes is not appropriate for
determination of domestic industry, but that it may be necessary to identify separate products. This
does not, in our view, support Norway's position.

7.68 Thus, we conclude that, contrary to Norw ay's claim, Articles 2.1 and 2.6 of the
AD Agreement do not establish an obligation on inv estigating authorities to ensure that where the
product under consideration is made up of categories of products, all such categories of products must
individually be "like" each other, thereby cons tituting a single "product". We therefore do not
consider it necessary to address Norway's argument s concerning the facts. Whether the range of
goods comprising the product "farmed salmon" that w as investigated by the EC are or are not all
"like" each other within the meaning of Article 2.6 is not a relevant question in light of our decision
on the interpretation of Articles 2.1 and 2.6.
7.69 Finally, this very issue, and many of the argu ments raised by Norway, have been previously
addressed by other Panels. Norway has not attempte d to distinguish the views of those Panels from
the circumstances of this case. While we are not bound by the decisions of other Panels, we
nonetheless consider it appropriate to review those decisions to assess the similarities and differences
in the underlying facts, and determine whether the analysis of those Panels is helpful in our
assessment of the arguments in this case.
7.70 The most significant discussion of the issue of product under consideration was in the US –
Softwood Lumber V dispute, which involved facts and argumen ts very similar to those in the case at
hand. In the underlying investigation, the US Department of Commerce (USDOC) had identified the
"product under consideration" as all "softwood lumber, flooring and siding (softwood lumber
products)", comprising numerous types of softwood lu mber products, including certain products (bed
frame components, finger-jointed flangestock, E astern White Pine and W estern Red Cedar) that
Canada argued should have been excluded from the i nvestigation. The "like product" identified by
the USDOC for purposes of the dumping determination was described in exactly the same terms as
the "product under consideration" - all "softw ood lumber, flooring and siding (softwood lumber
products)".
248 Thus, the product under consideration and the "like product" both included a variety of
product types, but exactly the same product types in each case, as is true in the case at hand. There is
no dispute in this case that the lik e products (Norwegian farmed sa lmon and EC farmed salmon) are
coextensive with the product identified by the EC as the product under consideration, farmed salmon.
7.71 Canada argued, similarly to Norway here, th at Article 2.6 requires that each individual
product making up the "like product" must be "lik e" each individual produc t making up the "product

247 Appellate Body Report, US – Lamb, para. 94.
248 The comparisons for purposes of determining the dumping margin were carried out on the basis of
categories of products in the original investigation. While Canada challenged the "zeroing" aspect of this
analysis, it did not dispute the "model matching".

under consideration".249 Canada asserted that the USDOC had not defined the characteristics of the
product under consideration, and did not compare the characteristics of each potential like product
with those of the product under consideration as a whole. According to Canada, the facts on the
record of the US - Softwood Lumber V investigation showed that the range of products included by the
USDOC in the product under consideration was so broad that all the individual products, constituting
collectively the "like product", were not alike each and every one of the products collectively forming
the product under consideration as they did not have characteristics closely resembling those of each
and every one of the individual products constitu ting collectively the product under consideration. 250
Thus, Canada argued that the United States had acted inconsistently with Article 2.6.
7.72 The Panel in US – Softwood Lumber V found that Article 2.6 addresses the definition of the
product that is to be considered "like" the product under consideration. According to the Panel, the
starting point for the application of Article 2.6 was the product under consideration. However, the
Panel could find no guidance in the AD Agreement on the way in which the "product under
consideration" itself should be determined. The Pa nel stated that "[w]hile there might be room for
discussion as to whether [the approach advocated by Canada] might be an appropriate one from a
policy perspective, whether to require such an approach is a matter for the Members to address
through negotiations. It is not our role as a panel to create obligations which cannot clearly be found
in the AD Agreement itself."
251 This aspect of the Panel's report was not appealed, and was thus
adopted by the DSB without modification
7.73 In another case, Korea – Certain Paper, the Panel referred to the product under consideration
in the context of its consideration of a clai m concerning the determination of like product under
Article 2.6. In that case, the Korean Trade Commission (KTC) had init iated an investigation
concerning dumped imports of "p lain paper copier" ("PPC") and "wood-free printing paper" ("WF")
from Indonesia. Indonesia made no claims conc erning the product under consideration, which
included both categories pf paper, but did dispute the KTC's decision that there was one domestic
industry producing the two categories of paper, and the determination of injury to that industry,
despite having made separate dump ing determinations for the two categories of paper. Indonesia
argued that PPC and WF are not like products, a nd that under Article 2.6, the KTC should have
analyzed the effects of imports of PPC on produ cers of PPC, and the effects of imports of WF on
producers of WF. Korea argued that under Article 2. 6, like product is defined by reference to the
imported product, and that Indonesia's reference to the differences among the products produced by
the domestic industry had no legal basis under the Agreement.
7.74 In its analysis, the Panel noted that the inv estigation initiated by the KTC concerned dumped
imports of PPC and WF, that the KTC determined that Korean PPC and WF were identical to
imported PPC and WF, and made a single injury determ ination. The Panel considered that the issue
before it was whether Article 2.6 of the AD Agreement required the KTC to determine that PPC and
WF were like products before proceeding to carry out a single injury determination. The Panel
concluded that it did not, stating "once the product under consideration is defi ned, the investigating
authority has to make sure that the product it is us ing in its injury determination is like the product
under consideration. As long as that determination is made consistently with the parameters set out in
Article 2.6, the investigating authority' s like product definition will be WTO-consistent."
252 T h e
Panel went on to state that it saw "no basis in Article 2.6 for the proposition that the like product
definition also applies to the definition of "the product under consideration". We are aware of no
provision in Article 2.6, or any other Article in th e Agreement, that contains a definition of "the
product under consideration" itself," citing in this regard US - Softwood Lumber V.

249 Panel Report, US – Softwood Lumber V, para. 7.157.
250 Panel Report, US – Softwood Lumber V, para. 7.155.
251 Panel Report, US – Softwood Lumber V, para. 7.157.
252 Panel Report, Korea – Certain Paper, para. 7.219.

7.75 We agree with the views expressed by these two Panels, and consider that they support our
conclusions on Norway's claim under Articles 2.1 and 2.6.
7.76 Based on the foregoing, and in the light of st andard set out in Article 17.6(i) of the
AD Agreement, we do not accept Norway's view that Articles 2.1 and 2.6 must be interpreted to
require the EC to have defined the product under c onsideration to include only products that are all
"like". As a consequence, we dismiss Norway's claim that the product under consideration identified
by the EC was inconsistent with the requirement s of Articles 2.1 and 2. 6. We further dismiss
Norway's consequential claims under Articles 5.1 and 5.4 (initiation); Article 2.1 (dumping
determination); and Articles 3.1, 3.2, 3.4, 3.5, and 3.6 (injury determina tion), which depended upon
its claims regarding the product under consideration. While Norway is correct that the product under
consideration has repercussions for an investigati ng authority's further considerations in an anti-
dumping investigation, in the absence of any violation with respect to the product under
consideration, there can be no violation, on that b asis, in subsequent aspects of the investigation and
determination.
D. A
LLEGED INCONSISTENCY OF THE EC'S DETERMINATION OF THE DOMESTIC INDUSTRY WITH
ARTICLE 4.1 OF THE AD AGREEMENT
1. Arguments of the Parties
(a) Norway
7.77 Norway claims that the EC's determination of domestic industry was inconsistent with the
requirements of the AD Agreement. Norway argues that, since the product under consideration, as
defined by the EC, included farmed salmon ranging from whole head-on gutted (HOG) fish to fillets,
the domestic industry must include producers of any one or more of these. Norway contends that the
EC improperly excluded from the do mestic industry several categori es of domestic producer that it
was required to include, pursuant to Article 4.1 of the AD Agreement. Norway points out that the
domestic industry as defined by the EC comprise s 15 fish farmers that grow salmon, and sell
predominantly whole/HOG fish, but does not include any processors that produce filleted products
without also growing salmon. Norway asserts that assuming that the product under consideration was
properly defined, which Norway disputes, there is a fatal mismatch between the determinations of the
"product" and the "domestic industry", and the latter is in violation of Article 4.1. Norway further
asserts that the EC improperly excluded six other categories of domestic producer that it was required
to include. As a result, Norway asserts that th e EC failed to define the domestic industry to include
domestic producers of the like product whose collec tive output of the products constitutes a major
proportion of the total domestic production of those products, as required by Article 4.1.
7.78 Norway further claims that, as a consequence of these violations, the EC failed to establish
that the application for initiation of the investiga tion was made by or on beha lf of the proper domestic
industry, as required by Article 5.4 of the AD Agre ement, and failed to determine that the proper
domestic industry was injured, pursuant to Articles 3.1, 3.4 and 3.5 of the AD Agreement.
7.79 Norway also claims that the EC's determination of injury violated Articles 3.1, 3.4 and 3.5 of
the AD Agreement because the EC engaged in sampli ng of the domestic industry, which it claims is
not permitted under the AD Agreement.
7.80 Norway's claim is based on Article 4.1 of the AD Agreement, which provides, in pertinent
part that:
 "[f]or purposes of this Agreement the term "domestic industry" shall be interpreted
as referring to the domestic producers as a whole of the like product or to those of

them whose collective output of the products constitutes a major proportion of the
total domestic production of those products …"
In Norway's view, the plain meaning of this provision defines the domestic industry on the basis of
two elements: "producers" and the "products" that they produce. Norway points to discussions of
industry in cases under other WTO Agreements to support its view that the focus of the domestic
industry definition is on the producers of, in the case of the AD Agreement, the like product.

7.81 Norway refers to the decision of the Appellate Body in US – Lamb , interpreting the term
"domestic industry" in the Agreement on Safeguards, where the Appellate Body held that "'producers'
are those who grow or manufacture an article; 'producers' are those who bring a thing into
existence."
253 Similarly, Norway relies on the decision of the Appellate Body in US – Cotton Yarn ,
interpreting the term "domestic industry" in the now defunct Agreement on Textiles and Clothing ,
where the Appellate Body noted that the definition of the "domestic industry" is "product-oriented and
not producer-oriented".254
7.82 Norway acknowledges that, in principle, some producers may be excluded from the domestic
industry, given that Article 4.1 provides that the "domestic industry" includes, in principle, the
domestic producers of the like product "as a whole" or those whose collective output constitutes "a
major proportion of the total domestic production", wh ich latter implies that not all producers need be
included. However, Norway asserts that Article 4.1 allows for the wholesale exclusion of producers
of the like product from the domestic industry only if they are found to be "related" to exporters or
importers, or are themselves im porters of the allegedly dumped product, as provided for in
Article 4.1(i).
7.83 Thus, in Norway's view, the EC violated Article 4.1 by excluding producers which
exclusively filleted salmon sourced from elsewhere, producers that did not express an opinion
regarding the investigation ("silents"), producers of organic salmon, producers that did not provide
information to the investigating authority, and producers of "certain unspecified types".
255 Moreover,
Norway considers it impermissible for an investigating authority to limit the domestic industry to only
the complaining producers, as the EC did in this case., even if they represent a "major proportion" of
domestic producers. 256 In Norway's view, the definition in Article 4.1 ensures that the domestic
industry includes producers from all segments of the industry, except, possibly, related producers.
Norway also refers to Articles 3 and 5 as contextu al support for the view that the domestic industry
must be defined in a manner that reflects the totality of the industry, noting for instance the
requirement for an "objective examination" of the state of the "domestic industry" on the basis of
"positive evidence" of the whole industry, and the obl igation in Article 5.4 to determine the degree of
support for the application based on consideration of the volume of production attributable to
supporting producers, and the volume of production of opposing producers, as well as the total
volume of production by the domestic industry, including those expressing no opinion.
7.84 Turning to the facts of this case, Norway maintains that the EC improperly excluded defined
categories of producer from the domestic industry. Norway asserts that any party that produces any of
the like product is necessarily a member of the domestic industry. 257 With respect to producers of

253 Appellate Body Report, US – Lamb, para. 84.
254 Appellate Body Report, United States – Transitional Safeguard Measure on Combed Cotton Yarn
from Pakistan ("US – Cotton Yarn "), WT/DS192/AB/R, adopted 5 November 2001, DSR 2001:XII, 6027,
para. 86.
255 Norway does not contest the exclusion of related parties, or , it appears, the exclusion of companies
which fell into receivership during the period of investigation.
256 Norway, SWS, para. 109.
257 Norway, SWS, para. 112.

salmon fillets who did not themselves grow salmon fish, Norway argues that, having defined the
product as it did, to include salmon fillets, the EC co uld not exclude the producers of fillets from the
domestic industry. Under Article 4.1, Norway considers that these producers are part of the domestic
industry, whether they also grow salmon or not. With respect to "silent" producers, Norway
maintains that there is no legal basis for the exclus ion of producers on the basis of their silence, and
that the EC's explanation is in any event inadequate, as it failed to state the number and identity of the
silent producers and the volume of production thereby excluded from the domestic industry, making it
impossible for Norway to appreciate the significance of this exclusion for the investigation. With
respect to producers of "certain types" of salmon, Norway asserts that the fact that producers produced
some, but not all, types of the like pr oduct, is inadequate, as a matter of law, to justify their exclusion,
and in any event, the EC's explanation of this b asis for exclusion is inadequate. With respect to
producers of organic salmon, Norway asserts that the product scope of th e investigation included
organic salmon
258, and that producers of organic salmon must, therefore, be included in the domestic
industry. Moreover, Norway considers that th e EC's explanation of why, and how, it excluded
organic producers from the domestic industry is entirely inadequate, particularly in light of the fact
that it appears from the Definitive Regulation that th e EC concluded that none of the five sampled
companies produced exclusively organic salmon. Finally, Norway considers that the exclusion of
producers that did not provide data in the format requested or were otherw ise deemed not to have
cooperated fully is without legal basis, and is insufficiently explained. Norway asserts that Article 4.1
does not authorize the exclusion of domestic produ cers that do not cooperate fully. Rather, these
producers must be retained within the domestic indus try and, where there are gaps in the information
provided by a domestic producer, Article 6.8 and Annex II of the Anti-Dumping Agreement provide a
mechanism to overcome deficiencies in the information provided.
7.85 Norway also asserts that, in any event, after excluding categories of producers, the EC failed
to demonstrate that the remaining group of domestic producers constitute a "major proportion" of total
domestic production. Norway notes that the EC found that total domestic production of salmon was
22,000 tons; the 15 producers in the EC's industr y produced 18,000 tons; and the five sampled
produced 8,640 tons. However, Norway argues that since the EC failed to specify the volume of
production of the excluded producers, the EC failed to substantiate its finding that the 15 producers
included in the domestic industry accounted for a "m ajor proportion" of total production by reference
to sufficient facts.
7.86 Norway's last claim concerning the domestic industry is that the EC violated the
AD Agreement by relying on a sample of five producers in conducting an important part of its injury
analysis. Norway maintains that the AD Agreement does not permit a Member to engage in sampling
of the domestic industry for purposes of an injury determination. Norway points to the absence of any
provision specifically allowing for sampling in the in jury part of anti-dumping investigations, such as
is set out in Article 6.10 of the AD Agreement for the dumping part. Norway also relies on the
decision of the Appellate Body held in US – Hot-Rolled Steel , which stated that Article 3 of the
AD Agreement requires "[t]he investigation and ex amination must focus on the totality of the
'domestic industry' and not simply on one part, sector or segment of the domestic industry."259
7.87 Norway also relies on Footnote 13 of the AD Agreement as contextual support for its
position. That footnote provides for sampling to dete rmine the degree of support for an application in
the case of fragmented industries. Norway argues that it demonstrates that when the drafters intended
to permit the use of sampling in the examination of the domestic industry, they did so expressly, and

258 Definitive Regulation, Recital 10.
259 Appellate Body Report, US – Hot-Rolled Steel, para. 190. In that dispute, the USITC had conducted
an aggregate injury examination for all producers as well as an in-depth examination in relation to the
production for the merchant market, but did not conduct an equivalent examination of captive production. The
Appellate Body found that failure to do so violated Article 3 of the AD Agreement.

only for the limited purposes set out in the footnote . Moreover, Norway considers that footnote 13
establishes more limited conditions in which sampling may be used, as well as stricter requirements
for how sampling may be undertaken. Thus, Norway c ontends, even if Article 3 could be interpreted
to confer an implied right to sample in an inju ry determination, the conditions governing sampling
should be based on footnote 13 as the sole provision in the AD Agreement that authorizes sampling of
the domestic industry in the importing country. Norw ay considers that even in that case, the EC
would not have justified the use sampling, or of the particular sample relied upon in this case.
(b) European Communities
7.88 The EC argues that Article 4.1 merely sets out a definition of domestic industry, and therefore
does not, in itself, impose any obligation on the EC or any other WTO Member. As a result, the EC
considers that it cannot be found to have acted inc onsistently with Article 4.1, and that Norway's
consequential claims under Articles 3 and 5 also fail.
7.89 Turning to Norway's argument, the EC asserts , with respect to "filleting-only" undertakings,
Norway's arguments appear premised on the notion that this case involved different goods grouped in
one investigation. However, the EC recalls that the product concerned is defined as farmed salmon,
however presented. The EC does not dispute Norw ay's statements that filleting-only undertakings
essentially benefit from dumped imports, which lower th eir costs, and would not have supported the
application in this case. The EC argues that th e inclusion of such undertakings in the domestic
industry would have rendered impossible any anti-dumping remedy for EC salmon producers faced
with dumped Norwegian salmon.

7.90 The EC maintains that in these circumstances, the investigating authority was called upon to
take a reasonable and balanced approach that fairly addressed the underlying economic issues,
consistent with the Anti-Dumping Agreement. In the EC's view, this is what the investigating
authority did in this case. The EC asserts that Norway's position is based on the view that whenever
something is changed in some way, a first thing is consumed, and a second thing is produced. Thus,
when a whole fresh salmon fish is harvested, a whole fresh salmon fish is produced. When it is gutted,
a whole fresh fish is consumed, and a head-on-gutte d fish is produced. When the head is removed, a
head-on-gutted fish is consumed, and a head-off gutted fish is produced. When it is filleted, a head-off
gutted fish is consumed, and fillets are produced, an d so on. Thus, for the EC, Norway's approach,
that every change involves the production of pro duct, and everyone involved is a producer, would
result in double counting of production. The EC does not consider this positi on either convincing or
legally correct.
7.91 The EC posits that different undertakings i nvolved in activities descr ibed in the preceding
paragraph are not all necessarily properly characteris ed as "producers". Thus, to the EC, filleting-
only undertakings are in the nature of intermediaries between the original producer of salmon fish and
the final consumer. The EC asserts that Article 6.12 of the AD Agreement recognizes the category of
"industrial users" and provides for their interests to be taken into account in the consideration of
dumping, injury and causality. Thus, the EC maintain s that in this case, the investigating authority
had to make a choice whether to categorize filleti ng-only undertakings as "producers" or take their
interests into account pursuant to Article 6.12 of the Anti-Dumping Agreement. The EC submits that
there can be no doubt that the investigating authority was entitled to take the latter course of action.
7.92 The EC points to the text of Article 4.1 in support of its view. The EC notes that the
definition of the verb "to produce" includes : "Bring (a thing) into existence; …".
260 The EC asserts
that filleting-only undertakings are not really con cerned with bringing the product concerned (farmed
salmon) into existence, or producing it. Rather, if anything, they are concerned with the process of

260 Citing Shorter Oxford English Dictionary (fifth edition, 2002).

consuming it. The EC further supports this view by reference to the dictionary meaning of "produce"
in an agricultural (or fisheries) context as havi ng a particular connotation, indicating a "natural"
process (such as growing salmon), as distinct from a more "industrial" process (such as chopping it up
as a prelude to consumption). In addition, the EC points to the inclusion of Article 6.12 in the WTO
Agreement, arguing that this new provision, with out equivalent in the Tokyo Round Code, supports
the view that the negotiators specifically sought to address the particular matter at issue here in
Article 6.12, and this intention and provision must be respected and given meaning. The EC asserts
that Article 6.12 began as a proposal by Nordic countries in the Uruguay Round negotiations,
261 and
that Norway is thus asking the Panel to ignore a provision that Norway itself put forward during the
negotiations, and to interpret the AD Agreement as if the original proposal, which might have enabled
industrial users to block the initiation of anti-dumpi ng proceedings indefinitely, had been accepted in
the negotiations. The EC considers that its positi on is based on a reasonable interpretation of the
AD Agreement, and must therefore be sustained by the Panel.
7.93 The EC also asserts that the Appellate Body decision in US - Lamb concerns a safeguard
measure, which has a different underlying logic, and that the Safeguards Agreement has no equivalent
to Article 6.12 of the AD Agreement. The EC argu es that the issue in that dispute was whether the
domestic industry in a safeguards case could include la mb growers despite the fact that whole lambs
were not part of the product. The EC considers that similar arguments demonstrate that the GATT
and WTO Panel reports referred to by Norway ar e also inapposite, as they concern questions of
definition of the industry to include producers of a product not included in the product concerned, and
different textual provisions.
7.94 With respect to the exclusion of "silent" producers, the EC asserts that Article 4.1 refers to the
domestic producers as a whole or to those of them whose collective output constitutes "a major
proportion" of the total domestic production. Thus, if "silents" are excluded, but nevertheless "a major
proportion" of total domestic production is included, the EC maintains that the terms of Article 4.1 are
satisfied. In this case, the EC asserts that during the investigation period the estimated total EC
production of farmed salmon was 22,000 tonnes; that the 15 cooperating EC producers produced
around 18,000 tonnes; and that they therefore represent around 82 per cent of EC production, which is
clearly a major proportion of the total.
262 The EC notes that Norway does not contest the accuracy of
this calculation, although it does argue that it is not adequately explained.
7.95 With respect to the exclusion of other categor ies of producers – producers of "certain types"
of salmon, producers of organic salmon, and producer s that did not provide the data in the format
requested, the EC considers that the same argume nt supports the same conclusion. The EC argues
that Norway misses the point that if the domestic industry as defined by the investigating authority
comprises producers whose output constitutes a "maj or proportion" of total domestic production,
Article 4.1 is satisfied.
7.96 Turning to Norway's claims concerning sampling of the domestic industry, the EC considers
that Norway's claim is strictly legal, and not of a factual nature. The EC maintains that Articles 3.1,
3.4 and 3.5 of the AD Agreement do not impose an y additional requirements with regard to the
definition of domestic industry set forth in Article 4.1 of the AD Agreement. While they do require

261 MTN.GNG/NG8/W/76 of 11 April 1990, Negotiating Group on MTN Agreements and
Arrangements, Drafting Proposals of the Nordic Countri es Regarding Amendments of the Anti-Dumping Code,
page 4, third para, and footnote : " Public interest clause : In deciding on the initiation of an anti-dumping
investigation, on whether or not to apply provisional or definitive anti-dumping measures and on the extent and
level of such measures the investigating authority shou ld consider whether an investigation or anti-dumping
measures would be in the public interest. Footnote : Consideration of the public interest could cover such
questions as the competitive situation, the interests of consumers and industrial users of the product subject to
the complaint and other relevant economic circumstances."
262 Definitive Regulation, Section 4.1, particularly Recitals 38 and 40.

that the determination of injury be made with re spect to the industry that is the subject of the
investigation, the EC maintains that it satisfied this requirement in this case. The EC considers that
Norway's reliance on the US – Hot-Rolled Steel case is inapposite, since the EC did not undertake
analysis of only a segment or part of the domestic industry defined in the investigation. The EC notes
that Norway has not cited a single provision of the Anti-Dumping Agreement which would prohibit
sampling in an injury analysis. The EC also argue d that it would be absurd to conclude that the
negotiators of the AD Agreement agreed to estab lish a lower standard for the determination under
Article 5.4 of the AD Agreement, for which sampling is allowed, than for the determination of injury
under Article 3.
7.97 The EC asserts that the use of sampling for injury analysis is well accepted among WTO
Members and established in WTO case law, citing the Panel's report in EC – Bed Linen .263 The EC
further notes that the US – Hot-Rolled Steel case involved an entirely different issue from sampling,
and gives no support to Norway's view that sampling in an injury analysis is prohibited. The EC
considers that footnote 13 is irrelevant to the ob ligations concerning injury determinations, in part
because it relates to the question of initiation under Article 5, and not injury under Article 3.
2. Arguments of the Third Parties
(a) China
7.98 China, referring to Panel decisions in Argentina – Poultry Anti-Dumping Duties
264 and
Mexico - Corn Syrup 265, argues that Article 4.1 imposes an ob ligation that Members are obligated to
fulfil. China disputes the EC's view that Article 4.1 provides two equally valid options for defining
the domestic industry – domestic producers "as a whole" or "those of them whose collective output of
the products constitutes a major proportion of the domestic production of those products". China
considers this interpretation would allow investig ating authorities to simply identify "a major
proportion" of the total production and ignore the rest of the producers in the domestic market. In
China's view, this would not allow for the necessar y match between the product and the industry.
Moreover, it opens the possibility that an inves tigating authority might pick and choose from all
domestic producers and include those that may be in jured to a higher extent than the others, thus
making it easier to find injury, and twisting the injury evaluation.
7.99 Regarding Norway's sampling claims, China tak es no position regarding the factual details of
the EC's decision to sample, nor on the selection of the sample actually chosen. China notes that
Articles 3.1 and 3.4 establish an obligation for th e investigating authorities to conduct an objective
examination and evaluation of all relevant economic factors and indices having a bearing on the state
of the injury to the domestic industry, but neither these two Articles nor any other Articles in the
AD Agreement specify what methodology may be used to conduct such an objective examination.
China agrees with Norway that Footnote 13 a nd Article 6.10 set out specific circumstances and
conditions for resort to sampling, but in China's view, this does not automatically demonstrate that the
drafters of the AD Agreement intended to permit only two circumstances where sampling could be
used and that sampling in other circumstances woul d violate the AD Agreement. Thus, China argues
that that it is within the discretion of the inves tigating authority to decide what methodology it will
use in an injury examination as lo ng as the investigation is conducted "objectively" and includes an

263 EC, FWS, para. 93, referring to Panel Report, European Communities – Anti-Dumping Duties on
Imports of Cotton-Type Bed Linen from India ("EC – Bed Linen") , WT/DS141/R, adopted 12 March 2001,
paras. 6.175 to 6.183.
264 Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from Brazil ("Argentina –
Poultry Anti-Dumping Duties"), WT/DS241/R, adopted 19 May 2003, DSR 2003:V, 1727, para. 7.338.
265 Panel Report, Mexico- Corn Syrup, para.7.147.

evaluation of all relevant economic factors and indices that affects the state of the injury to the
domestic industry.
7.100 Moreover, China considers that the rationale underlying Article 6.10 of the AD Agreement,
allowing sampling where a complete evaluation is "impracticable" supports the use of sampling in
injury analysis when it is "impr acticable" for the authority to evaluate all relevant economic factors
for all producers in the domestic industry within the time-limits, so long as the evaluation is objective.
China points to the Appellate Body's decision in US – Lamb, where, despite the fact that no provision
in the Safeguards Agreement addresses specifically th e question of the extent of data collection, the
Appellate Body concluded that "authorities must have a sufficient factual basis to allow them to draw
reasoned and adequate conclusions concerning the si tuation of the 'domestic industry,'" which means
"that the data examined, concerning the relevant factors, must be representative of the 'domestic
industry.'" (emphasis added) .
266 China considers that this reas oning applies in the case of the
AD Agreement to support the view that as long as the investigating authority can demonstrate that the
sampling allows the authority to evaluate data that is sufficiently representative of the "domestic
industry", the investigating authority may use sampling.
(b) Hong Kong, China
7.101 Hong Kong, China submits that the adoption of a selective approach, be it sampling or
otherwise, in investigating producers of a defi ned domestic industry in injury determination is
inconsistent with Articles 3 and 4.1 of the AD Agreement. Hong Kong, China considers that
Article 4.1, read in conjunction with footnote 9 (defining injury) requires that the domestic industry
with respect to which injury is considered and de termined must be the domestic industry defined in
accordance with Article 4.1, that is, the domestic pr oducers of the like product as a whole, or those of
them whose collective output of the like pr oduct constitutes a major portion of the domestic
production of the like product. Once the domestic i ndustry has been defined for the purposes of the
investigation, it is not permissible to pick and choose among the producers, or to limit the injury
analysis to the few selected. Hong Kong, China considers that the absence of a sampling provision
for injury analysis reinforces its view in this regard. Hong Kong, China asserts that neither the
possibility of excluding "related" producers, nor the possibility of defining the domestic industry as
producers whose output constitutes "a major proporti on of the total domestic production" implies a
right to sample or pick selectively domestic pr oducers among the pre-determined "major proportion"
of the industry for the purposes of injury determin ation. Thus, in Hong Kong, China's view, having
defined the industry as 15 producers, the EC vi olated the AD Agreement by making its injury
determination with reference to only 5 producers.
(c) Japan
7.102 Japan does not agree with the EC's argument th at Article 4.1 of the AD Agreement contains a
definition rather than an obligation. The Appella te Body has found violations of such definitional
provisions in a number of cases, generally in combin ation with violations of what might be called
"operative" provisions.
267 In this case, if the EC authorities' limitation of the scope of the "domestic

266 Appellate Body Report, US – Lamb, paras. 128-132
267 See, e.g., Appellate Body Report, US – Lamb, paras. 95-96. Therein, the Appellate Body found that
the USITC had included in the "domestic industry" producers of products other than the product concerned
(namely, live lambs). The Appellate Body found this inconsistent with definition of "domestic industry" set
forth in Article 4.1(c) of the Agreement on Safeguards . Thus, the Appellate Body co nsidered that an authority
acts in a manner inconsistent with the AD Agreement if it defines the domestic industry in a way inconsistent
with Article 4.1(c) of that Agreement. The Panel in Argentina – Poultry Anti-Dumping Duties considered that
Article 4.1 of the AD Agreement "im poses an express obligation on Members to interpret the term "domestic
industry" in that specified manner. Thus, if a Member were to interpret the term differently in the context of an

industry" is not consistent with the requirements of Article 4.1 of the AD Agreement, then the EC
cannot make a determination about injury to the "dom estic industry" consistent with Article 3.1 of the
AD Agreement. This is because th e injury determination would pertain to an industry other than the
relevant "domestic industry," correctly defined. Th us, failure to comply with the definition of the
"domestic industry" in Article 4.1 of the AD Agre ement would lead to a consequent violation of
Article 3.1 of the AD Agreement.268
7.103 Japan considers that the EC's interpretation of "domestic industry" essentially means that
authorities may exclude domestic producers of the like product from the "domestic industry" for any
reason (or for no reason), so long as the remainin g producers constitute "a major proportion" of
domestic production of the like product. Japan considers that this could allow authorities to define the
domestic industry in a results-oriented way, for example, by choosing only unprofitable producers and
excluding profitable ones, which would be inconsiste nt with the obligation of Article 3.1 of the
AD Agreement to conduct an "objective examination" of injury. In Japan's view, an interpretation of
Article 4.1 of the AD Agreement which would al low an authority to pick and choose domestic
producers such as to make a positive injury finding mo re likely, would be inconsistent with this
obligation.
7.104 With regard to sampling, Japan does not deny th e theoretical possibility to apply Article 6.10
of the AD Agreement to the domestic industry on its face. Indeed, Japan agrees with the EC that there
would be cases where there are so many domestic industry members that individual examination of all
of them would be impracticable. On the other hand, Japan notes that the parties agree that there are
no clear provisions in the AD Agreement that perm it the authorities to engage in sampling of the
domestic industry, except for footnote 13, which does not relate to the post-initiation phase of the
investigation, according to the EC.
269 Japan also notes that active participation of the domestic
industry might be expected in the present case, wher e the domestic industry consists of a relatively
small number of companies, and that where th ere are relatively few producers, the burden on
authorities of obtaining data from all producers should not be excessive. Finally, even if sampling of
the domestic industry is permitted for the purposes of an injury determination, the samples have to
represent the comprehensive picture of the domestic industry. Japan suggests that it is unclear
whether the sampling techniques applicable under Article 6.10 may be applied in the injury context.
(d) United States
7.105 The United States takes no position with respect to the issue of whether the EC reasonably
excluded, as a factual matter, certain categories of salmon producers from its domestic salmon
industry. The United States does not, however, agree with Norway's argument that an investigating
authority may only exclude "related" producers from the definition of the domestic industry under
Article 4.1 when performing its injury analysis. In the US view, Article 4.1 is satisfied if and
investigating authority includes in the industry t hose domestic "producers whose collective output of
the products constitutes a major proportion of the total domestic production of those products."
270 The
United States notes that the definition of domestic industry must be based on "positive evidence and
involve an objective examination" of the evidence relating to injury, 271 and that "an 'objective
examination' [under Article 3.1] requires that the domestic industry, and the effects of dumped
imports, be investigated in an unbiased manner, without favoring the interests of any interested party,

anti-dumping investigation, that Member would violate the obligation set forth in Article 4.1." Panel Report,
Argentina – Poultry Anti-Dumping Duties, para. 7.338.
268 See ibid.
269 EC, FWS, para.99.
270 AD Agreement, Article 4.1.
271 AD Agreement, Article 3.1.

or group of interested parties, in the investigation."
272 Accordingly, the US suggests that if the EC's
definition meets the "major proportion" of domestic production standard of Article 4.1, the Panel still
should assess whether the EC's exclusion of certain categories of salmon producer from the industry
was biased or designed to favor the interest of any group of interested parties in the investigation,
including the producers who filed the petition.
7.106 The United States takes no position concerning th e EC's method for selecting the sample of
companies it analyzed. The US recognizes that th ere is no explicit permission in the AD Agreement
allowing an investigating authority to rely on a small sample of domestic producers when performing
its injury analysis in antidumping investigations . However, the United States considers that the
AD Agreement does make clear that sampling is an appropriate methodology when used in other
contexts. For example, the Agreement permits the "us[e of] samples which are statistically valid" for
the purpose of calculating dumping margins,
273 and it permits the use of "statistically valid sampling
techniques" to determine an industry's support fo r an antidumping petition when the industry is a
fragmented one.274 The US points to the decision of the Appellate Body in Mexico – Anti-Dumping
Measures on Rice, which recognized that:
"Articles 3.1 and 3.2 [of the Agreement] do not prescribe a methodology that must be
followed by an investigating authority in conducting an injury analysis.
Consequently, an investigating authority enjoys a certain discretion in adopting a
methodology to guide its injury analysis. Within the bounds of this discretion, it may
be expected that an investigating aut hority might have to rely on reasonable
assumptions or draw inferences."
275
Thus, the US considers that the EC could reasonabl y decide to rely on a sample of the domestic
industry, as long as its decision was based on a reasonable set of assumptions or inferences as to the
validity of the sample.

3. Evaluation by the Panel
7.107 There are three basic questions raised by Norway's domestic industry claims – first, whether
the EC erred in not including certain categories of enterprises in the domestic industry based on the
nature of their specific activities (filleting-only undertakings,
276 organic producers, and producers of
"certain kinds" of salmon), their silence concerni ng the investigation, or their failure to provide
information in the format requested. The second question is whether the EC's interpretation of
Article 4.1 as allowing the investigating authority to conclude that, so long as the producers included
in the domestic industry accounted for a major propor tion of total domestic production, it was entitled
to ignore other producers, is permissible. The thir d question is whether the EC was entitled to engage
in sampling of the domestic industry in the context of its injury analysis. We will begin our analysis
by considering the text of the relevant provision, Article 4.1.
7.108 Article 4.1 of the AD Agreement provides, in pertinent part:
"For the purposes of this Agreement, the term "domestic industry" shall be interpreted
as referring to the domestic producers as a whole of the like products or to those of

272 Appellate Body Report, US – Hot-Rolled Steel, para. 193.
273 AD Agreement, Article 6.10.
274 Id., Article 5.4, note 13.
275 Appellate Body Report, Mexico – Definitive Anti-Dumping Measur es on Beef and Rice, Complaint
with Respect to Rice ("Mexico – Anti-Dumping Measures on Rice") , WT/DS295/AB/R, adopted
20 December 2005, para. 204.
276 A "filleting-only undertaking" as used in this report is an undertaking which transforms acquired
farmed (other than wild) salmon that is not filleted, into farmed (other than wild) salmon fillets.

them whose collective output of the products constitutes a major proportion of the
total domestic production of those products..."
Thus, domestic producers of the "like product" are the starting point for the determination of the
domestic industry. "Like product" is defined in Article 2.6 of the AD Agreement as:

"a product which is identical, i.e. alike in all respects to the product under
consideration, or in the absence of such a product, another product which, although
not alike in all respects, has characteristics closely resembling those of the product
under consideration."
As discussed above, the EC defined the product under consideration in this case as "farmed (other
than wild) salmon, whether or not filleted, fresh, chilled or frozen," 277 finding in addition that "all
farmed salmon constitutes a single product. The different presentations all serve the same end use and
are readily capable of being substituted between each other. Therefore, they are considered to
constitute a single product for the purposes of the proceeding." 278 The EC specifically excluded from
the product under consideration "other similar farmed fish products such as large (salmon) trout,
biomass (live salmon) as well as wild salmon and further processed types such as smoked salmon."279

7.109 With respect to like product, the EC found "t he basic physical characteristics of farmed
salmon produced and sold by the Community indus try in the Community, farmed salmon produced
and sold on the domestic Norwegian market, and farmed salmon imported into the Community from
Norway are the same and [] they have the same use."
280 The EC therefore provisionally concluded
that "the product concerned and the farmed salmo n produced and sold on the domestic market of
Norway, as well as the farmed salmon produced and sold in the Community by the Community
industry have the same basic physical characterist ics and uses and are theref ore considered to be
alike...."281 It confirmed this conclusion in its Definitive Regulation.282
7.110 Thus, it is clear that the EC like product was found to be coextensive with the product under
consideration. Therefore, the like product perforce included the specified "farmed (other than wild)
salmon, whether or not filleted, fresh, chilled or frozen". In our view, the plain language of
Article 4.1 establishes that the domestic industry in this case was therefore to be defined as producers
"as a whole" of this product, or those producers whose output of this product constitutes a major
proportion of total EC production of this product.
7.111 Putting aside for the moment the question of whether producers of the like product "as a
whole" or producers of a "major proportion of tota l domestic production" of the like product are to be
considered the domestic industry, it is clear that Ar ticle 4.1 is unqualified in providing that the term
"domestic industry" is to be interp reted by reference to "producers" of the like product. The text
subsequently sets out circumstances in which some producers of the like product may be left out of
the domestic industry. Thus, Article 4.1(i) provides for exclusion of producers related to the exporters
or importers, or producers who are themselves importers of the allegedly dumped product.
Article 4.1(ii) provides that, in the exceptional ci rcumstances of two or more competitive markets
within the territory of a Member, producers with in each market may be regarded as a separate
industry if certain conditions are satisfied.

277 Provisional Regulation, Recital 10
278 Provisional Regulation, Recitals 10-11.
279 Provisional Regulation, Recital 10.
280 Provisional Regulation, Recital 12.
281 Provisional Regulation, Recital 14.
282 Definitive Regulation, Recital 8. Although Norway does not address the EC's determination of like
product, there is no dispute that the like product was coextensive with the product under consideration.

7.112 However, nothing in the text of Article 4.1 gives any support to the notion that there is any
other circumstance in which the domestic industry can be interpreted, from the outset, as not including
certain categories of producers of the like product, other than those set out in that provision.
283 Thus,
we see no basis in the text of Article 4.1 whic h would allow for the exclusion from the domestic
industry, as a category or group, of producers of any form of the like product – in this case, producers
of any of the "presentations" identified by the EC as the like product – "farmed (other than wild)
salmon, whether or not filleted, fresh, chilled or frozen".
7.113 The EC asserts, however, that en terprises engaged in filleting are not "producers" as "fillets
do not result from a process of "production", but mere ly transformation of one presentation to another
presentation."284 Thus, the EC argues that filleting-only undertakings are "not really concerned with
bringing the product concerned (farmed salmon) into existence, or producing it. Rather, if anything,
they are concerned with the process of consuming it." 285 The EC considers that the interests of
filleting-only undertakings are properly taken into account under Article 6.12 of the AD Agreement
and focuses on the analytical problems that it considers would arise if filleting-only undertakings were
considered "producers" in this case and treated as part of the domestic industry.
7.114 The EC's assertion is difficult to square with the ordinary meaning of the term "produce".
The verb "to produce" is defined, inter alia , as "[b]ring (a thing) into existence" and ""bring into
existence by mental or physical labour (a material object)". 286 There can be no doubt, in our view,
that an enterprise engaged in, as the EC puts it, " gutting, beheading, and fi lleting" is engaged in
"producing", that is, bringing into exis tence, by physical labour, salmon fillets. 287 We do not dispute
that undertakings that only engage in filleting operations, as opposed to operations engaged in
growing live salmon, and selling them whole, and/or beheaded, and/or gutted, and/or filleted, and/or
fresh, and/or frozen, or any combination thereof, ma y have different economic interests. Thus, an
investigation concerning a domestic industry compri sing enterprises with more than one of these
various economic interests may well involve compli cated questions regarding data collection and
analysis. Such complications cannot, however, override the plain meaning of the text of
Article 4.1.288
7.115 There is no dispute that filleted salmon is within the scope of the like product identified by the
EC in this case. Thus, based on our interpretation of the plain language of Article 4.1, we consider
that any enterprise that produced any form of the like product should be considered, at least in the first
instance, a "producer" of the like product, and as such, part of the domestic industry.289

283 By this, we do not mean to suggest that a determination based on information from fewer than all
domestic producers of the like product will necessarily be insufficient as an element of a decision to impose
anti-dumping duties. However, we do see a clear distinc tion between the definition of the domestic industry as
set out in Article 4.1, and whether the information obtained during the investigation concerning the domestic
industry, as defined, is sufficient to form the basis of a determination of injury and causation.
284 EC, Answer to Panel Question 2, para. 6.
285 EC, FWS, para. 71.
286 New Shorter Oxford English Dictionary, Clarendon Press, 1993.
287 EC, FWS, para. 71.
288 The EC argues that its view that filleting-only undertakings are not "producers" of farmed salmon
represents a "permissible interpretation" of the AD Agre ement. EC, FWS, para. 74. It is not clear which
provision of the AD Agreement the EC is referring to here, Article 4.1 or Article 6.12. However, we consider
that whether a particular undertaking "produces" the like product may present an issue of fact in a particular
investigation (see footnote 289, below) but it does not present an issue of interpretation of the AD Agreement.
289 There may be circumstances in which an enterprise whose product is within the scope of the like
product may be found to have engaged in a level of activity so low as to justify the conclusion that it did not, in
fact, "produce" the like product. However, there was no consideration of the degree of activity of filleting-only

7.116 It is clear that the investigating authority never considered EC producers of salmon fillets who
did not also farm salmon fish to be part of the domes tic industry. This is apparent from the fact that
the volume of production cited by the EC as "total domestic production", 22,000 tonnes, is, as we
understand it, the EC's estimate of the volume of salmon fish farmed by EC salmon growers. 290 It
certainly does not include the volume of salmon fille ts produced by enterprises that produced salmon
fillets from purchased salmon fish. 291 In our view, this wholesale exclusion of an entire category of
producers from the domestic industry is not compatible with the definition of domestic industry as set
out in Article 4.1.
7.117 The EC, however, argues that since Article 4.1 is a definitional provision, it imposes no
obligation, and therefore cannot be the basis of a finding of violation. In our view, merely that
Article 4.1 sets out a definition does not preclude a panel finding that the decision of the investigating
authority concerning the appropriate domestic industr y is inconsistent with the AD Agreement. The
question whether the EC defined the domestic industry in a proper manner may well be decisive in the
consideration of other claims in dispute, i.e., subsidiary claims regarding initiation, as well as claims
regarding injury and causation. In our view, it is necessary to address Norway's claims concerning the
definition of the domestic industry in order to estab lish whether other determinations were made in
relation to a domestic industry defined consistently with Article 4.1.
7.118 In our view, regardless of whether Article 4.1, as a definitional article, itself imposes
obligations on Members which can be the basis of a finding of violation, it is necessary and
appropriate to address Norway's claims under Article 4.1 in this dispute. If the EC's approach to
defining domestic industry in this case resulted in an investigation concerning a domestic industry that
did not comport with the definition set forth in Article 4.1, then it seems clear to us the EC analyzed
the wrong industry in determining the adequacy of support for the initiation of the investigation under
Article 5.4 of the AD Agreement, and in considering injury and causation under Article 3, committing
an error which is potentially fatal to the WTO- consistency of the investigating authority's
determinations on those issues.
7.119 We note that the question of whether definitional provisions can be the basis of a finding of a
violation under a covered agreement has been addr essed by several panels, whose decisions support
our views on the matter. Thus, the Panel in United States – Softwood Lumber V noted with respect to
Article 2.6, which defines like product,
"Article 2.6 is a definitional article, and as su ch it is not clear to us that it contains in
itself obligations on Members, or in any event that it could be the basis for an
independent violation. On the other hand, it appears to us that Canada's claim is
predicated on the proposition that DOC took an approach to the definition of like
product which deviated from that in Article 2.6. Thus, a threshold and potentially
dispositive issue is whether DOC in fact took an approach to like product which
deviated from that of Article 2.6."
292
The Panel in Argentina – Poultry , considering the same provision as is at issue here, concluded that
Article 4.1 "imposes an express obligation on Member s to interpret the term "domestic industry" in
that specified manner" and stated that "if a Member were to interpret the term differently in the

undertakings in defining the domestic industry during the investigation. Therefore, the question is not before us
on the facts of this case.
290 EC, Answer to Panel Question 5, para. 29. Also, Definitive Regulation, Recital 38.
291 See, e.g., Norway, FWS, para. 55 and Exhibit NOR-17.
292 Panel Report, United States – Softwood Lumber V, para. 7.146. The Panel went on to conclude that
"the DOC's approach to "like product" was not inconsistent with the definition of "like product" in Article 2.6 of
the AD Agreement". Panel Report, United States – Softwood Lumber V, para. 7.158.

context of an anti-dumping investigation, that Member would violate the obligation set forth in
Article 4.1".
293 In US – Lamb, the Appellate Body found that the United States violated the definition
of "domestic industry" in Article 4.1(c) of the Agreement on Safeguards.294 In US – Hot-Rolled Steel,
the Panel and Appellate Body both found that the United States had violated Article 2.1 of the Anti-
Dumping Agreement, which defines the term "dumping". 295 In EC – CVDs on DRAMS , the Panel
found that the EC violated Article 1.1 of the SCM Agreement, which defines a "subsidy".296

7.120 The only textual basis the EC proposes in support of its view that filleting-only enterprises
were properly not considered part of the domestic i ndustry is Article 6.12. However, that provision
deals with an entirely different i ssue than the definition of the domestic industry. Article 6, as a
whole, deals with various issues pertaining to eviden ce in an anti-dumping investigation. Article 6.12
specifically requires an investigating authority to provide opportunities for information to be provided
by certain entities that are not "interested parties" – inter alia, industrial users of the product under
investigation. In our view, even granting that filleting-only undertakings might be considered
"industrial users" of imported salmon, in that they "use" one presentation of the like product (salmon
fish, in some form), they cannot properly be considered to be exclusively industrial users, as they
themselves are engaged in producing another presenta tion of the like product (fillets). As producers
of salmon fillets, which is within the scope of the like product, such enterprises should, at least
initially, be considered as part of the domestic industry.
297 As we noted above, there may be
circumstances in which an investigating authorit y might conclude that certain enterprises whose
output is part of the like product should not be consid ered "producers", as their level of activity is so
low as to suggest that they do not actually brin g the like product into existence. There was no
consideration of any such possibility in the investig ation at issue here, however, and thus we need not
resolve this question, either as a matter of law or on the facts of this case.
7.121 We recognize that, as argued by the EC, this c onclusion has certain implications which may
need to be addressed by an investigating authority, particularly with respect to the collection and
analysis of data for different presentations of the like product. However, we do not see how problems
of data collection and evaluation could possibly trump the plain meaning of the text of Article 4.1.
Moreover, there is no prohibition in the AD Agreemen t on the examination of different sectors of a
domestic industry, so long as all sectors are included in the analysis and determination on an even-
handed basis, without favoring any one sector. 298 Thus, we see no bar to gathering and analysing
information for different categories of producer in th e course of an investigation. That this might
result in a more complicated investigation and more complex analysis does not undermine our
conclusion based on the text of Article 4.1.
7.122 Similar considerations apply to our consider ation of the EC's treatment of producers of
organic salmon, which again is within the like prod uct as defined by the EC, and "silent" producers.
The EC has not argued that these enterprises are not producers of the like product, and has not made
any argument concerning the different nature of these producers, as it did for filleting-only

293 Panel Report, Argentina – Poultry Anti-Dumping Duties, para. 7.338.
294 Appellate Body Report, US – Lamb, para. 96.
295 Appellate Body Report, US – Hot-Rolled Steel , para. 240(d), upholding the panel's finding in
para. 8.1(c).
296 Panel Report, European Communities – Countervailing Measures on Dynamic Random Access
Memory Chips from Korea ("EC – Countervailing Measures on DRAM Chips") , WT/DS299/R, adopted
3 August 2005, paras. 8.1(a), 8.1(b) and 8.1(c).
297 To the extent filleting-only undertakings in a domestic industry were related to exporters or
importers of the allegedly dumped product. or were themselves importers of the allegedly dumped goods,
Article 4.1(i) would allow for their exclusion. Of course , such exclusion, and the reasons for it, would have to
be apparent on the face of the determination. In this case, the EC not having included them in the industry in the
first place, they could not be excluded under Article 4.1(i).
298 Appellate Body Report, US-Hot-Rolled Steel, paras. 195-196.

undertakings. Thus, in our view, there is no suppor t for the exclusion of these producers, as a group,
from the domestic industry.
7.123 With respect to producers of "certain types" of salmon, producers of or ganic salmon, "silent"
producers of salmon, and producers of salmon that did not provide information in the format
requested, the EC argues that since the producers it did include in the domestic industry accounted for
a major proportion of domestic production of the lik e product, it was entitled to not include producers
of these types. These arguments raise the second question which we identified above, whether once
producers of the like product accounting for a major proportion of domestic production of that product
are included in the domestic industry, other producers need not even be considered. While this is a
very interesting issue, of some import, it is not necessary for us to decide it in the context of this
dispute. We have concluded that the EC erre d in excluding certain enterprises from the domestic
industry. Thus, it is clear that the EC's assessme nt of whether the producers it did include accounted
for a "major proportion" of domestic production of th e like product is based on incorrect information
concerning the volume of total domestic production of the domestic like product. The EC not having
even obtained information on, insofar as we can de termine, much less made a determination of the
proportion of total production of the domestic lik e product accounted for by individual producers, any
assessment by us would be entirely de novo, which is, of course, an exercise we are prohibited from
undertaking. Therefore, we exercise judicial economy in not addressing this aspect of Norway's
claims.
7.124 We therefore conclude that the EC's approach to defining the domestic industry in this case
resulted in an investigation concerning a domestic industry that did not comport with the definition set
forth in Article 4.1 of the AD Agreement. As a co nsequence, the EC's determination of support for
the application under Article 5.4 was based on information relating to a wrongly-defined industry, and
is therefore not consistent with the requirements of that Article. Furthermore, the EC's analyses of
injury and causation were based on information relating to a wrongly-defi ned industry, and are
therefore necessarily not consistent with the requirements of Articles 3.1, 3.4, and 3.5.
7.125 Having concluded that the EC's approach to defining domestic industry was erroneous, we
also consider that the sample of that industry relie d upon by the EC necessarily is itself erroneous, as
it relates to a wrongly-defined domestic industry. Nonetheless, we consider it appropriate to address
Norway's claims on the issue of sampling in more deta il, as they fall within the range of issues which
we believe it appropriate to address despite our exer cise of judicial economy. This is because this
issue may well arise in the context of any actions taken by the EC in implementing our decision. 299
We therefore go on to consider it.
7.126 It is clear that there is no specific provision providing for sampling in the context of the injury
aspect of an anti-dumping investigation. Norway's argument that sampling is prohibited in the injury
context is thus based on the silence of the Agreemen t on this issue. In our view, however, the mere
absence of a specific provision allowing for sampling is not a sufficient basis for finding sampling to
be prohibited in injury determinations. In our view, the mere absence of a provision permitting a
particular investigative or analytical method in an anti-dumping investigation cannot mean that it is,
for that reason alone, prohibited. The AD Agreem ent does not specify all the different methodologies
of investigation and analysis that might be useful or appropriate in particular circumstances, and
cannot be expected to do so. If applied as a gene ral interpretive principle, Norway's position would

299 Appellate Body Report, Australia – Measures Affecting Importation of Salmon ("Australia –
Salmon"), WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327, para. 223: "A panel has to
address those claims on which a finding is necessary in order to enable the DSB to make sufficiently precise
recommendations and rulings so as to allow for prompt compliance by a Member with those recommendations
and rulings "in order to ensure effective resolution of disputes to the benefit of all Members".

render the AD Agreement potentially null in numerous situations where it simply does not specifically
address a question that may arise in an investigation.
7.127 The silence of the AD Agreement on the questi on of sampling in the context of injury
determinations is in contrast to the situation re garding dumping determinations. With respect to the
dumping aspect of an anti-dumping investigation, Article 6.10 of the AD Agreement specifically
authorizes, and sets out criteria and methodological guidelines for, the use of limited examination.
Norway argues that since there is a specific pr ovision allowing for sampling in the context of
determinations of dumping, the absence of a simi lar provision in the context of determinations of
injury must be given effect by concluding that sampl ing is prohibited in the latter case. We do not
agree, as in our view, there is a distinct differen ce between the determination of injury in an anti-
dumping investigation, and the determination of dumping which provides a logical explanation for the
lack of a sampling provision in the context of injury determinations.
7.128 The AD Agreement makes clear that a determination of dumping is individual. Article 2,
together with Article 6.10, make it clear that the preferred method for determining dumping is to
calculate a margin of dumping for each foreign prod ucer or exporter on the basis of that producer's
own data. In addition, there are specific rules in the AD Agreement concerning the collection and
verification of that information.
300 By contrast, only a single injury determination is made in each
investigation, for the entire domestic industry in question. Article 3, and the decision of the Appellate
Body in US - Hot-Rolled Steel , make it clear that a determination of injury is a collective assessment
for the entire domestic industry as defined by th e investigating authority in the investigation. 301
Moreover, there is little if any methodological guidan ce for the determination of injury, although it is
clear that the relevant factors mu st be assessed with respect to the industry, and not individual
domestic producers. 302 Thus, the starting point for injury analysis is aggregate or collective
information, rather than inform ation for individual enterprises. 303 Thus, the calculation of dumping
margins and the assessment of injury are different t ypes of analytical exercises, leading to different
types of conclusions.
7.129 In our view, this implies that, in the absence of a provision specifically allowing for a limited
examination, as an exception to the general rule of individual determinations, it would be impossible
for investigating authorities to make dumping determ inations in certain cases involving more than
some relatively limited number of foreign producer s or exporters, given the complexities of the
investigation and the applicable time limits. Thus, a specific provision authorizing limited

300 For instance, Article 2.2 sets out detailed rules co ncerning what information may be used and what
sources may be used to obtain that information for individual enterprises. Article 2.4 specifies, inter alia, what
adjustments, and in what circumstances, may be made to the information obtained from individual enterprises.
Article 6.1, and particularly Article 6.1.1 sets out rules governing the collection and handling of information.
Article 6.7 and Annex I set out rules for the verification of information obtained from individual foreign firms.
301 Appellate Body Report, US – Hot-Rolled Steel, paras. 204-206. See also, Panel Report, EC – Bed
Linen, para. 6.182 (injury information and determination limited by definition of industry – investigating
authority may not look at facts concerning companies not within the defined domestic industry.)
302 We note that Article 4.1(ii) provides that "inj ury may be found to exist even where a major portion
of the total domestic industry is not injured, provided ...that the dumped imports are causing injury to the
producers of all or almost all of the production within" the regional market considered. This specific standard
applicable in the case of regional industry lends further support to our view that injury in non-regional industry
cases is a question to be answered with reference to the entire domestic industry, and certainly not with
reference to individual producers. This is not to say that individual producers, or groups of producers, may not
be examined and analysed separately in the course of an injury investigation and analysis, but merely that the
final conclusion concerning the existence of injury must encompass the entire industry.
303 Of course, much of the necessary information may well be obtained from individual enterprises, but
this is not the only relevant source – information from industry groups and associations may also be gathered
and evaluated.

examination is necessary in order to ensure th at the anti-dumping mechanism can function. By
contrast, since the injury determination is an aggregate one, based on a collective assessment of
information, there is no similar need for a specific provision for sampling. There is certainly nothing
in the AD Agreement that would necessitate obtai ning information from each domestic producer in
the industry on each element of an injury analysis. 304 There is no guidance in the AD Agreement on
the sources, collection or verification of information concerning injury. In light of this absence of
methodological guidance, and the aggregate nature of the injury determination, we are unsurprised
that the specific question of sampling in this c ontext is not addressed in the AD Agreement, and
cannot conclude that this absence requires the conc lusion that sampling in the context of injury
determinations is prohibited. Such a conclu sion would make it impossible for investigating
authorities to make injury determinations in certa in cases involving more than some relatively limited
number of domestic producers. 305 We therefore dismiss Norway's claim that the use of sampling by
the EC investigating authority was in violation of Articles 3.1, 3.4 and 3.5
7.130 We do consider that the AD Agreement establish es some general parameters for the use of
sampling in the injury context. Thus, in our view, the obligation in Article 3.1 that a determination of
injury be based on "positive evidence" and involve an "objective examination" of the volume, price
effects, and impact of dumped imports, limits an in vestigating authority's discretion both in choosing
a sample to be examined in the context of in jury, and in collecting and evaluating information
obtained from the sampled producers. The Appellate Body stated, in US – Hot-Rolled Steel , that "an
'objective examination' [under Article 3.1] require s that the domestic industry, and the effects of
dumped imports, be investigated in an unbiased manner, without favoring the interests of any
interested party, or group of interested parties, in the investigation." 306 A sample that is not
sufficiently representative of the domestic industry as a whole is not likely to allow for such an
unbiased investigation, and therefore may well result in a determination on the question of injury that
is not consistent with the requirements of Article 3.1 of the AD Agreement.307

304 We note in this regard that Article 3.4 specifies th at the list of relevant factors to be considered in
examining the impact of dumped imports on a domestic industry is not exhaustive, and no one or several of
those factors can necessarily give decisive guidance. Article 3.2 contains a similar provision concerning the
impact of dumped imports on prices. These provisions support our view that a determination of injury to a
domestic industry may be made even in a case in wh ich there is not complete information concerning all
relevant factors for all domestic producers in the industry.
305 Norway recognized this consequence of its position, when it replied to a Question by the Panel,
stating that:
"The authority must seek information from each and every producer comprising the domestic
industry, as defined by the investigating authority. ... The degree and quality of the
information that an authority s ecures for each of the producer s may differ from producer to
producer. However, an authority must make an effort to secure relevant information from all
domestic producers – which are, after all, within its jurisdiction. Where an authority is unable
to obtain information, it can, if necessary, obtain the "best information" available from
secondary sources under Article 6.8 of the Anti-Dumping Agreement."
In our view, this would impose an excessive burden on investigating authorities that is eliminated by
recognition of the permissibility of sampling.
306 Appellate Body Report, US – Hot-Rolled Steel, para. 193.
307 In response to a question from the Panel, No rway stated its disagr eement with the premise
underlying the question, that is, the assumption that sampling for purposes of injury determinations is not
prohibited. Norway went on to state that, assuming it were not, the conditions governing sampling would be
drawn from footnote 13, and that, further "the obligation in Article 3.1 to conduct an "objective examination"
based on "positive evidence" requires that a sample be "unbiased", "conform to the dictates of the basic
principles of good faith and fundamental fairness", and not "favour[] the interests of any interested party or
group of interested parties". Norway, Answer to Panel Question 51, para. 44, citing Appellate Body Report, US
– Hot-Rolled Steel, para. 193.

7.131 Norway, however, relies on the decision of the Appellate Body held in US – Hot-Rolled Steel
in support of its view that sampling is prohibited in the injury context. Th at case did not involve the
question of sampling at all. Rather, in that case, the Panel was faced with a situation where the
investigating authority found that the domestic industry comprised production for the merchant
market, and captive production for internal consumption, and considered information for the merchant
market segment of the industry separately, with out a commensurate separate consideration of the
captive production segment. Thus, the conclusion of the Appellate Body, that Article 3 of the
AD Agreement requires "[t]he investigation and ex amination must focus on the totality of the
'domestic industry' and not simply on one part , sector or segment of the domestic industry"
308 says
nothing, in our view, relevant to the questi on of whether sampling is permitted in injury
determinations.
7.132 Norway also argues that assuming sampling is permitted in injury determinations, it is
permitted only in the circumstances provided for in footnote 13 of the AD Agreement, which it argues
is the only provision authorizing sampling of th e domestic industry in the importing country.
Footnote 13 is appended to Article 5.4 of the AD Agreement, which requires investigating authorities
to determine the degree of support for an appli cation for anti-dumping duties expressed by domestic
producers. Thus, not only is footnote 13 not, on its fa ce, applicable to the determination of injury
under Article 3, but it is in the context of a requi red determination that involves assessments of the
individual positions of domestic producers to determin e whether there is, in the aggregate, adequate
support for the application. Thus, as is the case w ith dumping determinations, there would seem to be
a logical rationale for an explicit authorization of sampling in this context as an exception to what
might otherwise be impossible, that is, determining the views of an "exceptionally large" number of
domestic producers in a "fragmented industr[y]" with respect to the application. However, as
discussed above, the situation with respect to injury determinations is different, and we see no basis to
impose the conditions set out in footnote 13 on sampling for injury assessments.309
7.133 Given that we have determined that the EC's de finition of the domestic industry in this case is
not consistent with Article 4.1 of the AD Agreemen t, we do not go on to consider whether the sample
it selected satisfies these considerations, as we have no relevant determination to review in this regard,
and will not undertake an independent analysis of this question.

308 Appellate Body Report, US – Hot-Rolled Steel, para. 190.
309 In addition, we see no basis to impose the criteri a of Article 6.10 on sampling in the context of
injury. It is not clear that the "lar gest volume that can reasonably be i nvestigated" criterion of Article 6.10
would an appropriate basis for the selection of a sample in the context of an injury investigation. On the
dumping side, ensuring that an adequate portion of total exports is investigated might be sufficient to justify
imposition of an anti-dumping duty, particularly given that there is a possibility for subsequent refunds if an
individual producer is not actual dumping. In the investigation of injury, factors other than the volume of
production would seem at least equally, if not more, relevant to ensuring that a sample adequately represents the
domestic industry as a whole, sufficient to justify a finding of injury to the domestic industry. Thus, while the
volume of production covered by a sample may be rele vant in assessing whether a determination based on
information from sampled domestic producers satisfies the requirements of Article 3.1, other considerations may
also be as relevant, or potentially more relevant.

E. ALLEGED INCONSISTENCY OF VARIOUS ASPECTS OF THE EC'S DETERMINATION OF DUMPING
WITH THE AD AGREEMENT
1. Alleged Inconsistency of the EC's Limite d Examination with Article 6.10 of the
AD Agreement
(a) Alleged insufficiency of Norway's request for establishment
7.134 Before turning to Norway's substantive cl aims, we address the European Communities'
argument that Norway's claim under Article 6.10 is out side the Panel's terms of reference. The EC
raised this objection in its second written submission.310
7.135 The European Communities argues that Norway's claim that it acted inconsistently with
Article 6.10 of the AD Agreement by excluding "mere exporters" from the scope of its examination of
dumping, is outside of the Panel's terms of re ference because it was not properly identified in
Norway's panel request, as required by Article 6.2 of the DSU. In particular, the European
Communities alleges that part of the Article 6.10 claim presented by Norway in its written
submissions in this dispute is different from the claim presented in its panel request, which according
to the European Communities, concerned the selection of interested parties investigated, not the
exclusion of "mere exporters" from the scope of the i nvestigating authority's investigation.
Furthermore, the European Communities contends that the question whether an investigating
authority is permitted to exclude "mere exporters" from the scope of its investigation does not fall
within the subject matter of the obligations contained in Article 6.10, but rather Article 2. Thus, the
European Communities argues that Norway's claim is founded on the wrong legal basis and asks the
Panel to dismiss Norway's complaint.
311
7.136 Norway argues that paragraph 4 of its panel requ est plainly identified Article 6.10 as the legal
basis for its claim. Furthermore, according to Norway, the European Communities' view that
Article 6.10 permits the exclusion of "mere exporters" is an interpre tative question that does not alter
the Panel's terms of reference.312
7.137 It is well established that a panel's terms of reference are governed by a complainant's panel
request, and that a panel request must be consistent with Article 6.2 of the DSU. Article 6.2 reads:
"The request for the establishment of a pane l shall be made in writing. It shall
indicate whether consultations were held, identify the specific measures at issue and
provide a brief summary of the legal basis of the complaint sufficient to present the
problem clearly. In case the applicant re quests the establishment of a panel with
other than standard terms of reference, th e written request shall include the proposed
text of special terms of reference."
7.138 In general, when faced with a question relating to the scope of its terms of reference, "a panel
must scrutinize very carefully the request for estab lishment of a panel to ensure its compliance with
both the letter and the spirit of Article 6.2 of the DSU".313 To this end, below we begin our analysis of
the European Communities' objection by closely ex amining the relevant text of Norway's panel
request, which reads:

310 EC, SWS, para. 3.
311 EC, SWS, paras. 3-16.
312 Norway, Oral Statement at the second substa ntive meeting (hereinaft er "Norway Second Oral
Statement"), para. 45.
313 Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution
of Bananas ("EC – Bananas III "), WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, 591, para. 142.

"Norway considers that the measure is incons istent with, at least, the obligations of
the European Communities under the following provisions of the Anti-Dumping
Agreement and, where specified, the GATT 1994:

 4. Article 6.10 because the European Communities determined an
individual margin of dumping for a selection of producers that neither
constituted a statistically valid sample nor represented the largest percentage
of the volume of exports from Norway that could reasonably be investigated;
and because the European Communities failed to determine an individual
margin of dumping for one of the producers included by the European
Communities in the defective sample."
314
7.139 The European Communities' objection is centred on the first part of item 4 of the panel
request, where Norway explicitly contests the ma rgin of dumping calculated for a "selection of
producers" on the grounds that they allegedly did not constitute a statistically valid sample nor have
exports representing the largest percentage of the volume of exports from Norway that could
reasonably be investigated. The Panel understands that the European Co mmunities' concerns are
twofold: First, it contends that nothing in the te xt of the panel request indicates that Norway is
making a claim under Article 6.10 of the AD Agreem ent in respect of the exclusion of "mere
exporters" from the scope of its investigation. In ot her words, to the extent that Norway contests the
exclusion of "mere exporters" from the scope of th e investigation, the European Communities argues
that Norway is now making a new claim that cannot be found in the panel request. Second, the
European Communities is of the view that Article 6.10 cannot be the correct legal basis for bringing
such a claim, because the exclusion of "mere expor ters" from a dumping investigation is, according to
the European Communities, a matter that falls within the scope of Article 2 of the AD Agreement, not
Article 6.10.
7.140 Norway's panel request identifies a concern with the "selection of producers" actually
investigated by the European Co mmunities and the extent to which they "represented the largest
percentage of the volume of exports from Norway that could reasonably be investigated". This
concern is repeated in Norway's First Written Su bmission, which explicitly identifies the "European
Communities' selection of the sample" and the allege d failure to "examine the largest percentage
volume of Norway's exports to the European Co mmunities" as the focus of the claim that the
European Communities acted inconsistently with Article 6.10. 315 The exclusion of "mere exporters"
from the scope of the investigation is raised in several passages of Norway's First Written
Submission.316 However, it is clear from reading Norway's First Written Submission that this
assertion is made not for the purpose of making a new claim under Article 6.10, but rather to
substantiate the Article 6.10 claim that is already set out in Norway's panel request. In particular,
Norway argues that the European Communities' ex clusion of all non-producin g exporters from even
being considered for inclusion in the EC's inves tigation of dumping meant that the exports of the
producers actually investigated did not represent the la rgest percentage of the volume of exports that
could reasonably be investigated. According to Norway, six of the non-producing exporters excluded
from the investigation had greater volumes of exports than eight of the ten producers actually
investigated.
317 Thus, Norway's First Written Submission reveals that one of the arguments made to
substantiate its claim that the Eu ropean Communities' "selection of producers" was inconsistent with
Article 6.10 was that non-producing exporters were excluded per se from the investigation. In this

314 WT/DS337/2, page 2.
315 Norway, FWS, headings V.A, V.A(iii) and paras. 284, 287 and 319.
316 Norway, FWS, paras. 294, 297-319.
317 Norway, FWS, paras. 293.

light, we reject the European Communities' contention that Norway claims that the exclusion of "mere
exporters" from the dumping investigation was inconsistent with Article 6.10.
7.141 Next, we turn to the European Communities' submission that Article 6.10 is the incorrect
legal basis for a claim that the exclusion of "mere exporters" from a dumping investigation is
impermissible. First, we note that because we have found that Norway is not bringing such a claim,
there is no basis to support the European Communiti es' objection. In any event, the EC's argument
here relates to the substance of Norway's case, rath er than to the sufficiency of Norway's request for
establishment of a panel. Accordingly, we will a ddress it, to the extent required, as part of our
analysis of the substance of Norway's Article 6.10 claim.
7.142 For the above reasons, we therefore dismi ss the European Communities' objection to
Norway's claim in respect of Article 6.10 of the AD Agreement.
(b) Arguments of the parties
(i) Norway
7.143 Norway claims that, by excluding all non-producing exporters from its examination of
dumping, and limiting its examination to ten Norwegian exporting producers , the European
Communities acted inconsistently with Article 6.10. According to Norway, having made the decision
to examine ten interested parties, the Europ ean Communities was obliged under Article 6.10 to
investigate the ten interested par ties with the largest possible volume of exports from Norway to the
European Communities, irrespective of whether th ese interested parties were producers, producer-
exporters or non-producing exporters. Norway asser ts that the facts show that the European
Communities failed to comply with this alleged re quirement, because it examined only three of the
ten interested parties with the largest export volumes to the European Communities.
7.144 Norway submits that nothing in Article 6.10 of the AD Agreement supports the view that one
category of interested parties can simply be ex cluded from the investigation of dumping. Under
Article 6.10, an investigating authority must, as a rule, determine an individual margin of dumping
"for each known producer or exporter " (emphasis added by Norway). This general rule places
producers and exporters on an equal footing in an inv estigation. In Norway's view, the word "or" in
the text of the first sentence of Article 6.10 has a conjunctive meaning, implying that investigating
authorities are required to calculate a margin of dumping for both producers and exporters. This,
according to Norway, is supported by the text of several other provisions of the AD Agreement, as
well as certain statements of the Appellate Body in the Mexico – Rice case,
318 and the Panel in the
Korea – Paper case.319 Thus, although the investigating authority is entitled to depart from the
general rule by engaging in a lim ited examination, nothing in the text of Article 6.10 permits an
investigating authority to exclude one or other category from the investigation.
7.145 Norway further contends that the exclusion of non-producing exporters from an examination
of dumping could give rise to distortions that make affirmative dumping determinations more likely
because the excluded category of interested parties might have had higher export prices, lower
domestic prices or lower costs of production. Referr ing to certain Appellate Body statements made in
the US – Softwood Lumber V (Article 21.5 – Canada) and US – Hot-Rolled Steel case, 320 Norway

318 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 216, citing Appellate
Body Report, US – Hot-Rolled Steel, para. 118.
319 Panel Report, Korea – Certain Paper, para. 7.157.
320 Appellate Body Report, United States – Final Dumping Determination on Softwood Lumber from
Canada – Recourse to Article 21.5 of the DSU by Canada ("US – Softwood Lumber V (Article 21.5 – Canada)"),
WT/DS264/AB/RW, adopted 1 September 2006, para. 142; Appellate Body Report, US – Hot-Rolled Steel ,
para. 196.

argues that such a result is impermissible because it would not be even-handed and fair. Moreover,
Norway submits that investigating authorities must consider all categories of interested parties
because pursuant to Article 9.4 of the AD Agreemen t, the anti-dumping duty that may be imposed on
non-investigated parties is based on the determinations of dumping made in respect of the investigated
parties.
7.146 Finally, Norway argues that even assuming that the European Communities was entitled to
exclude all non-producing exporters from its examination of dumping, the European Communities
nevertheless acted inconsistently with Article 6. 10 by failing to investigate the ten producers or
producer/exporters with the largest volume of sa lmon exports to the European Communities. In
particular, Norway asserts that th e European Communities left two producers (Salmar and Bremnes)
out of its investigation despite the fact that their exports were greater than other producers included in
the European Communities' investigation.
(ii) European Communities
7.147 The EC acknowledges that it chose to investigate only producers and exporting producers ,
and that it excluded all non-producing exporters from its examination of dumping. However,
according to the EC, the AD Agreement not only perm its IAs to focus an examination of dumping on
producers and exporting producers rather than non -producing exporters, but it also identifies a
preference for doing so. The EC presents a number of arguments in support of this position. First, the
European Communities argues that the language of Article 6.10 does not compel IAs to examine non-
producing exporters. In this regard, the EC argues that the reference to "exporter or producer" in
Article 6.10 (as well as in other provisions of th e AD Agreement) could be read in "a disjunctive
manner so that if a margin is calculated for [a ] producer then no corresponding margin need be
calculated for the exporter of the goods in question".
321 In this regard, the EC argues that, under
certain circumstances, to calculate a margin of dumping for both exporters and producers would result
in double-counting and risk applying two sets of anti-dumping duties to a single consignment of
imports.
7.148 Secondly, the EC finds support for its position that a focus on producers is preferable under
the AD Agreement in the language of Article 2 of the AD Agreement, which it argues shows that the
notion of normal value is closely connected to the calculation of production costs, i.e., a producer's
pricing behaviour, rather than an exporter. Moreover, the EC argues that a preference for
investigating producers over exporters can also be found in Article 2.5 of the AD Agreement. In
particular, the EC points to the fact that pursuan t to this provision, IAs are entitled to compare the
export price from an exporter in an intermediate count ry with the price of a domestic sale made by a
producer in the country of origin, notwithstanding the fact that the exporter may have made sales in
the intermediate country at issue. The EC also argues that a preference for assessing margins of
dumping for producers and not exporters would increase the effectiveness of anti-dumping measures,
a consideration that the EC argues must be regarded as part of the object and purpose of the
AD Agreement.
7.149 The EC responds to Norway's allegation that the exclusion of non-producing exporters
rendered its determination biased by arguing that the Appellate Body reports relied upon by Norway
give no support to the proposition that the mere possibility of different dumping margin outcomes
makes a particular methodology bi ased and illegal. In any case, th e EC argues that Norway has
provided no factual basis for its claim that the Eu ropean Communities should have concluded that the
exclusion of exporters from the sample would necessarily have distorted the outcome of the
investigation.

321 EC, FWS, para. 142.

7.150 The EC submits that the identification of what level of exports can "reasonably be
investigated" may be determined in the light of the consultation procedure that is envisaged under
Article 6.10.1 of the AD Agreement. According to the EC, this is exactly what happened in the
present case: it chose, on the basis of the facts before it, the 10 producers and producing exporters that
made the largest volume of exports to the EC, in the light of the representations made by the
Norwegian Seafood Federation ("FHL") during the course of its consultations. In this regard, the EC
asserts that Bremnes was not included in its investig ation, because it was not identified by FHL in the
list of companies it requested the EC to use for lim ited investigation purposes. As regards Salmar, a
company that the EC acknowledges was included in FHL's list, the EC argues that it had no
information on the level of exports made by that company and no reason to suspect that these would
be large.
(c) Arguments of the third parties
(i) Hong Kong, China
7.151 Hong Kong, China argues that the use of samp ling techniques for the purpose of selecting the
parties examined in an AD investigation cannot result in the exclusion of an entire category of
interested parties. Hong Kong, China argues that such a result finds no support in Article 6.10 nor
any other provision of the AD Agreement. According to Hong Kong, China, sampling is an exception
to the general rule of Article 6.10 which requires investigating authorities to determine an individual
dumping margin for each known exporter or producer. Th erefore, it must be strictly interpreted. In
the view of Hong Kong, China, sampling deprives interested parties of their usual due process rights,
and to the extent that the composition of the inves tigated parties has a significant impact on the final
margins of dumping imposed on selected as well as non-selected parties through the application of
Article 9.4, the criteria used to select the parties investigated must guarantee that the selected parties
are representative of all exporters and producers fro m the country of export. Finally, Hong Kong,
China also contends that the exclusion of exporters, or other categories of interested parties, may lead
to biased results in dumping determination, which ru ns contrary to the obligation under Articles 2 and
9 to treat exporters and producers evenhandedly as we ll as the requirement of providing all interested
parties a full opportunity for the defence of their interests in accordance with Article 6.2.
(ii) United States
7.152 The United States argues that Article 6.10 does not specify how an investigating authority is
to arrive at the largest percentage or which comp anies must be included in a sample of interested
parties selected in accordance with the second sampling method possible under Article 6.10.
According to the United States, circumstances may exist in which an investigating authority may
appropriately limit its examination to certain categor ies in accordance with Article 6.10. Therefore,
the United States disagrees with Norway's view that, as a general rule, Article 6.10 precludes an
investigating authority from limiting the selection of investigated parties to particular categories.
Finally, the United States contends that the extent to which the companies se lected by the European
Communities were representative of the industry as a whole, such as through th eir cost structure and
pricing behavior, is immaterial to evaluating th e WTO-consistency of the European Communities'
sampling decision, because Article 6.10 does not oblige investigating au thorities usi ng the second
sampling methodology to generate a "statistically valid" sample, a requirement that applies only when
the first sampling methodology is used.
(d)
Evaluation by the Panel
7.153 Norway contends that the limitation of the EC 's dumping investigation to ten interested
parties that were either producers or integrated producer-exporters of salm on was inconsistent with
Article 6.10 of the AD Agreement because it did not result in an examination of the largest percentage

of the volume of salmon exports to the European Co mmunities that could reasona bly be investigated.
Norway argues that the EC failed to comply with Article 6.10 because: (i) six of the non-producing
exporters not investigated made gr eater export sales to the EC than eight of the companies that were
investigated; and (ii) two producers ([[XXX]] an d [[XXX]]) not included in the ten companies
investigated made greater export sales to the EC th an several of the producer and integrated producer-
exporter companies that were investigated. Th ese two factual assertions (which the EC does not
contest), form the basis of the two separate lines of argument that Norway uses to substantiate its
claim. We will address the merits of each of these arguments in turn. However, before doing so, we
briefly set out some of the pertinent facts surroundi ng the investigating authority's decision to conduct
a limited investigation and its selection of the interested parties to investigate.
(i) Facts
7.154 The possibility that the investigating authority would conduct its investigation into imports of
farmed salmon from Norway on the basis of a limited number of interested parties was first publicly
communicated in the Notice of Initiation publishe d in the Official Journal on 23 October 2004.
Shortly thereafter, on 26 October 2004, the investiga ting authority met with a representative of the
Norwegian Seafood Federation ("FHL"), who also acted on behalf of the Norwegian Seafood
Association,
322 to discuss the initiation of the investigation.
7.155 In response to the request for information made in the Notice of Initiation, the investigating
authority received information from 102 companies by the 8 November 2004 deadline. 323 These
included the responses of 89 companies to the "sampling questionnaire", coordinated through the
FHL.
324 Of the 102 companies that provided informat ion, 38 were producers of farmed salmon that
also exported farmed salmon to the European Communities either directly or via unrelated
exporters.325
7.156 On 16 November 2004, the investigating authority asked a number of companies a series of
follow-up questions focused on clarifying the rela tionships between companies operating in the
Norwegian salmon industry.326 One further meeting between the investigating authority and the FHL
was held on 17 November 2004 to discuss the identity of the companies that would be selected for
examination.327 At this meeting, the FHL was apparently informed that the investigating authority
intended to focus its examination at the producer level, and exclude all non-producing exporters from
its investigation. 328 On 18 November 2004, the FHL sent an e-mail to the investigating authority
referring to the meeting of 17 November 2004 and proposing ten companies for inclusion in the
investigating authority's limited investigation.329
7.157 On 22 November 2004, the investigating authority informed the FHL of the ten companies
that would form part of its limited investigation.330 On 24 November 2004, the FHL submitted a letter
to the investigating authority requesting that three of the companies selected for the investigation be
replaced with two non-producing exporters and one producer. 331 By letter of the same date, the
investigating authority responded to the FHL indica ting that it intended to pursue its "normal anti-

322 See, Note for the File , 28 October 2004, Exhibit EC-55; NSL Power of Attorney ,
22 November 2004, Exhibit EC-56.
323 Provisional Regulation, Recital 16
324 Exhibit NOR-38.
325 Provisional Regulation, Recital 15
326 Exhibit NOR-51.
327 EC, FWS, para. 176.
328 See, Letter of the European Communities to the FHL, dated 24 November 2004, Exhibit EC-6.
329 Exhibits EC-4 and EC-52.
330 Exhibit NOR-39.
331 Exhibit NOR-47.

dumping policy" of "performing dumping calculati ons and identify dumping margins on producers
rather than exporters" and confirming the compan ies originally selected for the investigation. 332 This
letter also explained that the selected companies wo uld receive a copy of the questionnaire by e-mail
to be sent on the same day.
7.158 On 2 December 2004, the Norwegian Government delivered a Note Verbale to the EC, in
which it argued that the investigating authority's sel ection of companies for the limited investigation
was not "representative". It urged the EC to recons ider the selected companies, in the light of the
representations made by the FHL. In th is regard, the Norwegian Government's Note Verbale
identified the same ten companies listed in the FHL's final proposal to the investigating authority, as a
selection of companies that would achieve a "representative" outcome. 333 The FHL submitted another
letter to the investigating authority on 3 December 2004, in which it stated that it did not regard the
companies finally selected for the limited investig ation to be "representative for the Norwegian
salmon industry", and that it considered the investigating authority's selection unilateral.334
7.159 The investigating authority's decision to carry out its investigation at the level of producers
and producer exporters was confirmed in the Provisional Regulation, which in pertinent part, reads:
"In view of the large number of companies involved, it was decided to make use of
the provisions for sampling and, for this pur pose, a sample of companies, with the
largest export volumes to the European Communities was chosen, in consultation
with the Norwegian authorities. There were some issues that could not be resolved
with the Norwegian authorities, in particular concerning the exclusion from the
sample of certain exporters with relati vely low export volumes to the European
Communities of the product concerned. The requests made by the Norwegian
authorities would have meant that the princi ple for selection of the sample, i.e. to
include as many companies that could reas onably be investigated within the time
available with the largest possible represen tative volume of exports, would not have
been respected. Therefore those claims coul d not be accepted. The sample comprises
the ten largest Norwegian exporting producer s, representing almost 80 per cent of the
export volume to the Communities of all co-operating exporting producers."
335
7.160 Thus, the investigating authority decided to i nvestigate ten companies chosen from a pool of
interested parties that was made up of 38 producer s and integrated producer-exporters. This pool of
interested parties excluded all non-producing exporters.
(ii) The exclusion of non-producing exporters of farmed salmon from the investigation
7.161 The first argument made by Norway in support of its Article 6.10 complaint is centred on the
investigating authority's exclusion of all non-producing exporters from the investigation. In
particular, Norway argues that the investigating au thority's selection of the ten interested parties
investigated was inconsistent with the second limite d investigation technique described in the second
sentence of Article 6.10 because the investigating authority excluded, ab initio , all non-producing
exporters from even being considered for selection. Article 6.10 reads:

332 Exhibit EC-6. This exhibit notes that the inves tigating authority's intention to follow "normal anti-
dumping policy" was also made known to FHL at the meeting of 17 November 2004. Moreover, the
investigating authority communicated its intention to " carry out a normal investigation in line with normal
policy applied in AD cases" and make "dumping calculations for each producer in the sample" in a letter to the
FHL dated 23 November 2004, Exhibit EC-5.
333 Exhibit EC-59.
334 Exhibit EC-53.
335 Provisional Regulation, Recital 17.

"The authorities shall, as a rule, determine an individual margin of dumping for each
known exporter or producer concerned of th e product under investigation. In cases
where the number of exporters, producers, im porters or types of products involved is
so large as to make such a determination impracticable, the authorities may limit their
examination either to a reasonable number of interested parties or products by using
samples which are statistically valid on the basis of information available to the
authorities at the time of the selection, or to the largest percentage of the volume of
the exports from the country in question which can reasonably be investigated."
7.162 Article 6.10 first sentence requires that, as a ru le, an individual margin of dumping must be
determined for "each known exporter or producer concerned". The second sentence provides that
when "such a determination" – that is, when a de termination of an indivi dual margin of dumping for
"each known exporter or producer concerned" – woul d be impracticable because of the large number
of, e.g., exporters and/or producers, one of two fo rms of limited examination may be possible. In
other words, when there is a large number of "known exporter[s] or producer[s] concerned", an
investigation may be limited to a smaller number of the "known exporter[s] or producer[s] concerned"
through the application of one of two limited examin ation techniques. In our view, it follows that the
starting point for the application of the limited examination techniques set out in the second sentence
of Article 6.10 is the pool of interested parties making up all of the "known exporter[s] or producer[s]
concerned" for whom, because of their large number, it is "impracticable" to calculate an individual
margin of dumping. Thus, the "statistically va lid" sample referred to in the second sentence of
Article 6.10 is a "statistically valid" sample of all of the "known exporter[s] or producer[s] concerned"
for whom it is "impracticable" to calculate an indi vidual margin of dumping. Likewise, the "largest
percentage of the volume of the exports ... which can be reasonably investig ated" is the "largest
percentage of the volume of the exports ... which can be reasonably investigated" in respect of all of
the "known exporter[s] or producer[s] concerned" fo r whom it is "impracti cable" to calculate an
individual margin of dumping.
7.163 All this implies that the identification of the pool of "known exporter[s] or producer[s]
concerned" will be central to the selection of inte rested parties that is envisaged in the second
sentence of Article 6.10. It follows that an assessme nt of whether a selection of interested parties has
been made consistently with the second sentence of Article 6.10 may involve checking whether the
starting pool of interested parties from which that selection was made is permissible. If there has been
an error in the identification of the starting pool of "known exporter[s] or producer[s] concerned", this
would, in our view, invalidate the selection of inte rested parties carried out under the terms of the
second sentence of Article 6.10, at least to the exte nt that it resulted in a lower percentage of the
volume of exports being investigated than could ot herwise have reasonably been achieved. To this
extent, we find that the exclusion of a particular category of interested parties from even being
considered for selection in the group of interested parties investigated is an issue that falls squarely
within the scope of Article 6.10 of the AD Agreement.
7.164 Thus, the threshold question that is before us under this part of Norway's claim is whether it is
permissible under Article 6.10 of the AD Agreement for an investigating authority to exclude non-
producing exporters from the "known exporter[s] or producer[s]" that serve as the starting point for
the selection of the interested parties investig ated pursuant to the second limited investigation
technique described in the second sentence of Article 6.10.
7.165 We recall that the first sentence of Article 6.10 requires investigating authorities to determine
an individual margin of dumping for "each known exporter or producer concerned" (underline
added).336 The word "or" has multiple grammatic al functions, the most common being the

336 The full text of Article 6.10 is reproduced above at para. 7.161.

introduction of two or more alternatives into a phrase or sentence. 337 This suggests that the obligation
set out in the first sentence of Article 6.10 to "d etermine an individual margin of dumping" could be
understood as leaving open the possibility to determ ine an individual margin of dumping for only
"each known exporter" or, alternatively, only "each known ... producer". In practice, the choice of
alternatives (where the exporters and producers are dis tinct) may be dictated by the particular facts of
the proceeding at issue. For in stance, when there are only known exporters or only known producers,
it may be possible to investigate, and hence determ ine an individual margin of dumping, for only one
of these categories of interested parties. However, on its face, nothing in the text of the first sentence
of Article 6.10 indicates that a choice of alternativ es may not also be possible when there are both
known exporters and known producers. Indeed, such a possibility follows naturally from the ordinary
meaning of this provision's language. A second usag e of the word "or" is to connect two words
denoting the same thing. 338 Thus, the obligation to determine an individual margin of dumping for
each known exporter or producer may also be understood as an obligation to determine an individual
margin of dumping for one and the same entity, a result that would obtain whenever a known exporter
was also a producer.
7.166 In our view, neither of these two grammatical f unctions of the word "or" supports Norway's
interpretation of Article 6.10. In this regard, we find it particularly telling that the drafters of the
AD Agreement chose to use the word "or" and not the word "and" in agreeing on the text of this
provision. This choice of language suggests the drafters intended that Members be left with discretion
to choose the focus of their investigations. I ndeed, though it is clear that the AD Agreement
envisages that the pricing behaviour of both exporters and producers may be examined for the purpose
of determining the existence of dumping, there is no preference to investigate one or the other. The
provisions of the AD Agreement relating to the cal culation of normal value and export price apply
equally to investigations in respect of both types of interested parties.
7.167 Thus, the ordinary meaning of the text in Article 6.10 suggests that Members may choose to
focus their investigations on either all known expor ters, all known producers, or all known exporters
and producers. We see that there may well be important reasons for making such a choice. For
instance, in certain circumstances, a focus on bot h known exporters and know n producers may result
in the calculation of two margins of dumping in re spect of the same export transactions. This may
arise whenever a producer makes indirect export sal es through a non-related exporter (or trader) that
sells part of the products purchased from the producer on the domestic market.
339 By including both
the exporter and the producer in the investigation, Article 6.10 would dictate that an individual margin
of dumping would have to be calculated for each entity . Thus, two determinations of the existence of
dumping would have to be made for the same export transactions.
7.168 We do not believe that the first sentence of Artic le 6.10 was intended to be interpreted in a
manner that would require two, potentially very diff erent, determinations of the existence of dumping
in respect of the same export transactions. Thus, in our view, the ordinary meaning of the first
sentence of Article 6.10 suggests that the "known expo rter[s] or producer[s]" that serve as the starting

337 New Shorter Oxford English Dictionary, Clarendon Press, 1993.
338 New Shorter Oxford English Dictionary, Clarendon Press, 1993.
339 In its response to Panel Question 77, Norway ar gues that a sale by a producer to an unrelated
exporter (or a trader) is a domestic sale, which is "not relevant in assessing a producer's export pricing behaviour
for the purpose of a dumping determination". However, Article 2.1 makes clear that it is only sales that are
"destined for consumption in the exporting country" that may qualify as domestic sales. Thus, where a producer
sells to an unrelated exporter (or a trader) knowing that the product will be exported, that sale cannot, in our
view, qualify as a sale intended for domestic consumption. Such a sale could more properly be characterised as
a producer's indirect export sale. In respect of the pr oceeding in dispute, we note that Norway states that,
"Norway's producers sell the vast majority [70%] of pr oduction to the EC, and just a tiny fraction is sold
domestically". Norway, Comments on the European Co mmunities' Answers to Panel Questions 104, 105
and 106.

point for the selection of the interested parti es investigated under either of the two limited
investigation techniques described in the second sentence of Article 6.10, do not always
 have to be all
known exporters and all known producers. We see no provision in the AD Agreement that would
explicitly prohibit such interpretation of Article 6.10.
7.169 Norway contends that certain statements of the Panel in Korea – Certain Paper , and the
Appellate Body in Mexico – Anti-Dumping Measures on Rice, indicate that the word "or" should have
a conjunctive meaning, implying that all known exporters and all known producers must always serve
as the starting point for the selection of a limited num ber of interested parties to investigate pursuant
to Article 6.10.340 The statements that Norway relies upon are the following:
"We note that Article 6.10 mentions 'exporte rs' and 'producers' of the subject product
and requires that an individual margin be calculated for each of them."341
"'[M]argins' means the individual margin of dumping determined for each of the
investigated exporters and producers of the product under investigation, for that
particular product."342
7.170 We do not agree with Norway's characterisation of the relevance of the above statements. In
both cases, the question of whether investigating authorities may be entitled to exclude known
exporters or known producers from an investigation in to the existence of dumping was not at issue.
Indeed, in both cases, the statements in question were made in the context of claims relating to the
treatment of interested parties that had already been included in the relevant investigations. Thus, in
Korea – Certain Paper , the Panel's statement was made when deciding whether Article 6.10 of the
AD Agreement permits an investigating authority to treat two or more separate legal entities under
investigation as a single exporter and to determine an individual margin of dumping for that
exporter.343 In Mexico – Anti-Dumping Measures on Rice , the Appellate Body's statement was made
in the context of a claim that the Mexican investiga ting authority acted inconsistently with Article 5.8
of the AD Agreement when it failed to terminate the anti-dumping investigation in respect of two
companies that it had found were not dumping.
7.171 Norway also argues that the word "or" shoul d have a conjunctive meaning because, in its
view, the same word has a conjunctive meaning when it appears in Articles 2.2.1.1, 2.2.2, 2.2.2(i),
2.2.2(ii), 2.2.2(iii), 4.1(i), 5.2( ii), 6.1.1, 6.10. 1, 6.10.2, 6.11, 9.4, 9.5 and 12.2.2 of the
AD Agreement.344 We do not share Norway's opinion. Becau se of the nature of the functions of the
word "or", its meaning in different provisions of the AD Agreement will very much depend upon the
obligations at issue and the specific context in which it appears. In this regard, we note that several of
the provisions cited by Norway establish obligations on Members in respect of the treatment of
exporters and/or producers that may already be s ubject to investigation. Thus, for instance, the
obligations described in Articles 2.2.1.1, 2.2.2, 2. 2.2(i), 2.2.2(ii) and 6.1.1 apply in respect of the
"exporter or producer under investigation", the "expor ter or producer in question", the "exporters or
producers subject to investigation" of the "[e] xporters or foreign producers receiving questionnaires
used in an anti-dumping investigation". We fail to see how these references relating to the treatment
of exporters or producers that have already been included in an investigation assist in understanding
whether investigating authorities may be entitled to exclude known exporters or known producers
from an investigation of dumping, and hence the calculation of individual margins, under Article 6.10.

340 Norway, Answers to Panel Questions 75 and 76.
341 Panel Report, Korea – Certain Paper, para. 7.157.
342 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 216, citing Appellate
Body Report, US – Hot-Rolled Steel, para. 118.
343 Panel Report, Korea – Certain Paper, para. 7.157.
344 Norway, Answers to Panel Questions 75 and 76.

7.172 In addition, if the word "or" in Article 4.1(i) was given the conjunctive meaning that is argued
by Norway, it would only be domestic producers related to both exporters and importers that could be
disregarded for the purpose of identifying the "domestic industry". In other words, producers related
only to exporters or only to importers could not be excluded from the "domestic industry". However,
such a outcome is not supported by the ordinary meaning of the language of this provision.345
7.173 Likewise, the ordinary meaning of the word "or" does not imply that it must have a
conjunctive meaning, in all circumstances, in the cont ext of Articles 5.2(ii) and 9.5. In the case of
Article 5.2(ii), we see no reason why an applicant mu st be compelled to provide information on the
identity of both known exporters and producers, especially if it considers that it would be appropriate
to focus the investigation only on one or the other interested parties. Likewise, we see no reason why
an investigating authority that focused its original investigation on only producers in accordance with
Article 6.10, could not also permissibly focus on producers for the purpose of any newcomer review
conducted pursuant to Article 9.5.346
7.174 Norway also relies upon Article 12.2.2, where the wo rd "or" is used five times in the context
of the obligation to publicly notify the "conclusion or suspension" of an investigation whenever there
are findings providing for the imposition of a "d efinitive duty or the acceptance of a price
undertaking". Given that the "conclusion" of an investigation and the "suspension" of an investigation
are mutually exclusive actions, and that an investigation cannot result in both the imposition of a
"definitive duty" and the "acceptance of a price undertaking" for any individually investigated
company, we cannot see how the word "or" used in these circumstances has the "conjunctive"
meaning that Norway contends. Furthermore, we note that the term "exporter or producer" is not
found in Article 12.2.2. However, Article 12.2. 2 does contains a reference to "exporters and
importers". This would seem to imply that when th e drafters of the AD Agreement wanted to use the
word "and" and not the word "or", they did so.
7.175 We also find contextual support for our reading of the text of the first sentence of Article 6.10
in Article 2.5 of the AD Agreement. We consider signi ficant that the drafters of this provision of the
AD Agreement made explicit allowance for the possib ility that Members may, in certain situations,
focus their investigation into the existence of dumping on the pricing behaviour of producers,
notwithstanding the existence of known exporters responsible for making the export sales under
investigation. Article 2.5 reads:
"In the case where products are not imported directly from the country of origin but
are exported to the importing Member from an intermediate country, the price at
which the products are sold from the country of export to the importing Member shall
normally be compared with the comparable pr ice in the country of export. However,
comparison may be made with the price in th e country of origin, if, for example, the
products are merely transshipped through the country of export, or such products are
not produced in the country of export, or th ere is no comparable price for them in the
country of export."
7.176 This provision describes how investigating au thorities may perform a comparison between
export price and normal value to determine whethe r sales made by an exporter, operating out of a
country that is different from the country of origin of the products sold, are made at dumped prices.

345 Norway's view of the meaning of the word "or" would mean that the conditions set out in
footnote 11 for determining whether producers shall be deemed to be related to exporters or importers under
Article 4.1(i) must be cumulative, even though a plain reading of the language of this footnote indicates
otherwise.
346 Similar considerations would apply in respect of the usage of the word "or" in Articles 6.10.1
and 6.10.2.

In other words, Article 2.5 provides guidance on how to determine the existence of dumping in
respect of sales made by an exporter located in a different country to the country of production of the
exported products.
7.177 The first sentence prescribes that where products are exported to an importing country from a
country that is not the country of origin (an interm ediate country), the price at which the products are
sold from the country of export shall normally be compared with the comparable price in the country
of export. Thus, the first sentence of Article 2.5 es tablishes a general rule th at the pricing behaviour
of an exporter operating from an intermediate country will normally be the basis for determining the
existence of dumping in respect of products exported from the same intermediate country.
7.178 However, the second sentence of Article 2.5 stipulates that the normal methodology described
in the first sentence may be replac ed with one that compares the pr ice at which the products are sold
from the country of export with the price in the count ry of origin, whenever any one of at least three
circumstances arise: the products at issue are merely transshipped through the country of export; the
products are not produced in the country of export; or, there is no comparable price for the products in
the country of export. In effect, the methodolo gy described in the second sentence of Article 2.5
could result in the determination of the existen ce of dumping through a comparison of the price of a
producer's indirect export sales made through an exporter in an intermediate country with the price of
the same producer's domestic sales. To this extent , Article 2.5 envisages that investigating authorities
may be entitled to focus their determination of the existence of dumping on a producer's pricing
behaviour, notwithstanding the exis tence of a known exporter that is responsible for the export sales
under investigation.
7.179 Norway also argues that its interpretation of Ar ticle 6.10 is supported by the fact that the
exclusion of all non-producing exporters from an investigation could give rise to distortions that make
an affirmative dumping determination more likely. According to Norway, because investigating
authorities must act in an even-handed and fair ma nner, an interpretation of Article 6.10 that could
make a determination of dumping more likely is impermissible.
347 Norway asserts that in the present
case, the investigating authority was aware of this possibility because it had been informed by the
FHL during the course of the proceeding that Norw egian "independent exporters (traders)" were
"known for low trading costs".348 We first note that Norway has provided no basis to conclude that in
general a decision to focus on producers rather th an exporters would likely result in higher dumping
margins, nor can we see any reason to so conclude; this would depend entirely upon the facts. 349 Nor,
in our view, is the FHL's unsubstantiated assertion as to Norwegian exporters' "trading costs" in this

347 Norway, FWS, para. 316, citing Appellate Body Report, US – Softwood Lumber V (Article 21.5 –
Canada), para. 142; and Appellate Body Report, US – Hot-Rolled Steel, para. 196.
348 Exhibit NOR-48. Norway also argues (Norway, FWS, para. 317) that the European Commission
recognised that "exporters have lowe r costs than producers because they ha ve different business activities" in a
previous anti-dumping investigation into farmed salmon from Norway that was conducted in 1997. However,
the passages from the EC's findings in this investigation that Norway cites as support for its proposition reveal
only that the European Commission recognised that farmers and traders of farmed salmon in Norway "often
defend divergent business interests". See, Norway, FWS, paras. 301-304.
349 To the extent that Norway may be arguing that the normal value of salmon exporter's domestic sales
will invariably be lower than the normal value of a salmon producer, it is not entirely clear to us that this would
always be the case. While recognisin g that the resolution of Norway's claim does not requires us to make any
specific findings about how to calculate a non-producing exporter's normal value, we note that one of the
options available to investigating authorities under Article 2.2 of the AD Agreement is to construct normal value
on the basis of "the cost of production in the country of origin plus a reasonable amount for administrative,
selling and general costs and for profits". In addition, Article 2.2.1 of the AD Agreement explicitly envisages
that domestic sales (of an exporter or a producer) that are below "(fixed and variable) costs of production plus
administrative, selling and general costs" may be treated as being outside of the ordinary course of trade by
reason of price.

particular case enough to demonstrate that the investigating authority's exclusion of all non-producing
exporters from the investigation resulted in the in clusion of interested parties with higher normal
values, relative to export prices, than would otherw ise have been the case, thus making an affirmative
determination of dumping more likely.
7.180 Finally, Norway argues that contextual support for its interpretation of Article 6.10 may also
be found in Article 9.4 of the AD Agreement, which Norway contends requires investigating
authorities to consider all categories of interested parties for inclusion in a limited investigation. 350
We are not convinced by Norway's argument. First, we note that nothing in the text of Article 9.4
requires that the anti-dumping duties applied to non-i nvestigated parties must be derived from the
margins of dumping calculated for the investigated pa rties that have been chosen from all categories
of interested parties. Indeed, Article 9.4 addresses the level of anti-dumping duties that may be
applied to non-investigated parties, not the selecti on of investigated parties. Secondly, as we have
observed above, there may be valid reasons for an investigating authority to exclude a category of
interested parties from an investigation (for exampl e, avoiding the determination of two margins of
dumping for the same export transactions). Thus , it does not automatically follow that an
investigating authority would be acting unfairl y if it were to apply anti-dumping duties on non-
investigated parties on the basis of the margins of dumping determined for investigated parties that
were not chosen through a consideration of all categories of interested parties.
7.181 For all of the above reasons, and in the light of standard set out in Article 17.6(ii) of the
AD Agreement, we do not agree with Norway wh en it claims that the EC's interpretation of
Article 6.10 is impermissible. We therefore dismi ss Norway's claim that the investigating authority's
selection of the ten interested parties investigat ed was inconsistent with the second limited
investigation technique described in the second se ntence of Article 6.10 because the investigating
authority excluded, ab initio, all non-producing exporters from even being considered for selection.

(iii) The investigated parties did not constitute the "l argest percentage of exports that could
reasonably be investigated"
7.182 Norway argues that even assuming that the EC was entitled to exclude all non-producing
exporters from the investigation, the producers and producer-exporters finally selected did not account
for the largest volume of exports that could be reasonably investigated because two producers,
Bremnes and Salmar, which exported mo re than several of the investig ated companies, were left out
of the EC's limited investigation. The question befo re us under this part of Norway's claim is whether
the investigating authority acted consistently with the second sentence of Article 6.10 by not
investigating two producers of salmon that allegedl y exported a larger volume of salmon to the EC
than several of the companies actually investigated.
 Bremnes

7.183 The European Communities asserts that Brem nes was not investigated because it was not
among the companies that the FHL requested be in cluded in the investigation during consultations. 351
It argues that in identifying the co mpanies that would be subject to its limited investigation – i.e., in
determining the largest percentage of the volume of exports to the EC which could reasonably be
investigated – it gave preference to the companies proposed by FHL to the extent that they matched
its stated policy of investigating producers or producer/exporters. 352 The European Communities
argues that it was entitled to do so because, in its view, Article 6.10.1 of the AD Agreement envisages

350 Norway, FWS, para. 318.
352 EC, Answer to Panel Question 74.

the possibility that investigating authorities may take into account the representations of exporters and
producers concerned when selecting the entities that will be the subject of a limited investigation.
353
7.184 Norway argues that Article 6.10.1 is a procedural obligation which cannot affect the
application of the substantive obligation to select by the largest percentage of the volume of exports
that can be reasonably investigated. 354 To this end, Norway argues that the consultations that are
envisaged under Article 6.10.1 are intended to address issues that go to ensuring that the substantive
obligations in Article 6.10 are complied with, in cluding "(1) which sampling option in Article 6.10
should be used; (2) the accuracy and interpretati on of the data before the authority (e.g., the
significance of the export data in the sampling returns, the identity of the largest exporters, etc.); and
(3) how many companies can reasonably be investigated".355
7.185 Article 6.10.1 reads:
"Any selection of exporters, producers, impor ters or types of products made under
this paragraph shall preferably be chosen in consultation with and with the consent of
the exporters, producers or importers concerned."
7.186 Article 6.10.1 requires that the selection of inter ested parties for the purpose of either of the
two types of limited investigation described in the second sentence of Article 6.10 "shall preferably"
be undertaken in "consultation with and with the consent of" the relevant exporters, producers or
importers. On its face, this requirement reveals a preference for selecting the interested parties that
will be subject to a limited investigation in cl ose cooperation with the exporters, producers or
importers concerned.
7.187 To give this preference the meaning that Norway advocates would render the selection of
interested parties by the largest percentage of the volume of exports which can reasonably be
investigated a purely mathematical exercise. It would mean that only the largest exporting companies
could ever be selected for investigation through the application of this limited examination technique.
However, to the extent that it refers to the larg est percentage of the volume of exports which can
"reasonably" be investigated, the text of the sec ond sentence of Article 6.10 suggests that such an
outcome was not intended. In particular, the word "reasonably" implies that the objective of this
limited examination technique is to identify the la rgest percentage of the volume of exports that it
would be reasonable for an investigating authority to investigate.
7.188 In our view, the volume of export sales that may be reasonable for an investigating authority
to investigate is a question that must be asse ssed on a case-by-case basis, taking into account all
relevant facts that are before the investigating auth ority, including the nature and type of interested
parties, the products involved and the investigating authority's own investigating capacity and
resources. We see no reason why this assessment might not also be informed by the matters raised
during consultations pursuant to Article 6.10.1.
7.189 Unlike Norway, we do not believe that the possi bility that the investigated parties may be
selected without the consent of the interested parties supports Norway's position.
356 We doubt that the
drafters intended to encourage a mechanism for consultations while limiting the ability of the
investigating authority to take into account the preferences expressed by exporters, producers and
importers in those consultations. This does not mean that all information submitted or requests made
during such consultations must be accepted by an investigating authority. There may well be

353 EC, FWS, paras. 161-167.
354 Norway, Answer to Panel Question 53.
355 Norway, Answer to Panel Question 53.
356 See, Norway, Answer to Panel Question 53.

disagreement on part or all of the matters raised dur ing consultations. However, ultimately, what will
be important for the purpose of compliance with Article 6.10, is that the investigated parties that are
selected account for the largest percentage of the volume of exports which can reasonably be
investigated, in the light of all relevant facts a nd circumstances, including those presented during any
consultations, regardless of whether there is the co nsent of the interested parties involved in those
consultations.
7.190 In the present case, consultations took place be tween the investigating authority and the FHL
with a view to selecting the investigated parties. Following two meetings with the investigating
authority,
357 the FHL submitted by e-mail dated 18 November 2004 a list of interested parties that it
considered should be included in the investigation. 358 This list did not identify Bremnes as a potential
candidate for the investigating authority's limited investigation. It proposed ten companies for
selection, two producer-exporters, f our exporters and four producers. 359 One of the producers was a
company that the FHL knew had reported fewe r export sales to the EC than Bremnes. 360 To this
extent, the FHL's first proposed list of potential limited investigation candidates did not signal a
concern with the possibility that producers with fe wer export sales to the EC than Bremnes could be
investigated. Indeed, according to the FHL's own da ta submitted with its proposal, only four of the
companies it had nominated for selection were among the 15 largest Norwegian exporters of
salmon.361
7.191 By letter dated 22 November 2004, the investigating authority informed the FHL of the
identity of ten companies selected for the limited investigation, confirming that it had decided to focus
its investigation on only producers and exporting-producers. 362 The selected companies included four
of the companies that the FHL had proposed (two producer-exporters and two producers). 363 T h e
investigating authority also included one other producer company that, although not identified by the
FHL, was part of the group of companies belongi ng to one of the four exporters it had proposed.
364
The remaining five companies selected by the invest igating authority were not included in the FHL's
original proposal.
7.192 In a second proposal to the investigating authority, the FHL "in the spirit of positive
cooperation and serious attempt to find a common solution", 365 agreed to the inclusion of seven of the
ten companies identified by the investigating au thority in its letter of 22 November 2004, on the
condition that three selected companies be re placed by two non-produc ing exporters and one
producer.366 Notably, the FHL did not contest the fact that Bremnes was not in cluded in the selection
of companies, even though it was aware that the vo lume of exports of the interested parties would

357 The first meeting was held on 26 October 2004 (Exhibit EC-55); and the second meeting on
17 November 2004 (Exhibit NOR-39).
358 Exhibits EC-4 and EC-52; Exhibit NOR-47.
359 Exhibits EC-4 and EC-52.
360 The producer in question was La ngfjordlaks. In its "sampling questionnaire" response, which was
submitted to the investigating authority through the FHL, Langfjordlaks reported export sales to the EC of
[[XXX]] kgs. Bremnes reported export sales to the EC of [[XXX]] kgs. See, Exhibit NOR-38.
361 Exhibit NOR-47.
362 The investigating authority's intention to follow its "normal anti-dumping policy" was apparently
first made known to FHL at the meeting of 17 November 2004. Exhibit EC-6.
363 Marine Harvest Norway AS, Fjord Seafood Norway AS / Fjord Seafood Sales AS, Nordlaks
Oppdrett AS and Sinkaberg-Hansen.
364 Hydroteck AS, part of the Leroy Seafood Group AS.
365 Exhibit NOR-47.
366 Exhibit NOR-47. The two non-producing exporters were Hallvard Leroy AS and Seabon AS. The
producer was Salmar AS.

play a central role in the investigating authority's selection decision,
367 and that Bremnes' export sales
were larger than four of the companies incl uded in the investigating authority's selection. 368 In other
words, the FHL would have accepted a selection of inte rested parties to be investigated that excluded
Bremnes, had the investigating authority agreed to replace three selected companies with the two non-
producing exporters and one producer it had nomin ated. As with its first proposal, the FHL's
conditional acceptance of the investigating authority's selection of companies did not signal a concern
with the possibility that producers with fewer export sales to the EC than Bremnes could be
investigated.
7.193 The investigating authority responded to the FHL's revised proposal by rejecting the
requested modifications to the selected parties, and confirming the ten selected companies. The
investigating authority did not accept the FHL's two non-producing exporter nominations because of
its desire to pursue its "normal anti-dumping pol icy" of "performing dumping calculations and
identify dumping margins on producers rather than exporters". 369 In this regard, the investigating
authority considered that by "selecting 4 integr ated producer/exporters, [it] assured that a large
proportion of the export industry is already covered". 370 The investigating authority dismissed the
FHL's proposal to replace "one of the independent farmers in the south" with "one independent farmer
from the middle of Norway", 371 by stating that, in its view, the selected interested parties already
provided "good geographical coverage of the Norwegian coast".372
7.194 Finally, on 3 December 2004, the FHL sent a nother communication to the investigating
authority informing it that it did not consider the companies finally selected for the limited
investigation to be "representativ e for the Norwegian salmon industry". 373 The letter identified the
same ten companies listed in the FHL's second pr oposal, arguing that only these companies would
make the "sample representative". The details of th e letter reveal that the notion of representativeness
that the FHL had in mind involved the selection of different types of companies (three producer-
exporters, five producers and two non-producing expor ters), of different sizes (large and medium)
from different regions of Norway (south, mid, western and northern coast).
374 Once again, the FHL
did not mention Bremnes in its communication.
7.195 Thus, to the extent that the FHL (i) explicitly requested that companies not among the largest
Norwegian exporters of salmon be included in the li mited examination; and ( ii) conditionally agreed

367 For instance, the Notice of Initiation indicated that the selection of investigated parties would be
conducted pursuant to Article 17 of Council Regulation EC No. 384/96 of 22 December 1995 on protection
against dumped imports from countries not members of the European Community , which identifies two limited
investigation techniques that are similar to those described in Article 6.10 of the AD Agreement as the only
bases for limiting an investigation. One of these consis ts of selecting "the largest representative volume of
production, sales or exports which can reasonably be in vestigated within the time available". In addition, the
investigating authority's letter to the FHL of 22 Novemb er 2004 identifying the "sampled companies" indicates,
inter alia, that the selection ensured "a large coverage" of "exports to the EU25". Exhibit NOR-39.
368 The FHL submitted "sampling questionnaire" responses on behalf of [[XXX]], [[XXX]], [[XXX]],
[[XXX]] and [[XXX]]. These responses showed that [[XXX]] exported a greater volume of sales to the EC than
[[XXX]], [[XXX]], [[XXX]] and [[XXX]] (Exhibit NOR-38).
369 Exhibit EC-6. The investigating authority communicated its intention to follow "normal anti-
dumping policy" also at the meeting of 17 November 2004, and in a letter to the FHL dated 23 November 2004,
Exhibit EC-5. We note that we have already found that Norway has not established that the investigating
authority's exclusion of non-producing exporters from the investigation was inconsistent with Article 6.10. See,
paras. 7.161-7.181.
370 Exhibit EC-6.
371 Exhibit NOR-47.
372 Exhibit EC-6.
373 Exhibit EC-53.
374 The same focus on selection ten companies that were "representative" of the Norwegian salmon
industry is also present in the Norwegian government's Note Verbale of 2 December 2004. Exhibit EC-59.

with the selection of four companies that made fewer export sales to the EC than Bremnes, it is
evident that the FHL considered that a selection of producer companies that would result in a limited
investigation covering less than the largest percenta ge of the volume of exports to the EC that was
mathematically possible would be acceptable. In fact, the FHL (like the Norwegian government 375)
was interested in achieving an investigation into a level of exports to the EC made through ten
companies that it considered would be representative of the Norwegian salmon industry. In this light,
and notably, in the absence of any FHL request to select Bremnes, we find that the investigating
authority did not act inconsistently with Article 6. 10 when, in the light of the consultations it held
with the FHL, it did not include Bremnes in the ten companies selected for its limited investigation.
We therefore dismiss this part of Norway's claim under Article 6.10.
 Salmar

7.196 The European Communities argues th at the investigating authority did not include Salmar in
the limited investigation because at the time of the selection of companies, there was no specific
information before the investigating authority in resp ect of Salmar's volume of exports to the EC. In
particular, the EC notes that Salmar had responded to the "sampling questionnaire" indicating that it
made zero sales for export to the EC; and that it pr ovided no response to the investigating authority's
follow-up questions on company relationships. The EC also asserts that the investigating authority
had no pre-existing knowledge of Sa lmar from its previous trade remedy investigations into farmed
salmon from Norway, and that the FHL, which had coordinated Salmar's re sponse to the "sampling
questionnaire", made no effort to bring the level of Salmar's export sales to the investigating
authority's attention. According to the EC, the FHL consistently presented Salmar as a "producer".
Furthermore, the list of the 15 largest exporters th at was annexed to the FHL's first proposal did not
include Salmar.376
7.197 Norway recognizes that Salmar did not report that it made export sales to the EC in its
response to the "sampling questionnaire". 377 However, Norway considers that there was sufficient
information before the investigating authority to cau se it to suspect that Salmar's exports to the EC
could have been significant. In particular, Norway asserts that the investigating authority knew: (i)
Salmar's volume of production was among Norway's larg est; (ii) a large part of this production had to
be exported because it was several times larger than total Norwegian consumption; (iii) the EC was an
almost certain destination because it is Norway's main export market; and (iv) FHL proposed Salmar,
further signalling that the company was a significant exporter to the EC. In this light, Norway argues

375 Norwegian government Note Verbale of 2 December 2004. Exhibit EC-59.
376 EC, FWS, paras. 188-190; EC, SWS, paras. 79-80; EC, Answers to Panel Questions 11, 74b
and 104.
377 Norway argues that Salmar repo rted zero export sales to the Ec as a direct consequence of the
formulation of the questions in the "sampling questionnaire". In particular, Norway contends that the "sampling
questionnaire" did not explicitly request Norwegian companies to provide information on exports to the EC via
unrelated exporters. (Norway, FWS, para. 325). While we recognize that the questionnaire did not explicitly
ask for information about export sales made through unrelated exporters, it is equally true that it did not
explicitly request information about export sales made through related exporters or directly by the companies
themselves. The relevant sections of the questionnaire asking for export information read: "Turnover in local
currency sold for export to EU 25 – 1/10/03 to 30/09/04" and "Volume in Kg sold for export to EU 25 – 1/10/03
to 30/09/04". We note that faced with the same questionnaire as Salm ar, several other Norwegian companies
that made sales to the EC through unrelated exporters (e .g., [[XXX]], [[XXX]] and [[XXX]]) reported this fact
to the investigating authority in their responses to the questionnaire. Exhibit NOR-38.

that it was incumbent on the investigating authority to at the very least investigate the extent to which
Salmar exported to the EC.
378
7.198 Salmar's response to the EC's "sampling questio nnaire" indicated that it sold [[XXX]] kgs of
farmed salmon on the domestic market and that it made zero export sales to the EC in the relevant
period.379 According to Norway, the investigating authority knew from its prior trade remedy
investigations into farmed salmon from Norway, th at this volume of domestic sales could not be
absorbed in its entirety into Norway's domestic market,380 and that it was more than likely that a large
part of it would have to be exported to the EC. 381 The EC has not contested the assertion that, at the
time of the selection of the investigated parties, the investigating authorit y knew that the Norwegian
domestic farmed salmon market could not absorb a ll of Salmar's reported sales; nor that a large
proportion of Norwegian salmon production is exported to the EC. Rather, the EC argues that at the
time the investigated parties were selected, the i nvestigating authority did not have information
enabling it to conclude that Salmar's production was being exported to the EC. 382
7.199 We note that of the ten companies selected for the investigating authority's limited
investigation, two producers, Nordlaks and Sinkaberg-Hansen, responded to the "sampling
questionnaire" without identifying an amount of export sales of farmed salmon to the EC. Contrary to
Salmar, these producers indicated in the narrative of their replies that they sold their production to
Norwegian exporters. 383 However, another company that w as also included in the investigating
authority's selection, Stolt Seafarm, did not submit a "sampling questionnaire" at all. The EC argues
that the investigating authority included Stolt Seafarm in its limited investigation because, unlike
Salmar, Stolt Seafarm was a known producer-exporte r with a history of cooperation with the
investigating authority in previous anti-dumping and anti-subsidy cases. In this regard, the EC asserts
that the investigating authority was aware of the leve l of Stolt Seafarm's exports to the EC because of
the Undertaking Stolt Seafarm entered into during the 1997 anti-dumping and anti-subsidy
investigations into farmed salmon from Norway.
384
7.200 In our view, the fact that the investigating authority included Stolt Seafarm in the ten
companies selected for the limited investigation on the basis of information obtained from previous
trade remedy investigations confirms not only that the investigating authority considered information
obtained from its previous trade remedy investigati ons relevant to the selection of the investigated

378 Norway, FWS, paras. 322-327; Norway, SWS, paras. 137; Norway, Answers to Panel Questions 54,
79, 132; Norway, Comments on the European Communities' Answers to Panel Questions 104, 105 and 106; and
379 Exhibit NOR-38.
380 Norway, Second Oral Statement, para. 42; Norway, Comments on the European Communities'
Answers to Panel Questions 104, 105 and 106, referring to Recital 72 of Council Regulation EC No. 930/2003
of 26 May 2003 terminating the anti-dumping and anti- subsidy proceedings concerning imports of farmed
Atlantic salmon originating in Norway , where the investigating authority found that "given the specific
characteristics of the Norwegian domestic market, a percentage of at least 4 per cent of the volume of exports of
the product concerned to the Community (instead of the usual 5 per cent) was held as sufficient to consider
domestic sales to be representative". Exhibit NOR-5.
381 Norway, Second Oral Statement, para. 42; Norway, Comments on the European Communities'
Answers to Panel Questions 104, 105 and 106, referring to various Recitals of Commission Regulation
EC No. 1447/2004 of 13 August 2004 imposing provisional safeguard measures against imports of farmed
salmon and Commission Regulation EC No. 206/2005 of 4 February 2005 imposing definitive safeguard
measures against imports of farmed salmon , which when read together suggest that over 65 per cent (66.9 per
cent according to Norway) of Norwegian production of farmed salmon in 2003 was exported to the EC.
Exhibits NOR-6 and NOR-7.
382 See, e.g., EC, Answer to Panel Question 104, where the EC was directly asked to respond to
Norway's assertions.
383 Exhibit NOR-38.
384 EC, Answer to Panel Questions 105 and 106.

parties, but also that the investigating authority must have been aware of the particular characteristics
of the Norwegian salmon industry that Norway asserts were within its knowledge. Indeed, as we have
already noted, the EC has not contested this assertion.
7.201 We recall that the interested parties to be in vestigated were selected in the context of
consultations between the investigating authority a nd the FHL, during which Salmar was consistently
identified in the list of producer companies that th e FHL considered should be investigated. The EC
suggests that this fact – i.e., that the FHL identif ied Salmar as a "producer" in its submissions – was
significant. However, we note that on the basis of the investigating authority's own approach, it was
not interested in exporter companies, but rather producers and exporting producers. Thus, at the time
of its consultations with FHL and at the time it sel ected the investigated comp anies, the investigating
authority's focus would have been on the producer and exporting producer companies identified in
FHL's submissions – which included Salmar. For the same reason, we do not consider the fact that
Salmar was not listed as one of the 15 largest ex porters in the list provided by the FHL to be
significant. Indeed, ultimately, only four of the te n companies chosen by the investigating authority
were named on that list.
7.202 The EC contends that Salmar never replied to the investigating authority's "second sampling
questionnaire" and suggests that this is also a significant fact. By "second sampling questionnaire" we
understand the EC to be referring to the follow-up qu estions it asked that were focused on clarifying
the relationships between companies operating in the Norwegian salmon industry. Although the EC
considers this to be an uncontested fact, Norway has not accepted the EC's assertions.
385 Moreover,
the EC has provided no evidence to prove that any such questionnaire was ever sent to Salmar.
7.203 Thus, in the light of the foregoing, and given that the investigating authority knew (i) that
Salmar was among the largest producers in Norway, a nd (ii) that the characteristics of the Norwegian
salmon industry were such that it was likely that a large proportion of Salmar's production would be
exported to the EC, we believe that it was incumben t on the investigating authority to try to remove
any doubts about Salmar's exports by asking the FHL (or Salmar directly) for clarification. In the
particular circumstances of this case, we do not believe it is sufficient for the EC to seek to justify the
investigating authority's exclusion of Salmar on the grounds that the FH L (and Salmar) failed to
expressly identify the level of Salmar's export sales to the EC.
7.204 Finally, we note that a lack of information a bout whether Salmar made export sales to the EC
was not the basis of the investigating authority's re jection of the FHL's request to include Salmar in
the limited investigation. The only basis for ex cluding Salmar's candidature that was communicated
in writing to the FHL was that Salmar was not need ed to achieve a geographically balanced selection
of investigated companies. 386 While we recognize that the investigating authority's written
communication was made in response to the FHL's explicit request to include Salmar in order to
balance the geographical representativeness of the chosen companies,
387 we believe that a genuine
concern about an alleged lack of information in respect of the dest ination of Salmar's exports might,
and perhaps should, also have served to dismiss FHL's request.
7.205 Thus, for all of the above reasons, we find that the EC's failure to include Salmar in the ten
companies selected for the limited investigation was inconsistent with Article 6.10 of the
AD Agreement.

385 Norway, FWS, para. 325; Norway, Answer to Panel Question 132; Norway, Comments on EC's
Comments on the Interim Report, paras. 42-43.
386 Exhibit EC-6.
387 Exhibit NOR-47.

2. Alleged Inconsistency of the EC's Determination that Certain Below-Cost Sales Were
Outside of the Ordinary Course of Trad e with Articles 2.2.1 and 2.2 of the
AD Agreement
(a) Arguments of the parties
(i) Norway
7.206 Norway claims that the investigating authority excluded the domestic sales of certain
investigated companies from its calculation of normal va lue, on the grounds that they were outside of
the ordinary course of trade by reason of price, in a manner that was inconsistent with the EC's
obligations under Article 2.2.1 of the AD Agreem ent. Norway furthermore claims that, as a
consequence, the EC failed to comply with Article 2.2 of the AD Agreement because the investigating
authority constructed normal value for the relevant companies on the basis of a flawed finding that
their domestic sales were outside of the ordinary course of trade.
7.207 Norway argues that Article 2.2.1 requires that before proceeding to exclude below-cost sales
from the calculation of normal value, for being outsi de of the ordinary course of trade by reason of
price, an investigating authority must "determine " the existence of three cumulative conditions: (i)
that the below-cost sales are made within an extended period of time; (ii) that the below-cost sales are
made in substantial quantities; and (iii) that the below-cost sales are made at prices that do not provide
for the recovery of all costs within a reasonable pe riod of time. Norway contends that in excluding
the domestic sales from its calculation of the norm al values of the companies at issue, the
investigating authority failed to "determine" that the third of these conditions was satisfied.
388
7.208 According to Norway, the word "determine" in Article 2.2.1 has the meaning given by the
Appellate Body to the same word appearing in othe r provisions of the AD Agreement. Thus, Norway
argues that the obligation to "determine" that below- cost sales are made at prices that do not provide
for the recovery of all costs within a reasonable pe riod of time requires a "reasoned conclusion on the
basis of information gathered as part of a process of reconsidera tion and examination". 389 Norway
submits that, in the light of the ordinary meani ng of the word "reasonable", a determination of the
"reasonable period of time" may only be achieved on a case-by-case basis, taking into account the
"normal commercial practice" of a particular industry. Norway asserts that the investigating authority
failed to make any such determination because it did not make an assessment of the appropriate
"reasonable period of time" in the light of the particular circumstances of the investigation.
7.209 Furthermore, in response to the EC's contention that the investigating authority was entitled to
apply a working rule that equated the reasonable period of time with the period of investigation,
Norway argues that nothing in the findings shows th at the EC actually adopted such a rule. In any
case, even if such a rule were adopted, the EC c ould not rely on it if it was not made known to the
interested parties, which Norway contends was not the case in the present investigation.
7.210 Norway also contends that the obligation to "d etermine" that below-cost sales are made at
prices that do not provide for the recovery of all costs within a reasonable period of time means that

388 Norway, FWS, para. 341.
389 Norway, FWS, para. 339; Norway, SWS, para. 141; Norway, Answer to Panel Question 80,
referring to Appellate Body Report, United States – Countervailing Duties on Certain Corrosion-Resistant
Carbon Steel Flat Products from Germany ("US – Carbon Steel "), WT/DS213/AB/R and Corr.1, adopted
19 December 2002, DSR 2002:IX, 3779, para. 111; Appellate Body Report, United States – Measures Relating
to Zeroing and Sunset Reviews (" US – Zeroing (Japan) "), WT/DS322/AB/R, adopted 23 January 2007,
para. 182 and Appellate Body Report, United States – Anti-Dumping Measures on Oil Country Tubular Goods
(OCTG) from Mexico , (" US – Anti-Dumping Measures on Oil Country Tubular Goods "), WT/DS282/AB/R,
adopted 28 November 2005, para. 283.

an investigating authority must provide an "explana tion" of its "determination" that is "clear and
unambiguous" and explicit. 390 Norway submits that the investigating authority failed to make any
such determination because its findings did not in clude an explicit and una mbiguous explanation of
why the prices of the sales discarded did not provide for the recovery of costs within a reasonable
period of time. Indeed, according to Norway, the investigating authority's findings did not state the
duration of the "reasonable period of time", and di d not even mention "cost recovery" within a
"reasonable period of time".
7.211 Finally, Norway argues that the investigating authority could not have even made the required
determination implicitly, because the tests applied by the investigating authority for the purpose of
identifying below-cost sales that could be treated as not being made in the ordinary course of trade by
reason of price did not verify whether the below-cost sales were made at prices that could not recover
costs within a "reasonable period of time". 391 In this regard, Norway submits that absent a
determination that the "reasonable period of time" eq ualled the period of investigation, the mere fact
that the investigating authority's profitability test compared prices with average costs over the period
of investigation does not necessarily mean that those costs would not be recovered over a reasonable
period of time.
(ii) European Communities
7.212 The EC submits that the investigating authority was not obligated to "determine", in the sense
that is argued by Norway, that the appropriate "reasonable period of time" for the particular
investigation at issue was the period of investiga tion. The EC advances various arguments in support
of this contention.
7.213 First, the EC argues that the "reasonable period of time" test is part of the notion of sales
below cost, and not an additional criterion applied to such sales in order to decide whether they may
be discarded in the determination of normal value. According to the EC, the first sentence of
Article 2.2.1 does not establish three conditions that must be fulfilled before finding that below-cost
sales may be treated as not being made in the ordina ry course of trade, but only two. In this regard,
the EC argues that the true meaning of the first sen tence of Article 2.2.1 can only be discovered if the
obligation to "determine" that below-cost sales do not provide for the recovery of costs within a
reasonable period of time is seen not as an additiona l requirement but as an elucidation of the initial
definition of the class of sales to which the Article 2.2.1 is addressed. In other words, the EC argues
that sales are to be understood as being below-cost only if their prices would not permit recovery of
all costs within a reasonable period of time. T hus, the EC submits that the first sentence of
Article 2.2.1 defines a class of sales (those made below costs based on a reasonable period of time),
whose prices may be disregarded in calculating normal value only if two conditions are satisfied
(those of the "extended period" and the "substantial quantities").
7.214 Secondly, the EC argues that the second sentenc e of Article 2.2.1 stands for the proposition
that all sales (whether above or below per unit costs at the time of sale) will be considered to provide
for the recovery of costs within a reasonable period of time to the extent that their prices are above the
weighted average per unit costs for the period of inves tigation. The EC submits that this implies that
the "reasonable period of time" is not one that must be determined for each investigation, but one that
may be adopted as a "working rule" by Members. 392 According to the EC, the adoption of such a

390 Norway, SWS, para. 139; Norway, Answer to Panel Question 80, citing Appellate Body Report,
United States – Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from
Korea ("US – Line Pipe "), WT/DS202/AB/R, adopted 8 March 2002, DSR 2002:IV, 1403, paras. 194 and 217;
Appellate Body Report, US – Steel Safeguards, paras. 296 and 442.
391 Norway, FWS, paras. 360-369.
392 EC, Answer to Panel Question 80.

working rule is permissible, because Members may adopt general rules when implementing the
AD Agreement,
393 provided that these are not applied with "complete rigidity". 394 Thus, the effect of
the last sentence of Article 2.2.1 is to shift the bur den of proof, in the sense that if a Member adopts a
working rule that prices will not be regarded as a llowing for the recovery of costs unless the price is
above average costs in the investigation period, the onus would be on the party concerned to show
that, despite failing this standard, the price of a sale was sufficient to allow recovery of costs within a
reasonable period of time.
7.215 The EC asserts that, in the investigation at issue, the investigating authority assessed whether
below-cost sales could be excluded from the calcul ation of normal value for being outside of the
ordinary course of trade by reason of price through th e application of its "normal" "working rule" of
equating the "reasonable period of time" with the twelve month period of investigation. It asserts that
there is no evidence that the investigated companie s were unaware of the EC 's intentions regarding
the way in which the issue of sales below cost woul d be determined; and no evidence to indicate that
the investigated companies at any time questioned the appropriateness of the EC's conduct.
7.216 While recognising its non-binding character, the EC recalls that a Recommendation of the
Committee on Anti-dumping Practices Concerning Periods of Data Collection, 395 explicitly stipulates
that the period of data collection for investigati ng sales below cost should normally coincide with the
period of investigation for dumping. The EC argues that this Recommendation, on its own, as well as
in the context of the subsequent practice it has estab lished in the application of Article 2.2.1, within
the meaning of Article 31(3)(b) of the Vienna C onvention on the Law of Treaties, supports its
interpretation of Article 2.2.1.
7.217 Finally, the EC argues that the profitability test actually applied by the investigating authority
satisfied the substantive obligations under Article 2.2.1. In particular, the EC submits that the
profitability test, to the extent that it compared whether net sales prices were above the weighted
average cost of production for the period of investig ation, properly addressed the question of whether
any below-cost sales were made at cost recovery prices.
(b) Arguments of the third parties
(i) Japan
7.218 Japan argues that the ordinary meaning of the word "determine" implies that investigating
authorities must make a reasoned finding on the ba sis of positive evidence that below-cost sales do
not provide for the recovery of all costs within a r easonable period of time. Thus, Japan contends that
investigating authorities must act with an appropr iate degree of diligence and arrive at a reasoned
conclusion on the basis of information gathered as part of a process of examination.
7.219 Japan argues that the principle of effective tr eaty interpretation demands that the terms "a
reasonable period of time" and "the period of investigation" must be attributed a different meaning. In
this regard, Japan recalls that the Appellate Body has found that "[t]he word 'reasonable' implies a
degree of flexibility that involves consideration of all of the circumstances of a particular case." 396
Thus, according to Japan, the length of the "reasonable period of time" for the purpose of Article 2.2.1
will depend upon specific circumstances of the inves tigation. It would be inconsistent with

393 EC, Answer to Panel Question 80, referring to Appellate Body Report, US – Hot-Rolled Steel ,
para. 148.
394 EC, Answer to Panel Question 80.
395 Recommendation Concerning the Periods of Data Collection for Anti-Dumping Investigations,
G/ADP/6, adopted 5 May 2000, Exhibit EC-7.
396 Appellate Body Report, US - Hot-Rolled Steel, para. 84.

Article 2.2.1 if an investigating authority were to determine that the "reasonable period of time" was
identical to the period of investigation in every case, without due examination of whether or not such
a period was reasonable under the specific situations of the case at hand.
(ii) United States
7.220 The United States submits that Article 2.2.1 do es not preclude an investigating authority from
using the period of investigation as "a reasonable pe riod of time" or oblige an investigating authority
to define the reasonable period of time differently from case to case. In this regard, the United States
notes that the cost recovery test described in Article 2.2.1, second sentence, deems the period of
investigation to be the reasonable period of time. While arguing that this factual scenario is not
exhaustive of the situations when below-cost sales may be found to provide for cost recovery within a
"reasonable period of time", the United States contends that Article 2.2.1, sec ond sentence, stands for
the proposition that using the investigation peri od to assess whether costs were recovered in a
reasonable period of time is not necessarily inconsistent with Article 2.2.1.
7.221 According to the United States, the ordinary meanin g of "determine" is to "settle or decide (a
dispute, controversy, etc., or a sentence, conclusion, issue, etc.) as a judge or arbiter." Consistent with
this definition, Article 2.2.1 requires the investiga ting authority to "decide" whether below-cost sales
do not provide for the recovery of all costs within a reasonable period of time.
7.222 Finally, the United States argues that the fact that the EC identified sales as outside the
ordinary course of trade based on criteria other than those identified in Article 2.2.1 would not alone
support the conclusion that it acted inconsistently with that provision. This is because sales may be
treated as outside the "ordinary course of trade" for reasons other than those set forth in Article 2.2.1,
first sentence.
(c) Evaluation by the Panel
7.223 Norway claims that the investigating authority acted inconsistently with Article 2.2.1 of the
AD Agreement when it excluded the below-cost domes tic sales of five companies from its calculation
of their respective normal values, without first "deter mining" whether such sales were made at prices
that did not provide for the recovery of all costs within a reasonable period of time. We understand
Norway to be arguing that the investigating aut hority did not make the requisite "determination"
because: (i) it failed to make a reasoned assessment of the appropriate length of the "reasonable period
of time" in the light of the particular circumstance s of the investigation; (ii) it did not provide an
explicit, clear and unambiguous explanation of why the below-cost sales at issu e were made at prices
which did not provide for the recovery of cost with in a reasonable period of time; and (iii) the tests
applied to exclude the below-cost sales at issue were not of the kind that could evaluate whether they
were made at prices that did not provide for the re covery of all costs within a reasonable period of
time. We will address each of Norway's arguments below. However, before doing so, we briefly set
out some of the pertinent facts surrounding the investigating authority's exclusion of the domestic
sales at issue.
(i) Facts
7.224 The investigating authority's determination of the investigated companies' normal values is
first described in theProvisional Regulation.
397 The investigating authority proceeded in multiple
steps. First, it examined whether the domestic sal es of the investigated companies were made in
"representative" quantities within the meaning of Article 2(2) of the EC's Basic Anti-Dumping

397 Provisional Regulation, Recitals 19-31 (Exhibit NOR-9), confirmed without modification in the
Definitive Regulation, Recital 11, Exhibit NOR-11.

Regulation.
398 The investigating authority undertook this assessment at both the level of overall
domestic sales and sales of individual types of farmed salmon.399
7.225 Next, for all sales of farmed salmon types th at were found to be sold in "representative
quantities", the investigating authorit y checked to see whether they were made in the ordinary course
of trade "in accordance with Article 2(4)" of the EC's Basic Anti-Dumping Regulation. 400 Article 2(4)
of the EC's Basic Anti-Dumping Regulation repeats the text and footnotes of Article 2.2.1 of the
AD Agreement almost verbatim. The investigating authority exam ined whether the relevant sales
were made in the ordinary course of trade pursuan t to this provision "by establishing the proportion of
profitable sales to independent cust omers of the type in question". 401 The investigating authority's
precise methodology was described in the following terms:
"(23) In cases where the sales volume of a type of farmed salmon, sold at a net
sales price equal to or above its cost of production, represented more than 80 per cent
of the total sales volume of that type, and where the weighted average price of that
type was equal to or above its cost of production, normal value was based on the
actual domestic price. This price was calculated as a weighted average of the prices of
all domestic sales of that type made during the IP, irrespective of whether these sales
were profitable or not.
(24) Where the volume of profitable sales of a type of farmed salmon represented
80 per cent or less of the total sales volume of that type, or where the weighted
average price of that type was below its cost of production, normal value was based
on the actual domestic price, which was calculated as a weighted average of
profitable sales of that type only, provided that these sales represented 10 per cent or
more of the total sales volume of that type.
(25) Finally, where the volume of profitable sales of any type of farmed salmon
represented less than 10 per cent of the total sales volume of that type, it was
considered that this particular type was sold in insufficient quantities for the domestic
price to provide an appropriate basis for the establishment of the normal value."
402
7.226 The above passage explains that all "representative" sales of a salmon type were found to be
in the ordinary course of trade when the "sales volume of [that] type of farmed salmon, sold at a net
sales price equal to or above its cost of production, represented more than 80 per cent of the total sales
volume of that type, and where the weighted average pr ice of that type was equal to or above its cost
of production". The disclosures made by the inves tigating authority to the individually investigated
companies reveal that the "cost of production" used for the purpose of these comparisons was the
weighted average cost of production for th e twelve month period of investigation. 403 Thus, the first
part of the investigating authority's evaluation of whether sales were made in the ordinary course of
trade pursuant to Article 2(4) of the EC's Basic Anti-Dumping Regulation involved comparing the net

398 Provisional Regulation, Recital 19. The EC argues that the test applied to determine whether
domestic sales were "representative" reflected Article 2.2 of the AD Agreement. EC, Answer to Panel
Question 15.
399 Provisional Regulation, Recitals 20-21. EC, Answ er to Panel Question 15. We note that Norway
has raised no claim regarding the investigating authority's determination of "representativeness".
400 Provisional Regulation, Recital 22.
401 Provisional Regulation, Recital 22.
402 Provisional Regulation, Recitals 23-25. These findings were confirmed in the Definitive
Regulation, Recital 11.
403 E.g., Information Note to Grieg Seafood, 8 March 2005, Exhibit NOR-55; Provisional Disclosure to
Grieg Seafood, 22 April 2005, Exhibit NOR-58, and Defi nitive Disclosure to Grieg Seafood, 28 October 2005,
Exhibit NOR-16. See also, EC, Answers to Panel Questions 13 and 14.

sales price and the weighted average price to the weighted average cost of production for the period of
investigation. Where the proportion of sales made at a net price equal to or above weighted average
cost of production (i.e., the "profitable" sales) 404 was greater than 80 per cent of all sales of the same
salmon type, and where the weighted average price w as equal to or above the weighted average cost
of production, the investigating authority found that all sales of the particular salmon type were made
in the ordinary course of trade, regardless of whether they were "profitable".
7.227 In cases where the proportion of "profitable" sal es was less than 80 per cent, but at least
10 per cent, of all sales of the same salmon type, or where the weighted average price was less than
the weighted average cost of production, the inv estigating authority found that only the "profitable
sales" of the particular salmon type were made in the ordinary course of trade.
7.228 Thus, the investigating authority treated two ca tegories of domestic sales as outside of the
ordinary course of trade: (i) all not "profitabl e" sales (i.e., where net sales price was less than
weighted average cost over the period of investiga tion), to the extent these represented 20 per cent or
more of the total sales of the particular salmon type at issue; and (ii) all "profitable" sales, to the
extent these represented less than 10 per cent of the total sales of the particular salmon type at issue.
7.229 The Provisional Regulation explains that the investigating authority found five companies to
have made "overall representative sales". 405 The individual company disclosures reveal that for only
three of these companies were any sales found to be "representative", when examined at the level of
individual salmon types.406 The same disclosures also show that the investigating authority concluded
that many of the sales found to be "representative" by individual salmon type were not made in the
ordinary course of trade, after application of the "profitable" sales test described above. Thus, the
"profitable" sales test served as th e basis for finding that certain of the domestic sales of three of the
ten investigated companies were made outside of the ordinary course of trade.
(ii) Whether the investigating authority failed to "d etermine" that the below-cost sales did not
provide for the recovery of all costs within a "reasonable period of time"
7.230 We begin our evaluation of Norway's claim by reviewing the text of Article 2.2.1, which
reads:
"Sales of the like product in the domestic market of the exporting country or sales to a
third country at prices below per unit (fixed and variable) costs of production plus
administrative, selling and general costs may be treated as not being in the ordinary
course of trade by reason of price and ma y be disregarded in determining normal
value only if the authorities 3 determine that such sales are made within an extended
period of time4 in substantial quantities5 and are at prices which do not provide for the
recovery of all costs within a reasonable period of time. If prices which are below per
unit costs at the time of sal e are above weighted average per unit costs for the period
of investigation, such prices shall be cons idered to provide for recovery of costs
within a reasonable period of time.

404 Although the Provisional Regulation does not explicitly define "profitable" sales, when reading
Recitals 22 to 25 together, it is evident that the referenc es contained therein to "pro fitable" sales mean sales
made at a net price above "cost of production". See also, EC, Answer to Panel Question 14.
405 Provisional Regulation, Recital 29. Underline added.
406 These companies were [[XXX]] (Definitive Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-
69); [[XXX]] (Definitive Disclosure to [[XXX]], 28 October 2005, Exhib it NOR- 45), and [[XXX]] (Definitive
Disclosure to [[XXX]], 28 October 2005, Exhibits EC-42 and EC-43). See also, EC, Answer to Panel
Question 15; and Norway, Answer to Panel Question 84.

3 When in this Agreement the term "authorities" is us ed, it shall be interpreted as meaning authorities at
an appropriate senior level.

4 The extended period of time should normally be one year but shall in no case be less than six months.

5 Sales below per unit costs are made in substantia l quantities when the authorities establish that the
weighted average selling price of the transactions under consideration for the determination of the
normal value is below the weighted average per unit costs, or that the volume of sales below per unit
costs represents not less than 20 per cent of the volu me sold in transactions under consideration for the
determination of the normal value."
7.231 Article 2.2.1 describes a methodology for dete rmining whether below-cost sales may be
treated as not being made in the ordinary course of tr ade. Pursuant to the first sentence, sales made at
prices below "per unit (fixed and variable) costs of production plus administrative, selling and general
costs" may be treated as not being made in the ordi nary course of trade "by reason of price" when an
investigating authority "determine[s]" that "such sal es are made within an extended period of time in
substantial quantities and are at prices which do not provide for the recovery of all costs within a
reasonable period of time".
7.232 On its face, the methodology set out in the firs t sentence of Article 2.2.1 involves two steps:
First, the below-cost sales that may potentially be treated as not being made in the ordinary course of
trade by reason of price must be ascertained. Th is initial step requires investigating authorities to
identify sales made at prices below "per unit (fixed and variable) costs of production plus
administrative, selling and general costs". Article 2.2.1 does not prescribe any particular time period
for the purpose of measuring the per un it costs that must be used in this assessment, suggesting that
investigating authorities have a degree of discretion to calculate such costs over different periods of
time, which might be, for example, the day of sale or the period of investiga tion. We understand that
this is also the view of the parties.407
7.233 Secondly, the investigating authority must "d etermine" whether "suc h" below-cost sales
display three specific characteristics, i.e., whether the below-cost sales identified under the first step
are made: (i) "within an extended period of time"; (i i) "in substantial quantities"; and (iii) "at prices
which do not provide for the recovery of all costs within a reasonable period of time". It is only
below-cost sales that are found to exhibit all three of these characteristics that may be treated as not
being made in the ordinary course of trade by reason of price.
7.234 The focus of Norway's claim is the second step of this methodology. In particular, Norway
claims that the investigating authority failed to "determine" that the below-cost sales excluded from
the calculation of normal value by reason of price were made "at prices which do not provide for the
recovery of all costs within a reasonable period of time". Norway argues that the obligation to
"determine" that the below-cost sales were made at prices that did not provide for the recovery of all
costs within a "reasonable period of time" required the investigating authority to make a reasoned
assessment of the appropriate length of the "r easonable period of time" in the light of the
circumstances of the investigation, taking into accoun t the particular characteristics of, for example,
the product, the producer and the "normal commercial practice" of the industry concerned. 408
According to Norway, this follows from the ordinary meaning of the word "determine" and the term
"reasonable period of time".
7.235 As previously observed by the Appellate Body , the dictionary definitions of the verb
"determine" include "[c]onclude from reasoning or investigation, deduce" as well as "[s]ettle or decide

407 EC, Answer to Panel Question 137; Norway, Answer to Panel Question 137. Norway does not
assert any claim in respect of this aspect of Article 2.2.1.
408 Norway, FWS, para. 352; Norway, Answer to Panel Questions 82, 83, 133 and 137.

(a dispute, controversy, etc., or a sentence, conclusion, issue, etc.) as a judge or arbiter". 409 T h e
Appellate Body has found that the words "determine" and "review", when read together in the context
of sunset reviews conducted pursuan t to Article 11.3 of the AD Agreement, suggest that "authorities
conducting a sunset review must act with an appropr iate degree of diligence and arrive at a reasoned
conclusion on the basis of information gathered as part of a process of reconsideration and
examination".410 Norway contends that, in the context of Article 2.2.1, which Norway argues applies
to investigations and reviews, the verb "determine" has the same meaning. 411 We disagree with the
implication that Norway has drawn from the Appell ate Body's findings. The Appellate Body did not,
in US – Corrosion-Resistant Steel Sunset Review , conclude that the verb "determine" means what
Norway contends. Rather, as the full text of th e passage referred to by Norway demonstrates, the
Appellate Body found that "[t]he words 'review' and 'determine' in Article 11.3 suggest that
authorities conducting a sunset review must act with an appropriate degree of diligence and arrive at a
reasoned conclusion on the basis of information gath ered as part of a process of reconsideration and
examination".412 Thus, the Appellate Body did not make a finding about the meaning of the verb
"determine" in general, but the meaning of the words "review" and "determine", when read together
in the context of interpreting Article 11.3 of th e AD Agreement. We understand that this was
confirmed in US – Zeroing (Japan) , where the Appellate Body recalled that in US – Corrosion-
Resistant Steel Sunset Review , it had indicated that "the ordinary meanings of the terms 'determine'
and 'review' in the text of Article 11.3 of the Anti-Dumping Agreement requires a 'reasoned conclusion
on the basis of information gathered as part of a process of reconsideration and examination'".413
7.236 Norway also observes that in US – Line Pipe and US – Steel Safeguards , the Appellate Body
held that a "determination" must be set forth in an "explanation" that is "clear and unambiguous. It
must not merely imply or suggest an explanation. It must be a straightforward explanation in express
terms".414 Again, Norway contends that, in the context of Article 2.2.1, the verb "determine" has the
same meaning.415 We are not convinced by Norway's contention. The Appellate Body's statements in
US – Line Pipe and US – Steel Safeguards were not made in the context of a claim under Article 2.2.1
of the AD Agreement, but rather Articles 3.1 and 4.2(b) of the Safeguards Agreement. Moreover, we
can see nothing in the findings made by the Appellate Body in these cases to suggest that the meaning
of the verb "determine" in Article 2.2.1 of the AD Agreement must necessarily be the same as in the
context of Articles 3.1 and 4.2(b) of the Safeguards Agreement. Thus, as we read them, the Appellate
Body's findings in US – Line Pipe and US – Steel Safeguards cannot be simply transposed into Article
2.2.1 of the AD Agreement. The meaning of the word "determine" that appears in Article 2.2.1 must
be assessed in the light of the customary rules of in terpretation of public inte rnational law, which we
recall, require us to examine the ordinary meaning of the word "determine" in context and in the light
of the object and purpose of the AD Agreement.
7.237 Turning again to the dictionary definitions of the verb "determine", we note that in addition to
those identified by the Appellate Body, other definitions include "[c]ome to a judicial decision; make
or give a decision about something", "[l]ay down authoritatively; pronounce, declare" as well as

409 Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-
Resistant Carbon Steel Flat Products from Japan ("US – Corrosion-Resistant Steel Sunset Review") ,
WT/DS244/AB/R, adopted 9 January 2004, para. 110, quoting the Shorter Oxford English Dictionary, 5th ed.,
W.R. Trumble, A. Stevenson (eds.) (Oxford University Press, 2002), Vol. I, p. 659. See also, Appellate Body
410 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 111.
411 Norway, Answer to Panel Question 80.
412 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review, para. 111. Underline added.
413 Appellate Body Report, US – Zeroing (Japan), para. 182. (Emphasis added).
414 Appellate Body Report, US – Line Pipe , paras. 194 and 217; Appellate Body Report, US – Steel
Safeguards, paras. 296 and 442, cited in Norway, Answers to Panel Question 80.
415 Norway, Answer to Panel Question 80.

"[s]ettle or fix beforehand (now esp. a date); ordain, decree".
416 This range of slightly varying
definitions indicates that the verb "determine" may have a slightly different meaning depending on the
context in which it is found.
(iii) What it means to "determine" that below-cost sales are made "within an extended period" in
"substantial quantities" and at prices which do not provide for recovery of all costs within a
"reasonable period of time"
7.238 As we have already noted, Article 2.2.1 provid es that before disregarding below-cost sales
from the calculation of normal value by reason of pr ice, an investigating au thority must "determine"
that such sales display three specific characteristics. The first characteristic that an investigating
authority must "determine" exists is that the belo w-cost sales are made "within an extended period of
time". Footnote 4 defines the "extended period of ti me" as "normally ... one year but ... in no case ...
less than six months". Thus, the "determination" that below-cost sales are made "within an extended
period of time" does not call for the investigating authority to "determine" the "extended period of
time" itself, but only that the below-cost sales in question are made within a period of time that is
normally one year but no less than six months.
7.239 The second characteristic of belo w-cost sales that must be "d etermined" to exist by an
investigating authority before it may exclude su ch sales from the calculation of normal value by
reason of price is that they are made "in substantia l quantities". Footnote 5 explains that below-cost
sales may be considered to be "made in substa ntial quantities" when an investigating authority
establishes that the "weighted average selling price" of the below-cost sales at issue is less than the
"weighted average per unit costs", or when the vol ume of below-cost sales "represents not less than
20 per cent of the volume" of sales under considerati on for the determination of normal value. Thus,
as with the requirement that an investigating auth ority "determine" that below-cost sales are made
"within an extended period of time" , the obligation to "determine" that below-cost sales are made "in
substantial quantities" does not call for the investig ating authority to "determine" the quantity of
below-cost sales that may be considered "substantia l". Rather, the investigating authority is required
to "determine" that the below-cost sales in question are either (i) made at a weighted average selling
price that is below the weighted average per unit co st, or (ii) made in quantities that represent not less
than 20 per cent of the volume of sales under consideration for the determination of normal value.
7.240 Thus, in the context of the obligation to "det ermine" that below-cost sales are made "within
an extended period of time" and "in substantial quantities", the verb "determine" does not have a
meaning that would require an investigating authority to make an individual assessment of the
appropriate "extended period of tim e" and "substantial quantities", in the light of the particular
circumstances of the investiga tion. Indeed, the language of Article 2.2.1 suggests that an
investigating authority would be entitled to give the "extended period of time" and "substantial
quantities" the same meaning in each and every inv estigation. To this extent, an investigating
authority would not be acting inconsistently with Artic le 2.2.1 if it adopted a general rule that resulted
in finding, in each and every investigation, that below-cost sales were made "within an extended
period of time" and "in substantial quantities" wh enever they were made within a one year
investigation period and in quantities represen ting more than 20 per cent of all sales under
consideration for the determination of normal value. We note that this was the result achieved by the
investigating authority in the investigation at issue.
7.241 The third of the characteristics of below-cost sales that an investigating authority must
"determine" exists before disregarding such sales by reason of price from its calculation of normal
value, is that they are made "at prices which do not provide for the recovery of all costs within a
reasonable period of time". Unlike the "extended pe riod of time" and "substantial quantities", there is

416 New Shorter Oxford English Dictionary, Clarendon Press, 1993.

no footnote to Article 2.2.1 that explains the mean ing of "a reasonable period of time". However,
important guidance on what it means to "determine" th at below-cost sales are made "at prices which
do not provide for the recovery of all costs within a reasonable period of time" may be found in the
second sentence of Article 2.2.1.
7.242 The second sentence of Article 2.2.1 specifies that when "prices which are below per unit
costs at the time of sale are above weighted average per unit costs for the period of investigation, such
prices shall be considered to provide for recovery of costs within a reasonable period of time." Thus,
Article 2.2.1 directs investigating authorities to "c onsider", in each and every investigation, that
"prices which are below per unit costs at the time of sale" will provide for the recovery of costs within
a "reasonable period of time" whenever such prices are also above weighted average per unit costs for
the "period of investigation". To this extent, the last sentence of Article 2.2.1 provides that, for the
purpose of establishing whether prices that are belo w-cost at the time of sale may provide for the
recovery of costs within a reasonable period of tim e, the "reasonable period of time" may be the same
as the "period of investigation", irrespective of the particular circumstances of the investigation.
7.243 Article 2.2.1 does not explain what is meant by "prices which are below per unit costs at the
time of sale ". In this regard, we see a similar ity between the first and second sentences of
Article 2.2.1. Although both sentences envisage a calculation of per unit costs over a period of time,
neither specifies exactly what this period of time should be. It is true that the second sentence goes
further than the first sentence in that it contemplat es an assessment of costs at the "time of sale".
However, in our view this means only that the rele vant time-period must include "the time of sale".
Thus, it would be entirely consistent with the second sentence of Article 2.2.1 for an investigating
authority to calculate per unit costs at the "time of sale" over the particular day of sale, or an average
including that day, over a week, month or the period of investigation.
417
7.244 All this suggests that an investigating authorit y that examined whether net prices were above
weighted average costs for the period of investig ation would have established whether such prices
provide for the recovery of costs within a "reasonable period of time", and therefore complied with
the second sentence of Article 2.2.1. We note that th is is exactly what the investigating authority did
in the investigation at issue.418
7.245 Norway contends that the second sentence of Article 2.2.1 does not establish an exhaustive
test for determining whether below-cost prices provi de for the recovery of costs within a reasonable
period of time. According to Norway, the second sentence of Article 2.2.1 "merely describes one
situation in which an authority must conclude th at prices allow for cost recovery in a reasonable
period of time", in this way serving to "protect foreign producers and exporters by fixing the

417 In this regard, we find it significant that whereas the drafters of the AD Agreement used the words
"date of sale" in Article 2.4.1, they chose to use "time of sale" in the second sentence of Article 2.2.1. In our
view, this difference supports the view that the "time of sale" that is referred to in the second sentence of
Article 2.2.1 does not necessarily have to be the "date of sale", and may include other "time" periods.
418 We recognize that, in response to one of our qu estions following the first substantive meeting with
the parties, the EC stated that the investigating authority had not performed an assessment of whether "prices at
the time of sale" were above weighted average costs for th e period of investigation, and therefore, in its view,
the investigating authority had not performed the comparison set out in the second sentence of Article 2.2.1.
However, it is evident that the EC's statement was made on the basis of its own interpretation of the last
sentence of Article 2.2.1, which not only seems to have evolved over the course of this dispute, but is in any
case inconsistent with what we believe to be the correct interpretation of this provision. See, EC, Answer to
Panel Question 81; and EC, Second Oral Statement, paras. 43-50. We understand that Norway does not dispute
that, in establishing whether domestic sales were made in the ordinary course of trade, the investigating
authority compared net sales price to weighted average cost for the peri od of investigation ("... the EC
determined whether an individual sales price to an unrelated party was equal to or above the company's average
cost of production for the sub-type of the product ..."). Norway, FWS, para. 354.

minimum duration of the reasonable period as equal to the IP".
419 Thus, Norway argues that the
identification of sales that do provide for the recovery of costs within a reasonable period of time
through the methodology set out in the second senten ce of Article 2.2.1 does not automatically result
in compliance with the requirement in the first sen tence of Article 2.2.1 to "determine" that below-
cost sales do not provide for the recovery of all costs within a reasonable period of time. We
understand Norway to be arguing that a finding that sales may be made at prices above weighted
average cost for the period of investigation does not, a contrario , mean that sales not found to be
above weighted average cost for the period of investigation do not provide for the recovery of costs
within a reasonable period of time.
7.246 While we recognize that it does not necessarily follo w from the language of Article 2.2.1 that
the obligation to determine that below-cost prices do not provide for the recovery of all costs within a
reasonable period of time may be satisfied thr ough an assessment of whether below-cost sales do
provide for the recovery of cost within a reasonable period of time, we are not convinced by Norway's
arguments. In our view, it is less than clear that the second sentence of Article 2.2.1 was not intended
to apply a contrario to identify the circumstances in wh ich below-cost sales may be found not to
provide for the recovery of all costs within a reasonable period of time.
7.247 First, an a contrario reading of the second sentence woul d not be inconsistent with the
general structure of the first sentence of Article 2.2.1, which as we have observed, does not require
investigating authorities to make specific determin ations of the "extended period of time" or the
"substantial quantities". In this regard, we see no reason why the content of the last sentence should
be treated differently to the content of footnotes 4 and 5, simply because of the form of its
presentation. Secondly, such a reading would also not be at odds with the flexibility that Article 2.2.1
affords investigating authorities when identifying the periods of time used for the purpose of
measuring the per unit costs that are relevant to each a nd every application of the test in Article 2.2.1.
Thirdly, we note that the nature of the inquiry that Norway argues the drafters of Article 2.2.1 agreed
should be undertaken in order to "d etermine" whether below-cost sales do not provide for cost
recovery within a "reasonable period of time" may be quite onerous and potentially even
speculative.
420
7.248 In a typical investigation, an investigating au thority will discover the existence of below-cost
sales only some months after the initiation of an investigation, once it has received, reviewed,
evaluated and possibly verified the data and informa tion submitted by the interested parties. If an
investigating authority were required at this stag e of its investigation to identify the "reasonable
period of time" in which each of the investigated parties could be expected to recover all costs
associated with the below-cost sales, other data and information relating to factors such as the
investigated parties' sales, prices and costs outsi de of the period of investigation may need to be
considered. Given that the period of investigation should normally end as close as possible to the date
of initiation,421 the identification of an appropriate "reas onable period of time" for each investigated
party may also involve examining future projections of all of these factors. In our view, undertaking
such an exercise as a matter of course in each and every investigation, without compromising the
expeditious conduct of an investigation within prescr ibed time limits, would be a challenge to even

419 Norway, Answer to Panel Question 55. See al so, Norway, FWS, paras. 350-351; Norway, SWS,
paras. 142-143.
420 The type of data that Norway contends should be considered by an investigating authority when
making such a determination includes information about an individual producer's pricing and marketing
strategies, information about the broader business and economic cycles affecting the producer's operations and
evolution of costs, and "factors such as ... whether unit prices during the IP are at a level that would recover both
average variable costs and average fixed costs, where fixed costs are computed based on 'normalized' production
volumes over the business cycle". Norway, FWS, paras. 343-346; Norway, Answer to Panel Questions 82
and 83.
421 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, paras. 158-167.

the best resourced and organized investigating author ity. These notable practical considerations also
lead us to doubt that the last sentence of Article 2.2.1 may not have any a contrario implications.
7.249 Finally, we find important contextual suppor t for the view that the second sentence of
Article 2.2.1 could be read a contrario in Article 2.2.1.1 of the AD Agreement. The relevance of this
provision is perhaps best explained and understood in the light of the reasons that Norway has
advanced in support of its contention that the "r easonable period of time" cannot, in each and every
investigation, be automatically eq uated with the "period of investig ation", as could be the case if the
last sentence of Article 2.2.1 were given an a contrario reading.
7.250 Norway argues that it may be normal commercia l practice for a producer to incur unusually
high costs that are above per unit sales price during the period of i nvestigation. For instance, a
producer might decide to incur "high marketing costs during the IP to improve market share",
temporarily pushing "per unit costs above market price". 422 According to Norway, that same
producer, in the pursuit of normal commercial prac tice, may have taken on such costs in the
expectation that they would be recovered over a period of time extending beyond the period of
investigation. Thus, although insufficient to permit cost recovery over the period of investigation, the
market price "may [nevertheless] be sufficiently high to recover costs averaged over a reasonable
period of time" that is longer than the period of investigation. 423 Norway argues that a similar
situation might arise in "periods of recession" 424 or a "cyclical downturn" 425. In such moments of
relatively low economic activity, a producer's output will decline rendering per unit costs higher.
However, a producer will eventually have to recove r all of its costs "in order to replace productive
fixed assets". So, ultimately, prices will have to increase relative to production costs over the
business cycle,426 and there is no reason why this may not extend beyond the period of investigation.
7.251 Thus, as we understand it, Norway's concern is that by equating the "reasonable period of
time" with the "period of investigation" as a matter of course, below-cost sales may be treated as not
being made in the ordinary course of trade "sim ply because costs were measured during a period
when they were unusually high" 427 and not because such costs could not be recouped within what
normal commercial practice would dictate to be a reasonable period of time for the recovery of those
costs.
7.252 We note that rules for calculating the costs used in the determination of whether below-cost
sales may be treated as not being made in the ordi nary course of trade by reason of price are found in
Article 2.2.1.1. The last sentence of Article 2.2.1.1, which we consider to be particularly instructive
for the issue that is before us, reads:
"Unless already reflected in the cost allocati ons under this sub-paragraph, costs shall
be adjusted appropriately for those non-r ecurring items of cost which benefit future
and/or current production, or for circumst ances in which costs during the period of
investigation are affected by start-up operations.6

6 The adjustment made for start-up operations shall reflect the costs at the end of the start-up period or, if
that period extends beyond the period of investigatio n, the most recent cost s which can reasonably be
taken into account by the authorities during the investigation."

422 Norway, FWS, para. 343.
423 Norway, FWS, para. 343.
424 Norway, Answers to Panel Questions 82 and 83.
425 Norway, FWS, para. 343.
426 Norway, Answers to Panel Questions 82 and 83.
427 Norway, FWS, para. 344.

7.253 This sentence provides that, unless not already taken into account in the "cost allocations"
made under the first two sentences of Article 2.2.1.1, costs for the period of investigation "shall be
adjusted appropriately" for "non-recurring items of cost which benefit future and/or current
production" or "for circumstances when costs during th e period of investigation are affected by start-
up operations".
7.254 Start-up costs may be described as costs specifically incurred for the purpose of setting up a
new business or product line. When incurred during th e investigation period, start-up costs may have
the effect of increasing average costs of production. Where they exist and affect an investigated
party's costs, the last sentence of Article 2.2.1. 1 requires that the cost of production be "adjusted
appropriately". Footnote 6 explains that this adjust ment must reflect "costs at the end of the start-up
period, or if that period extends beyond the period of investigation, the most recent costs which can
reasonably be taken into account" by the investigating authority. In other words, the appropriate cost
adjustment must reflect costs when the start-up peri od has finished (i.e., when start-up costs no longer
exist), or a period as close as possible to the end of the start-up period. Thus, the adjustment for start-
up costs that is called for under the last sentence of Article 2.2.1.1 requires investigating authorities to
exclude or minimize start-up costs in the calcu lation of cost of production for the period of
investigation. In this manner, the last sentence of Article 2.2.1.1 ensures that the existence of start-up
costs during the period of investigation has no or mi nimal impact on the identification of below-cost
sales for the purpose of Article 2.2.1.
7.255 A similar adjustment mechanism is envisaged for non-recurring costs ("NRCs"). NRCs may
be understood to be costs that are not repeated or incurred on a regular basis. These may relate to
one-off transactions including the purchase of plant and capital equipment. The language of
Article 2.2.1.1 suggests that the full amount of NRCs incurred during the period of investigation may
not always be associated with the cost of production fo r the period of investigation. As we have more
fully explained in the sections of this report th at address Norway's claims under Article 2.2.1.1,
428 the
second sentence of Article 2.2.1.1 calls for an a ppropriate allocation of NRCs incurred during the
period of investigation over time. Where no such allocation is made, the last sentence of
Article 2.2.1.1 requires investigating authorities to make an appropriate adjustment for NRCs which
benefit current and/or future production. Thus, Ar ticle 2.2.1.1 envisages that it may be inappropriate
to allocate in full to production and sale of th e like product during the period of investigation all
NRCs incurred during that period.
7.256 Thus, Article 2.2.1.1 recognizes that an investig ated party's costs of production for the period
of investigation may, to use Norway's words, be "unusually high" when affected by non-recurring
items of cost and start-up operations. In such circumstances, investigating authorities are not entitled
to simply include all such "unusually high" costs in the cost of production of an investigated party, but
they must instead make appropriate allocations or ad justments. When such allocations or adjustments
are made, an investigated party's costs will no l onger be burdened with "unusually high" costs, and
therefore serve as an appropriate measure of cost s of production for the period of investigation.
Consequently, they will also serve as an appropriate basis for the identification of below-cost sales
under Article 2.2.1.
7.257 In the context of Norway's arguments, the el imination of certain costs associated with non-
recurring items and start-up operations from the cost of production, means that there would be no
need, when applying Article 2.2.1, for an investigating authority to determine whether the "reasonable
period of time" within which to recover su ch costs should extend beyond the "period of
investigation". Because these "unusually high" co sts would no longer be counted in the cost of
production, there would be no reason to extend the "r easonable period of time" beyond the "period of
investigation". In our view, this result, which follows from the adjustment mechanism provided for in

428 See, paras. 7.484-7.487.

the last sentence of Article 2.2.1.1 and footnote 6, al so lends support to the vi ew that the last sentence
of Article 2.2.1 could be read to have a contrario implications.
7.258 In the light of the ambiguity we have identified in the meaning of Article 2.2.1, we consider it
appropriate to examine the work of the treaty negot iators, in accordance with Article 32 of the Vienna
Convention on the Law of Treaties, 429 in order to decipher the meaning that was intended by the
drafters of the AD Agreement. We begin this examination by reviewing the last draft of the
negotiating text of the AD Agreement prior to the dr aft negotiating text contained in the Draft Final
Act Embodying the Results of the Uruguay Round of Multilateral Trade Ne gotiations (the "Dunkel
Draft" text), 430 namely, the Draft Working Paper on Antidumping, dated 26 November 1991 (the
"Ramsauer" text).431 However, before doing so, we briefly explain what we understand to have been
the negotiating context in which the present day text of Article 2.2.1 was developed.
7.259 The conditions under which below-cost domestic sa les could be considered to be outside of
the ordinary course of trade were among the key issues concerning the establishment of normal value
discussed by negotiators during the Uruguay Round. At the time, several of the GATT Contracting
Parties had developed a practice of treating below-cost sales made in the period of investigation as not
being made in the ordinary course of trade. However, a number of dele gations questioned this
practice, arguing that below-cost sales often refl ected normal business practice, and should therefore
not be disregarded from the calculation of normal value.
432 In this regard, one delegation raised the
issue of declining cost curves in high-tech industries:
"Producers of such products tend to set stable domestic price and export price based
on the average cost which is estimated to be incurred during a certain period of time
leading to the future, while there are cases where the investigating authority of an
importing country determines the existence of dumping using constructed value based
on the cost prevailing at the time of actual export, on the grounds that the domestic
sales price of such products is less than the cost of production and thus cannot be
regarded as the price in ordinary course of trade. ... [W]ith respect to the dumping
investigation of the products whose cost s decline sharply, setting of price in
anticipation of cost decline should be consid ered differently from sales at a price less
than the cost of production only aiming at expanding market share of the products."433
7.260 As we understand it, the point being made by th is delegation was that the determination of
whether below-cost sales are outside of the ordinary course of trade should, for industries prone to
incurring extraordinary high costs during the initial phase of production, in some way involve

429 Appellate Body Report, European Communities – Customs Classification of Certain Computer
Equipment ("EC – Computer Equipment "), WT/DS62/AB/R, WT/DS67/AB /R, WT/DS68/AB/R, adopted
22 June 1998, DSR 1998:V, 1851, para. 86.
430 Draft Final Act Embodying the Results of the Ur uguay Round of Multilater al Trade Negotiations,
GATT Doc. No., MTN.TNC/W/FA, 20 December 1991 (the "Dunkel Draft"), p. F.2.
431 Draft Working Paper on Antidumping, dated 26 November 1991, (unpublished working document),
(the "Ramsauer" text). The relevant text in the Dunkel Dr aft is equivalent in all respects to Article 2.2.1 of the
current AD Agreement. Thus, the Ramsauer text reflects the Members' negotiating positions immediately prior
to the final agreed text of Article 2.2.1 of the AD Agreement.
432 Proposed Elements for a Framew ork for Negotiations Principles and Objectives for Anti-Dumping
Rules, Communication from the Delegation of Singapore, MTN.GNG/NG8/W/55, 13 October 1989;
Amendments to the Anti-Dumping Code, Communication from the Delegation of Hong Kong,
MTN.GNG/NG8/W/51/Add.1, 22 December 1989; Ame ndments to the Anti-Dumping Code, Communication
from the Nordic countries, MTN.GNG/NG8/W/64, 22 December 1989; Meetings of 31 January-2 February and
19-20 February 1990, MTN.GNG/NG8/15, 19 March 1990.
433 Communication from Japan, Proposals on the Anti-Dumping Code, MTN.GNG/NG8/W/11,
28 September 1987.

examining or taking into account the evolution of those costs and prices beyond the period of
investigation.
434 This is because in the normal course of business, a company in such an industry will
seek to recover those costs over a period that may be longer than the period of investigation. Similar
observations appear to have been made by other dele gations in respect of the effects of start-up costs
and fluctuating business cycles on the levels of cost s incurred (relative to prices) during the period of
investigation.
435 Thus, the challenge facing negotiators was to agree upon an appropriate set of
disciplines for determining whether below-cost sales in the period of investigation could be treated as
not being made in the ordinary course of trade, that took into account these alleged business realities.
7.261 The Ramsauer text addressed the issue of be low-cost sales over various provisions, starting
with Article 2.2.2, which is reflected, almost verbatim, in the text of the first sentence of Article 2.2.1
of the present AD Agreement:
"2.2.2 Sales of the like product in the dom estic market of the exporting country or
sales to a third country at prices below per unit (fixed and variable) cost of production
plus selling, general and administrative costs may be treated as not being in the
ordinary course of trade by reason of pri ce and may be disregarded in determining
normal value only if the authorities
2 determine that (a) such sales are made within an
extended period of time in substantial quantities and (b) such sales are at prices which
do not provide for the recovery of all costs within a reasonable period of time.

2 When in this Code the term "authorities" is used, it shall be interpreted as meaning authorities at an
appropriate, senior level."
7.262 We note that there are no footnotes in this draft proposal to define the "extended period of
time" or the notion of "substantial quantities". In addition, there is no second sentence recognizing
that below-cost prices will recover costs within a reasonable period of time when above weighted
average costs for the period of investigation. Ho wever, these elements of the current version of
Article 2.2.1 were not ignored in the Ramsauer text. Language elaborating the meaning of the
"extended period of time" and the notion of "substa ntial quantities" was contained in two additional
sub-ordinate provisions:
"2.2.2.1 The extended period of time shoul d be long enough to enable the authorities
to discern whether there is a consistent pattern, in terms of quantities, of sales below
per unit costs. This period should normally be one year but shall in no case be less
than six months.
2.2.2.2 Sales below per unit cost are made in substantial quantities when the
authorities establish that within the extende d period of time the weighted average
selling price of all arm's length transactions is below the weighted average unit cost
or the volume of those sales represents a substantial proportion3 of all sales.

3 For the purpose of this paragraph, a substantial proportion is not less than [A] per cent."

434 See also, Communication from Japan, Background Notes to Japan's Proposals on the Anti-Dumping
Code, MTN.GNG/NG8/W/30, 20 June 1988.
435 Amendments to the Anti-Dumping Code, Submission by Canada, MTN.GNG/NG8/W/65,
22 December 1989; Amendments to the Anti-Dumping Code, Communication from the Delegation of Hong
Kong, MTN.GNG/NG8/W/51/Add.2, 21 March 1990; Meetings of 31 January-2 February and 19-
20 February 1990, MTN.GNG/NG8/15, 19 March 1990.

7.263 The Ramsauer text contained three additional provisions sub-ordinate to Article 2.2.2.436 One
of these, Article 2.2.2.3, specified the types of ev idence that investigating authorities should take into
account when establishing costs for the purpose of establishing normal value. The language of this
provision is reflected in the first two sentences of Article 2.2.1.1 of the current AD Agreement:
"2.2.2.3 Costs shall normally be calcula ted on the basis of records kept by the
exporter or producer under investigation, provided that such records are in
accordance with the generally accepted accounting principles of the exporting
country and reasonably reflect the costs associated with the production and sale of the
product under consideration. Authorities sh all consider all available evidence on the
proper allocation of costs, including that whic h is made available by the exporter or
producer in the course of the investigation provided that such allocations have been
historically utilized by the exporter or producer, in particular in relation to
establishing appropriate amortization and de preciation periods and allowances for
capital expenditures and other development costs."
7.264 The next sub-ordinate provision, Article 2.2.2. 4, was presented in the Ramsauer text in the
form of two square bracketed alternatives. The first square bracketed alternative read:
"[2.2.2.4 In determining whether the prices provide for recovery of costs within a
reasonable period of time, taking account of whether prices prevailing at the time of
sale are below weighted averag e costs, the authorities shall be guided by the pattern
of prices and costs pertaining to the product and industry in questi on. In addition,
unless already reflected in the cost alloca tions, the following practices should be
observed:
 (i) Producers shall be given an opportunity to identify those non-recurring
items of cost which benefit current and fu ture production and authorities shall adjust
costs for the period of investigation appropriately.
 (ii) For products in the start-up ph ase of production the authorities shall
determine if prices of the product provide for the recovery of all costs within a
reasonable period of time based on actual a nd verified data of the exporter or
producer concerning, inter alia
, cost curve, sales volumes and cost recovery period
for a prior generation or model of the product subject to the investigation. When this
is not possible the per unit costs shall reflect the cost at the end of the start-up phase,
or the lowest cost during the period of investigation, if that is earlier.
 (iii) In the case of cyclical industries 4, where sales would otherwise be found
to be made at prices below per unit cost of production pursuant to paragraph 2.2.2,
the following provisions shall apply:
 (a) when capacity utilization and per unit costs of production vary
significantly over the business cycle and sales prices vary only moderately the
calculation of the per unit cost shall be adju sted to reflect average per unit costs for
the exporter's or producer's most recent five-year period for the facilities involved;

436 We do not consider that the last of these sub-ordinate provisions, Article 2.2.2.5, to be relevant to
the issue that is before us, and therefore, have not addressed its substance in our analysis. Article 2.2.2.5 reads:
"Nothing in this paragraph shall compel inve stigating authorities to determine sales in the
domestic market of the exporting country, by reason of price, not to be in the ordinary course
of trade for the purposes of establishing normal value."

 (b) when the sales price varies signifi cantly over the business cycle and the
capacity utilization and the per unit costs of production vary only moderately the
calculation of the export price shall be adju sted to reflect the average sales price for
the exporter's or producer's most recent five-year period for the facilities involved.]

4 Cyclical industries are those charac terized by [high sunk costs and] a pattern of recurring periods of
sectoral contraction and expansi on of demand, sales, and producti on not associated with seasonal
variations or other short-term factors."
7.265 The second square bracketed alternative read:
"[2.2.2.4 The authorities shall determine th at prices below cost provide for recovery
of costs within a reasonable period of time if prices below cost at the time of sale are
above weighted average costs of the period of investigation. In addition, unless
already reflected in cost allocations, the following practices shall be observed:
 (i) Authorities may adjust costs appr opriately for those non-recurring costs
which benefit future or current production;
 (ii) For products in the start-up phase of production, costs shall be adjusted to
reflect the cost at the end of the start-up period, or the lowest cost during the period of
investigation, if that is earlier;
 (iii) Costs for cyclical industries 4, for the purpose of this Article, shall reflect
fixed unit factory costs adjusted by the ratio of capacity utilization over the period of
investigation to capacity utilization over the most recent five-year period for the same
facilities.]

4 Cyclical industries are those charac terized by [high sunk costs and] a pattern of recurring periods of
sectoral contraction and expansi on of demand, sales, and producti on not associated with seasonal
variations or other short-term factors."
7.266 In the same way that the Ramsauer text proposed Articles 2.2.2.1 and 2.2.2.2 to define what it
meant under Article 2.2.2 to "determine" that below- cost sales were made within an "extended period
of time" and in "substantial quantities", it is eviden t that the two Article 2.2.2.4 alternatives were
intended to describe what would be required in order to "determine" that below-costs sales do not
provide for the recovery of costs within a reasonable period of time. In this regard, we note that the
meaning of the terms "extended period of time" , "substantial quantities" and "reasonable period of
time" was at the centre of the negotiating parti es' discussions on the appropriate methodology for
determining when below-cost sales could be treated as not being made in the ordinary course of trade
by reason of price. 437 It is therefore not surprising to find that all three terms were the subject of
specific textual proposals. In our view, this strongly suggests that, as with Articles 2.2.2.1 and 2.2.2.2
of the Ramsauer text, the two alternatives presented in Article 2.2.2.4 were intended to give definitive
guidance on how the obligation to "d etermine" that below-cost sales do not provide for recovery of
costs within a reasonable period of time should be in terpreted. Indeed, give n their detailed nature, it
would be odd to find that they were not intended fo r this purpose but rather intended only to describe
one situation that was irrelevant for the resolution of one of the key questions that was before the
negotiators. As we see it, the fact that the brack eted proposals present two very different conceptions

437 See, Meetings of 31 January-2 February and 19-20 February 1990, MTN.GNG/NG8/15,
19 March 1990.

of how cost recovery within a reasonable period of time should be assessed further substantiates this
view.
7.267 The first of the two alternatives starts by sti pulating that the question as to whether prices
provide for recovery of costs within a reasonable pe riod of time must be informed by whether prices
are below weighted average costs, as well as the pattern of prices and costs pertaining to the product
and industry in question. In other words, the star ting premise of this first alternative is that cost
recovery within a reasonable period of time is a f unction of whether prices at the time of sale are
below weighted average costs, an assessment that may vary between different products and industries.
Thus, as opposed to the current text of the second sentence of Article 2.2.1, the first proposal in the
Ramsauer text does not equate the reasonable period of time with the period of investigation. Rather,
it explicitly contemplates that the "reasonable period of time" will depend upon the particular
characteristics of the product and industry under inves tigation. This suggests that the drafters of this
alternative intended that cost recovery within a "reasonable period of time" be assessed on a case-by-
case basis.
7.268 The next sentence of the first alternative in th e Ramsauer text provides that, "in addition" to
undertaking the assessment contemplated in the firs t sentence, and "unless already reflected in the
cost allocations",
438 costs relating to non-recurring items, star t-up operations and cyclical industries
must be assessed in accordance with certain practices. The placement of this sentence in the same
paragraph as the first sentence suggests that the prac tices that are described in the subsections that
follow are intended to explain how the different types of cost should be accounted for in the
calculation of costs for the purpose of determining whether below-cost prices recover costs within a
reasonable period of time. In this regard, it is instructive to note that as regards start-up costs,
Article 2.2.2.4(ii) requires that the "cost recovery period for a prior generation or model of the product
subject to the investigation" be taken into account when identifying the appropriate reasonable period
of time. In our view, this confirms that the firs t alternative Ramsauer text was intended to require
investigating authorities to determine whether belo w-cost sales recover costs within a "reasonable
period of time" on the basis of the particular circumstances of the investigation at issue.
7.269 The second of the two alternatives adopts a more limited approach to the question of whether
below-cost prices provide for recovery of costs with in a reasonable period of time. The language of
the first alternative requiring consideration of "the pattern of prices and costs pertaining to the product
and industry in question" is missing from the second alternative. Instead, there is a recognition that
below-cost prices will provide for recovery of cost s within a reasonable period of time when those
prices are above weighted average costs for the peri od of investigation. In our view, the focus on
examining whether below-cost prices provide for rec overy of costs within the period of investigation
in contrast to a requirement to take into account "the pattern of prices and costs pertaining to the
product and industry in question" suggests that the second proposed alternative was intended to
emphasize that it would be appropria te to equate the reasonable period of time with the investigation
period, regardless of the factual circumstances.
7.270 As with the first alternative Ramsauer text , the next sentence of the second alternative
provides that, "in addition" to undertaking the asse ssment contemplated in the first sentence, and
"unless already reflected in the cost allocations", costs relating to non-recurring items, start-up
operations and cyclical industries must be assessed in accordance with certain practices. However,
unlike the approach taken in the fi rst alternative Ramsauer text, none of the practices described in the
subsections that follow suggest that the reasonable pe riod of time should be determined in the light of
the particular circumstances of the investigation at issue. In this regard, it is significant that the
"practice" described in respect of start-up costs does not require that the reasonable period of time

438 The "cost allocations" referred to in Article 2.2.2.4 would seem to be those made pursuant to
Article 2.2.2.3 of the Ramsauer text.

must be determined through consideration of the "cost recovery period for a prior generation or model
of the product". Rather, the "practice" that is ca lled for under this alternative formulation envisages
that start-up costs could be appropriately quantified on the basis of "the lowest cost during the period
of investigation". In our view, this supports a reading of the second alternative Ramsauer text which
would indicate that it was intended to emphasize th at it would be appropriate to "determine" that
below-cost sales provide for recovery of cost within a reasonable period of time by equating the
reasonable period of time with the investigation period, regardless of the factual circumstances.
7.271 Thus, in the months immediately preceding the final agreement on the text of the
AD Agreement, negotiators were faced with two al ternative approaches to the question of how to
comply with the obligation in Article 2.2.2 of th e Ramsauer text to determine whether below-cost
sales do not provide for cost recovery within a reasonable period of time. In our view, these two
alternatives are, to differing degrees, reflected in th e arguments of the parties in this dispute. In
particular, to the extent that it has pursued its cl aim by arguing that the "reasonable period of time"
must be always determined on the basis of the particular facts and circumstances of each
investigation, Norway's position mirrors the approa ch described in the first of the two alternative
texts.
7.272 As the final text of Article 2.2.1 demonstrat es, the option that was ultimately agreed upon
reflected the more limited approach set out in the second alternative of the Ra msauer text. The first
sentence of this alternative became the second sentence of Article 2.2.1. Articles 2.2.2.1 and 2.2.2.2
of the Ramsauer text were accepted and inserted as footnotes 4 and 5 of Article 2.2.1. The
subsections relating to the calculation of non-recurri ng costs and start-up costs were finally taken up
in the text, in slightly modified form, in footnote 6 and the last sentence of Article 2.2.1.1, which itself
reflects Article 2.2.2.3 of the Ramsauer text. The only proposed text contained in the Article 2.2.2.4
alternatives that was not accepted was that relating to the calculation of costs incurred by companies
operating in cyclical industries.
7.273 Thus, the negotiators rejected an approach that would have required fact-intensive case-by-
case pronouncements on the "reasonable period of tim e" for the purpose of determining whether
below-cost sales do not provide for recovery of costs within a reasonable period of time, and agreed
instead to adopt a methodology that could result in equating the "reasonable period of time" with the
"period of investigation" regardless of the factual circumstances. However, in doing so, they did not
ignore the concerns expressed about the effects of certain types of costs incurred during the period of
investigation.
439 These concerns were addressed in the last sentence of Article 2.2.1.1 and footnote 6.
As we have already explained, the final version of the last sentence of Article 2.2.1.1 establishes a
cost adjustment mechanism intended to properly acc ount for start-up costs and non-recurring costs in
the cost of production calculated for an investig ated party during the period of investigation. 440 To
this extent, the negotiators recognized that there might well be situations when an investigated party's
costs of production for the period of investigation could be "unusually high", and capable of distorting
the assessment of whether below-cost sales may be treated as not being made in the ordinary course of
trade pursuant to Article 2.2.1. By agreeing on the mechanism set out in the last sentence in
Article 2.2.1.1 and footnote 6, the negotiators ther efore ensured that any such distortions could be
avoided.
7.274 We recall that we have found that an a contrario reading of the second sentence of
Article 2.2.1 would not be inconsiste nt with the general structure of the first sentence of Article 2.2.1,
which as we have observed, does not require investig ating authorities to make specific determinations
of the "extended period of time" or the "substantia l quantities". In addition, we have found that an a
contrario reading of the second sentence of Article 2.2.1 would not be at odds with the flexibility that

439 See, paras. 7.259-7.260.
440 See, paras. 7.252-7.257.

Article 2.2.1 affords investigating authorities wh en identifying the periods of time used for the
purpose of measuring per unit costs. Indeed an a contrario reading of Article 2.2.1 would be
conducive to the effective and expe ditious conduct of investigations, which we consider to be an
important practical considerati on that should not be underestimated, given the consequences of
Norway's arguments for investigating authorities' de terminations of the "reas onable period of time".
Furthermore, we have also found that, to the extent that they seek to address the problems of the kind
that Norway argues require investigating authorities to determine the length of the "reasonable period
of time" on a case-by-case basis, the last sentence of Article 2.2.1.1 and footnote 6 provide strong
contextual support for the view that the last sen tence of Article 2.2.1 was intended to be read a
contrario. In the light of our foregoing analysis, we believe that the work of the treaty negotiators
confirms this observation. In our view, in adopting the text of the last sentence of Article 2.2.1, the
drafters intended to describe a methodology that if applied would result in compliance with the
obligation to "determine" that below-cost sales do not provide for recovery of cost within a reasonable
period of time.
7.275 Thus, for all of the above reasons, we find that the last sentence of Article 2.2.1 was intended
to be read a contrario, such that a finding of sales made at prices above weighted average cost for the
period of investigation would be sufficient to show that all sales not found to be above weighted
average cost for the period of investigation do not provide for the recovery of costs within a
reasonable period of time.
(iv) Conclusion
7.276 We recall that in examining whether domestic sales were made in the ordinary course of trade
pursuant to Article 2(4) of the EC's Basic Regula tion, and therefore by reason of price within the
meaning of Article 2.2.1 of the AD Agreement,
441 the investigating author ity checked to see whether
the sales at issue were made at prices that were equal to or above the weighted average cost of
production for the period of investigation. 442 In applying this methodology, which we have found to
be consistent with the second sentence of Article 2.2.1, 443 the investigating authority determined that
certain domestic sales made by three investigated companies were outside of the ordinary course of
trade by reason of price. 444 It follows from our interpretation of the second sentence of Article 2.2.1
that the investigating authority's exclusion of these sales was not inconsistent with the EC's
obligations under the first sentence of Article 2.2.1.
7.277 Norway also contends that the investigating authority failed to "determine" that the below-
cost sales did not provide for the recovery of a ll costs within a reasonable period of time because its
findings did not include an explicit and unambiguous explanation of why the prices of the sales
discarded did not provide for the recovery of costs within a reasonable period of time. 445 W e
understand Norway's concern to be focused on the a lleged absence of any mention of the terms "cost
recovery" and "reasonable period of time" in the investigating authority's determination, as well as the
alleged lack of any statement of the duration of th e "reasonable period of time". We recall that an
explicit reference to Article 2(4) of the EC's B asic Anti-Dumping Regulation, which repeats the text
and footnotes of Article 2.2.1 of the AD Agreement almost verbatim, was made in the Provisional
Regulation. Thus, the investigating authority's pr ovisional determination did, indirectly, explain in
clear terms that the tests described in paragraphs 23-25 of the Provisional Regulation were intended to
determine whether any below-cost sales did not pr ovide for the recovery of all costs within a
reasonable period of time. Furthermore, as regards the absence of any statement of the duration of the

441 See, para. 7.225.
442 See, para. 7.226.
443 See, paras. 7.225-7.229 and 7.244.
444 See, para. 7.229.
445 See, para. 7.210.

"reasonable period of time", it follows from our inte rpretation of the second sentence of Article 2.2.1
that an investigating authority need not "determi ne", in the sense of making a reasoned conclusion on
the basis of the particular facts of the investigati on at issue, that the "reasonable period of time" is
equivalent to the period of investigation for th e purpose of determining whether below-cost sales do
not provide for the recovery of all costs within a reasonable period of time. In other words, an
investigating authority that acts consistently with the second sentence of Article 2.2.1 need not "state"
that the "reasonable period of time" is equivalent to the period of inv estigation because these two
periods are equated by definition under the express terms of the second sentence.
7.278 Finally, to the extent that we have found that acting in accordance with the second sentence of
Article 2.2.1 is sufficient to demonstrate complianc e with the obligation to "determine" that below-
cost sales do not provide for the recovery of costs wi thin a reasonable period of time, we consider that
the "profitable" sales test applied by the investig ating authority, to the extent that it established
whether net sales prices were above the weighted average cost of production for the period of
investigation, did appropriately assess whether the be low-cost sales at issue did not provide for the
recovery of all costs within a reasonable period of time.
7.279 For all of the above reasons, we therefore dismiss the entirety of Norway's claim that the
investigating authority acted inconsistently with the EC's obligations under Article 2.2.1 of the
AD Agreement when it excluded the domestic sales of certain investigated companies from its
calculation of normal value, on the grounds that they were outside of the ordinary course of trade by
reason of price. In this light, we also dismiss Norway's consequential claim that the EC failed to
comply with Article 2.2 of the AD Agreement beca use the investigating authority constructed the
normal values of the same investigated companies on the basis of a flawed finding that their domestic
sales were outside of the ordinary course of trade by reason of price.
3. Alleged Inconsistency of the EC's Exclusion of Actual SG&A and Profit Data in the
Calculation of Normal Value with Articles 2.2.2 and 2.2 of the AD Agreement
(a) Arguments of the parties
(i) Norway
7.280 Norway claims that the investigating authority acted inconsistently with Article 2.2.2 of the
AD Agreement because it failed to rely on actual data pertaining to sales in the ordinary course of
trade for the purpose of calculating the appropr iate amounts of SG&A cost and profit when
constructing normal value for the investigated parties.
7.281 Norway argues that, in constructing normal value, the EC was required under Article 2.2.2 to
utilise actual SG&A cost and profit data pertaining to all sales made in the ordinary course of trade.
According to Norway, Article 2.2.2 does not permit investigating authorities to reject actual SG&A
cost and profit data simply because the volume of sales from which such data are derived is
considered to be "low".
446 Norway finds support for this view in the Appellate Body's findings in
EC – Tube or Pipe Fittings , which Norway submits stand for the proposition that investigating
authorities must use actual SG&A and profit data fo r sales in the ordinary course of trade whenever
such sales exist, irrespective of the volume of those sales.447

446 Norway, FWS, paras. 373, 384-395.
447 Norway, FWS, paras. 387-395, citing Panel Report, EC – Anti-Dumping Duties on Malleable Cast
Iron Tube or Pipe Fittings from Brazil , para. 138, and Appellate Body Report, European Communities – Anti-
Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil ("EC – Tube or Pipe Fittings") ,
WT/DS219/AB/R, adopted 18 August 2003, paras. 97-98.

7.282 Thus, Norway contends that the investigati ng authority erred when it disregarded actual
SG&A cost and profit data pertaining to domestic sales made in the ordinary course of trade on the
grounds that (i) the volume of such sales, assessed by individual farmed salmon type, amounted to
less than 5 per cent of the volume of export sales of the same salmon type; or (ii) the volume of such
sales that were profitable, assessed by individua l farmed salmon type, amounted to less than 10 per
cent of total domestic sales of the same salmon type. Norway asserts that the investigating authority
acted on this basis when it disregarded the actual SG&A cost data of one investigated party, and the
actual profit data of "at least eight" investigated parties.
7.283 Finally, Norway argues that the less-than-10 per cent profitable sales test applied by the
investigating authority to exclude a portion of the sales at issue, is not a permissible basis for
determining whether sales are made in the ordinary course of trade. As such, the EC could not rely
upon the results of the application of this test as a basis for determining whether it was entitled to
disregard actual profit data from its calculation of constructed normal value. Thus, Norway claims
that the EC's resort to the less-than-10 per cent profitable sales test for the purpose of deciding
whether certain sales were outside of the ordina ry course of trade was inconsistent with both
Articles 2.2 and 2.2.2.
(ii) European Communities
7.284 The EC argues that the investigating authority did not act inconsistently with Article 2.2.2
when it disregarded actual data pertaining to sales in the ordinary course of trade for the purpose of
calculating the appropriate amounts of SG&A cost an d profit when constructing normal value for the
investigated parties. The EC acknowledges that the basis for the investigating authority's non-reliance
on actual data were findings made in respect of the volume of domestic sales compared to export sales
(the 5 per cent sufficiency of sales test), and the volume of profitable domestic sales (the less-than-
10 per cent profitable sales test). However, the EC argues that the investigating authority did not err
when it rejected this data because: (i) in the view of the EC, an implicit qualification in respect of
low-volume sales should be read into the text of the first sentence of Article 2.2.2; and (ii) the less-
than-10 per cent profitable sales test was an or dinary course of trade test, implying that the
investigating authority acted consistently with Article 2.2.2 when it disregarded SG&A cost and profit
data in respect of sales excluded for having failed to satisfy this test.
7.285 The EC contends that Norway's interpretation of Article 2.2.2 is incorrect and argues that this
provision does not preclude investigating authorities from disregarding actual SG&A cost and profit
data pertaining to domestic sales that have been made in low volumes. The EC argues that when
Article 2 is read as a whole, considering both its context and the object and purpose of the
AD Agreement, an implicit qualification in respect of low-volume sales should be read into the text of
the first sentence of Article 2.2.2. The EC submits that if, as Norway suggests, the SG&A cost and
profit data pertaining to sales that have been exclude d for failing to meet the 5 per cent sufficiency of
sales test (prescribed under Article 2.2 of the AD Agreement) are used as the SG&A cost and profit
components of constructed normal value, the effect would be to re-introduce into the calculation of
normal value the same data that Article 2.2 explicitl y excludes. The EC argues that this would render
the possibility of excluding low-volume sales from the calculation of normal value through Article 2.2
a nullity. In particular, it would lead to constr ucted normal values being th e same as normal values
derived from sales disregarded when found to be non-representative, which the EC asserts would have
been the case in the investigation at issue. Thus, the EC submits that if, in particular circumstances,
the usual interpretation of Article 2.2.2 woul d require a comparison to be made between non-
comparable prices, then such an interpretation must necessarily be altered to the extent necessary to
avoid this outcome. To this extent, the EC argu es that it would be mistaken to apply the Appellate
Body ruling in EC – Tube or PipeFittings to the particular facts of the present dispute.

7.286 The EC also considers that an implicit qualifi cation in respect of low volume sales must be
read into the text of the first sentence of Artic le 2.2.2 because it argues that the meaning of the
expression "ordinary course of trade" for the purpose of Article 2.2.2 is independent to the meaning of
the same expression in Article 2.2. The EC argu es that in the absence of giving the notion of
"ordinary course of trade" different meanings in Ar ticles 2.2.2 and 2.2, a "logical circle" would arise
between the operation of Articles 2.2.2 and 2.2.1. This is because, according to the EC, the opening
paragraph of Article 2.2.2 assumes that sales which are in the ordinary course of trade are already
known. However, pursuant to Article 2.2.1, Article 2.2.2 is to be applied in deriving the SG&A costs
necessary to identify the very sales th at may be treated as not being in the ordinary course of trade by
reason of price. The EC contends that the only way this "logical circle" can be broken is if the notion
of "ordinary course of trade" found in Article 2.2. 2 is defined without reference to the notion of
"ordinary course of trade" found in Article 2.2. 1, which it contends implies that the notion of
"ordinary course of trade" found in Article 2.2.2 must also be defined without reference to the notion
of "ordinary course of trade" found in Article 2.2.
7.287 Finally, the EC argues that the less-than-10 per cent profitable sales test that was the basis for
the decision to disregard the actual SG&A and profit da ta of some of the sales at issue, represented an
assessment of whether such sales were ma de in the "ordinary course of trade".
448 As such, the EC
contends that the investigating authority was perfe ctly entitled to disregard the actual SG&A cost and
profit data pertaining to sales that failed to satisfy th is test. In this regard, the EC asserts that when
profitable domestic sales are so few that they cons titute less than 10 per cent of domestic sales, they
can no longer be considered to be in the "ordinary course of trade". The EC justifies this view by,
inter alia, arguing that the less-than-10 per cent profitable sales test is, in fact, "a corollary of the rule
set out in Article 2.2.1 that where more than 80 per cent of sales are profitable even those sales that
are unprofitable should be taken into account when determining normal value."449
(b) Arguments of the third parties
(i) United States
7.288 The United States contends that, in conformity with the Appellate Body's finding in the EC –
Tube or Pipe Fittings case, an investigating authority may not exclude actual data from the calculation
of the profit and SG&A ratios solely because sales were made in low volumes. The United States
disagrees, however, with Norway's assertion that because the EC accepted actual SG&A cost data, it
must also have accepted the actual profit data. According to the United States, an investigating
authority may use actual SG&A data even when actu al profit data is rejected because SG&A costs
relate to the actual selling and gene ral operations of a company. In other words, a fluctuation in
prices does not necessarily result in a related fluctuation in SG&A. In contrast, profit on sales is
directly impacted by the sales price. Thus, depe nding on the facts, it may not be unreasonable for an
investigating authority to reject actual profit data, while accepting SG&A data.
(c) Evaluation by the Panel
7.289 Before assessing the merits of Norway's claims , we briefly describe the extent to which the
investigating authority disregarded actual SG&A cost and profit data when constructing normal value
for the investigated parties.

448 EC, FWS, paras. 218-221, 228-229; EC, SWS, para. 95; EC, Answer to Panel Question 85.
449 EC, FWS, para. 219.

(i) Facts
7.290 The findings set out in the Provisional Regulation, which in this regard were confirmed in the
Definitive Regulation, 450 reveal that normal value was construc ted for eight of the ten investigated
parties.451 The investigating authority constructed normal value by adding to each investigated party's
adjusted cost of manufacture, a reasonable amount for SG&A costs and a reasonable margin of profit.
Before utilising "the SG&A incurred and the prof it realised by each" investigated party on the
domestic market, the investigating authority check ed to see whether it "constituted reliable data". 452
In respect of profit, the investigating authority found that:
"[t]he actual domestic profit margin was c onsidered reliable when the total domestic
sales volume of the company concerned coul d be regarded as representative as
compared to the volume of export sales to the Community. For companies with
overall representative sales, the profit ma rgin was determined on the basis of
domestic sales of those types that were sold in the ordinary course of trade."453
7.291 Domestic sales were considered representativ e when the total domestic sales volume of each
exporting producer was at least 5 per cent of its total export sales volume to the EC. Three companies
were found not to have overall representative sales.454
7.292 Five companies were found to have overall representative sales. 455 The individual company
disclosure documents reveal that some or all of these companies' sales were found not to be
representative at the level of individual salmon types. 456 For the remainder of the sales, relating to

450 Definitive Regulation, Recital 11.
451 Provisional Regulation, Recital 29. Individual disclosures reveal that these companies were
[[XXX]] (Definitive Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-69); [[XXX]] (Definitive
Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-45), [[XXX]] (Definitive Disclosure to [[XXX]],
28 October 2005, Exhibit EC-39), [[XXX]] (Definitive Disc losure to [[XXX]], 28 October 2005, Exhibits EC-
42 and EC-43); [[XXX]] (Definitive Disclosure to [[ XXX]], 28 October 2005, Exhibit NOR-28); [[XXX]]
(Definitive Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-16); [[XXX]] (Definitive Disclosure to
[[XXX]], 28 October 2005, Exhibit NOR-53); an d [[XXX]] (Definitive Disclosure to [[XXX]],
28 October 2005, Exhibit NOR-54).
452 Provisional Regulation, Recital 26.
453 Provisional Regulation, Recital 27.
454 Provisional Regulation, Recital 29. It app ears that these companies were [[XXX]] (Definitive
Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-2 8)]; [[XXX]] (Definitive Disclosure to [[XXX]], 28
October 2005, Exhibit NOR-53); and [[XXX]] (Provisional Disclosure to [[XXX]], 22 April 2005, Exhibit
NOR-120. See also EC, Answer to Panel Question 15; and Norway, Answer to Panel Question 84.
455 Provisional Regulation, Recital 29. It appear s that these companies were [[XXX]] (Definitive
Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-69); [[XXX]] (Definitive Disclosure to [[XXX]],
28 October 2005, Exhibit NOR-45), [[XXX]] (Definitive Disclosure to [[XXX]], 28 October 2005, Exhibit EC-
39), [[XXX]] (Definitive Disclosure to [[XXX]], 28 October 2005, Exhib its EC-42 and EC-43); and [[XXX]]
(Definitive Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-16). We note, however, that [[XXX]]
Definitive Disclosure states that "[i]n terms of overall sales it was established that the domestic sales volume ...
was representative when compared to total domestic plus EU sales ... However, the volume of all PCNs sold
domestically was unrepresentative ... ". It is unclear to us whether [[XXX]] domestic sales were excluded
because they were unrepresentative overall or unrepresentativ e at the level of salmon types. In the light of the
fact that the Provisional Regulation identified five compan ies as having made "overall representative sales" we
have treated [[XXX]] as one of them, by exclusion.
456 It would appear that this was the case in re spect of all domestic sale s of [[XXX]]. Definitive
Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-16.

three of the five companies, it was found that some of these were not in the ordinary course of trade
because they failed the less-than-10 per cent profitable sales test.
457
7.293 No individual findings were made in respect of two investigated companies in the Provisional
Regulation because it was found that "it was not possibl e to conclude on the basis of the information
provided that sales of farmed salmon had been made to unrelated parties at arms length prices". 458
However, individual determinations were made for both companies in the Definitive Regulation.
Although there is no information in the Definitive Regulation that explains how the investigating
authority calculated the normal values of these two companies, the individual company disclosures
reveal that one of these companies, [[XXX]], was combined with [[XXX]] and therefore obtained the
same individual margin as [[XXX]]. 459 The other company, [[XXX]], had its normal value
constructed after it was found that "none of the dom estic sales of the like product per PCN (product
control number) were found to be made in the ordinary course of trade". 460 The extract of this
company's Definitive Disclosure doc ument that has been submitted as evidence in this dispute does
not explain the extent to which the less-than-10 pe r cent profitable sales test was applied in finding
this company's sales were outside of the ordinary course of trade.
7.294 Thus, it is apparent that for eight of the ten investigated companies, the investigating authority
found that the actual domestic profit margin, relating to all or some of their sales, was not reliable
because of the low volume of those sales (5 per cent representative sales test). For three of the ten
investigated companies, the investigating authorit y found that the actual domestic profit margin,
relating to some of their sales, was not reliable because of the low volume of profitable sales (less-
than-10 per cent profitable sales test).
7.295 As regards SG&A costs, the investigating authority found in its Provisional Regulation that it
could provisionally rely upon the company specific information provided by all of the investigated
companies.461 This finding was confirmed in the Definitive Regulation.462 However, in the Definitive
Disclosure to [[XXX]], the investigating authority stated otherwise:
"As regards selling, general and administrative expenses ('SG&A'), the findings of the
provisional disclosure have been revised. Given that [[XXX]] did not sell
representative volumes on the domestic market and therefore these sales were not
made in the ordinary course of trade, S GA were determined on the basis of the
weighted average of the actual amounts de termined for other exporters. This SGA
rate was subsequently based on data pertai ning to all co-operating exporters part of
the sample that made domestic sales in th e ordinary course of trade. It amounts to
[[XXX]] per cent based on turnover.
"463
7.296 Thus, for this one company, the investigating authority found actual SG&A costs to be
unreliable on the basis of the 5 per cent representative sales test.464

457 See, paras. 7.224-7.229. [[XXX]] (Definitive Disclo sure to [[XXX]], 28 October 2005, Exhibit
NOR-69); [[XXX]] (Definitive Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-45); [[XXX]] (Definitive
Disclosure to [[XXX]], 28 October 2005, Exhibits EC-42 and EC-43). See also EC, Answer to Panel
Question 15; and Norway, Answer to Panel Question 84.
458 Provisional Regulation, Recital 18.
459 Definitive Disclosure to [[XXX]], 28 October 2005, Exhibit EC-40.
460 Definitive Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-29.
461 Provisional Regulation, Recital 31.
462 Definitive Regulation, Recital 11.
463 Definitive disclosure to [[XXX]], 28 October 2005, Annex II, pages 2-3, heading "Selling, General
and Administrative Expenses. Exhibit NOR-54.
464 This understanding was also confirmed also by the EC. EC, Answer to Panel Question 18.

(ii) Whether the investigating authority acted in consistently with Ar ticle 2.2.2 of the
AD Agreement
7.297 The first question that we are called upon to r esolve under Norway's Article 2.2.2 claim is
whether an investigating authority may calculate th e amounts of SG&A cost and profit to use in the
construction of normal value by disregarding data pertaining to domestic sales made in "low
volumes", in particular, sales found not to be made in "sufficient quantities" within the meaning of
footnote 2 to Article 2.2. We begin our consider ation of this question by reviewing the text of
Article 2.2.2 of the AD Agreement, which reads:
"For the purpose of paragraph 2, the am ounts for administrative, selling and general
costs and for profits shall be based on actual data pertaining to production and sales in
the ordinary course of trade of the lik e product by the exporter or producer under
investigation. When such amounts cannot be determined on this basis, the amounts
may be determined on the basis of:
 (i) the actual amounts incurred and realized by the exporter or producer
in question in respect of production and sales in the domestic market of the
country of origin of the same general category of products;
 (ii) the weighted average of the act ual amounts incurred and realized by
other exporters or producers subject to investigation in respect of production
and sales of the like product in the domestic market of the country of origin;
 (iii) any other reasonable method, provided that the amount for profit so
established shall not exceed the profit normally realized by other exporters or
producers on sales of products of the same general category in the domestic
market of the country of origin."
7.298 Norway's claim is focused on the first sentence of Article 2.2.2. This sentence states in clear
terms that the amounts for SG&A cost and profits u sed in the calculation of constructed normal value
"shall" be based on "actual data pertaining to production and sales in the ordinary course of trade of
the like product by the exporter or producer under i nvestigation". Article 2.2.2 contains no exception
or qualification to this rule. On its face, it does not appear to envisage the possibility of disregarding
actual SG&A cost and profit data on any other basis th an sales being outside of the ordinary course of
trade. Furthermore, it is instructive to note that compared to Article 2.2 of the AD Agreement, which
explicitly identifies low-volume sales (sales not made in "sufficient quantities") and sales outside of
the ordinary course of trade as two of three co nditions that when satisfied may result in the
construction of normal value, Article 2.2.2 do es not identify low-volume sales as an additional
criterion of relevance to the calculation of appropriate amounts of actual SG&A cost and profit for the
purpose of constructing normal value. Thus, the text of Article 2.2.2, when read in the context of
Article 2.2, suggests in clear terms that Members are not entitled to disregard data pertaining to low-
volume sales (within the meaning of Article 2.2) from the identification of appropriate amounts of
SG&A cost and profit to use in the construction of normal value. In our view, this interpretation is
consistent with the Appellate Body findings in EC – Tube or Pipe Fittings where it held that
Article 2.2.2 does not require that data pertai ning to low-volume sales be excluded from the
calculation of SG&A cost and profits for the purpose of constructing normal value.465
7.299 The EC contends that an interpretation of Ar ticle 2.2.2 that would render impermissible the
exclusion of data pertaining to sales made in "low volumes" from the calculation of SG&A cost and

465 Appellate Body Report, EC – Tube or Pipe Fittings, para. 98. See also, Panel Report, EC – Tube or
Pipe Fittings, paras. 7.121-7.139.

profit, would, in certain factual scenarios, result in findings of dumping based on comparisons
between prices of non-comparable sales. The EC ar gues that if data pertaining to sales found not to
be representative because made in low volumes within the meaning of Article 2.2, are taken into
account when determining SG&A cost and profit u sed for the purpose of constructing normal value,
"the effect will be exactly to reintroduce the info rmation that was previously excluded in accordance
with Article 2.2".
466 The EC describes this "effect" in the following terms:
"The effect concerns sales prices that, in the application of Article 2.2, were
disregarded under the low-volume criterion but would not have been disregarded
under the sales-below-cost criterion.152 Under the narrow interpretation of Article 2.2
that is favoured by Norway the SG&A a nd the profit margins of these sales would
have been used, along with those of the other profitable sales that the EC did use, to
arrive at an average SG&A and profit margin which would then be added to the costs
of various products in order to construct normal values. The crucial element in the
process is that of profit margins. The profit margins that Norway says should be used
for the constructed normal value were determined by the prices charged on sales of
those products — the same prices that had just been disregarded in accordance with
the Article 2.2 low-volume criterion. It is tr ue that instead of being applied directly
back to individual sales the various profit margins on sales of the product under
consideration are subjected to a process of weighted averaging when constructing the
normal value. However, this process of we ighted averaging is in any case applied to
all the costs of the sales whose prices have b een rejected under Article 2.2. Likewise,
even where normal value is based on actual sales prices these prices are subject to
weighted averaging for each type or presen tation of the product u nder consideration.
Whether the data are taken directly from actual sales, or they are split up and brought
together again in constructing a normal valu e, they are the same, and when subjected
to weighted averaging produce the same figure.
SG&A cost and profit, would ru n not only contrary to the express words of Article 2.2 (which
prescribes that low volume "sales do not permit a proper comparison"), but also to the principle in
Article VI:1(a) of the GATT 1994 that price compar isons should only be made between transactions
that are comparable.468
7.301 The EC raises a similar issue that Brazil appears to have raised on appeal in EC – Tube or
Pipe Fittings. The Appellate Body addressed Brazil's concerns in the following manner:
"we note that Brazil further argues, by way of an example, that the Panel's
interpretation of the chapeau of Article 2. 2.2 implies that a constructed normal value
would be identical to a normal value that is based on low-volume sales prices under
Article 2.2. As a result, in Brazil's view, Article 2.2 is rendered ineffective, contrary
to the principles of treaty interpretation in public international law. (Brazil's

466 EC, FWS, para. 244.
467 EC, FWS, para. 245.

appellant's submission, paras. 89-90) We note, as does the European Communities,
that the example posited by Brazil is premised on certain factual assumptions.
(European Communities' appellee's submission, paras. 63-65) We are not convinced
that these factual assumptions necessarily hold true for most anti-dumping
investigations. We are of the view that the possibility of the outcome suggested by
Brazil, based on a certain set of circumstances, cannot overcome the specific text of
the chapeau of Article 2.2.2."
469
7.302 The EC argues that the difference between EC – Tube or Pipe Fittings and the present dispute
is that the particular factual sc enario envisaged in Brazil's exampl e is no longer a possibility, but a
reality. Thus, the EC alleges that the result of taking into account data from non-representative sales
in the present case would have been to construct no rmal values that were identical to the normal
values that would be determined on the basis of the prices of the same non-representative sales.470
7.303 We recognize that the general result described by the EC does raise a real dilemma: how to
reconcile the possibility that prices relating to sal es excluded from the calc ulation of normal value
under Article 2.2 of the AD Agreement, may be reconstructed and relied upon for the very same
purpose through the application of Article 2.2.2? As the EC notes, the problem mainly arises because
of the requirement in Article 2.2.2 that investigating authorities use actual profit margins pertaining to
all sales in the ordinary course of trade when c onstructing normal value. SG&A costs represent the
selling, general and administrative expenses incu rred in the production and sale of a product.
Typically, these will not vary much between different domestic sales because they relate to the same
selling, general and administrative activ ities conducted in respect of all sales. 471 On the other hand,
profit margins are more likely to vary across diffe rent domestic sales, a nd between low-volume and
other sales, because they are related to factors ex ternal to costs actually incurred and depend upon a
company's pricing policy. Thus, we see the main cause of the dilemma identified by the EC to be the
requirement in Article 2.2.2 that actual profit margin s pertaining to all sales in the ordinary course of
trade be used when constructing normal value.
7.304 However, the text of Article 2.2.2 is clear, and it is not our task to read words into the
AD Agreement that are not there. Therefore, on balan ce, in the light of the text of Article 2.2.2, and
the Appellate Body's observations in EC – Tube or Pipe Fittings,472 we find that Article 2.2.2 does not
envisage a "low-volume" sales exception to the rule that SG&A costs and profit used for the purpose
of constructing normal value be calculated on the basis of data pertaining to sales made in the
ordinary course of trade.
7.305 The second argument made by the EC in support of its contention that an implicit
qualification in respect of "low volume" sales must be read into the text of the first sentence of
Article 2.2.2 relates to the meaning of the expression "ordinary course of trade".
473 The EC contends
that the expression "ordinary course of trade", as it appears in Article 2.2.2, should be given an
independent meaning to the same expression found in Articles 2.2.1 and 2.2. In essence, we
understand the EC to be arguing that sales disregar ded from the calculation of normal value because
of their low volume, pursuant to footnote 2 of Articl e 2.2, should be considered to be outside of the
"ordinary course of trade" for th e purpose of Article 2.2.2, even though such sales could not be
considered to be made outside of the "ordinary c ourse of trade" for the purpose of Article 2.2. The

469 Appellate Body Report, EC – Tube or Pipe Fittings, footnote 99.
471 We recognize that this may not always be the case, and that, for instance, different selling methods
may be employed to make different sales of the same product. However, we do not consider that this will be the
typical way that a company will make its sales of the same product.
472 Appellate Body Report, EC – Tube or Pipe Fittings, paras. 93-102, including footnote 99.
473 See, para. 7.286.

EC submits that this conclusion follows from a "logi cal circle" created by the combined operation of
Articles 2.2.1 and 2.2.2, which it argues can only be escaped if the meaning of "ordinary course of
trade" in Article 2.2.2 is independent from its meaning in Articles 2.2.1 and 2.2. The EC describes the
"logical circle" as arising because in order to determ ine whether below-cost sales are outside of the
"ordinary course of trade" by reason of price pursuant to Article 2.2.1, it is first necessary to calculate
SG&A cost, which the EC argues must be done accord ing to Article 2.2.2. However, to calculate
SG&A cost pursuant to Article 2.2.2, one needs to first know what sales are in "ordinary course of
trade".
474
7.306 We can see how, on its face, the language used in Articles 2.2.1 and 2.2.2 may be viewed as
creating what the EC has described to be a "logical circ le". It is true that a determination that below-
cost sales have not been made in the "ordinary course of trade" by reason of price under Article 2.2.1
requires the proper calculation of SG&A costs in accordance with Article 2.2.2. Likewise, we
recognize that the proper calculation of SG&A costs under Article 2.2.2 must be informed by whether
the domestic sales transactions from which the rele vant SG&A data are derived are made in the
"ordinary course of trade". However, we do not ag ree with the EC when it suggests that the only way
to escape the "logical circle" created by the apparent interdependence of these two provisions would
be to give the expression "ordinary course of trade" in Article 2.2.2 a meaning that would result in
finding that low-volume sales could be treated as outside of the "ordinary course of trade" for the
purpose of Article 2.2.2, even when it appears they s hould not be treated as such under Article 2.2. In
our view, the combined operation of Article 2.2.1 and 2.2.2 does not support such a conclusion.
7.307 Although the below-cost sales test in Article 2. 2.1 appears in the text of the AD Agreement
before Article 2.2.2, it is evident that, in practi ce, it cannot be performed without having first made
the calculations referred to in Article 2.2.2. Thus, where an investigating authority intends to perform
the below-cost sales test pursuant to Article 2.2.1, the provisions of Article 2.2.2 must be applied in
advance. We consider that the expression "ordin ary course of trade" in Article 2.2.2 must be
understood in the light of this practical context. In other words, the reference to sales made in the
"ordinary course of trade" in Article 2.2.2 mu st encompass all sales found by the investigating
authority to be in the "ordinary course of trade" at the time of its application. Because there can be no
determination of below-costs sales outside of the "ord inary course of trade" pursuant to Article 2.2.1
before the rules in Article 2.2.2 are applied to calculate SG&A costs, it follows that sales identified as
not being made in the "ordinary course of trade" for the purpose Article 2.2.2 cannot include below-
cost sales found to be outside of the "ordinary course of trade" within the meaning of Article 2.2.1. In
effect, this means that sales found to be outside of the "ordinary course of trade" under Article 2.2.1
cannot also be outside of the "ordinary course of trade" for the purpose of Article 2.2.2.
7.308 We note that Article 2.2.1 does not exhaust the situations when domestic sales may be
considered to be outside of the "ordinary course of trade". Indeed, as the Appellate Body has found,
Article 2.2.1 establishes but one methodology for de termining when below-cost sales may be treated
as not being made in the "ordinary co urse of trade" by reason of price.
475 There may be many other
reasons why domestic sales transactions might not be considered to have been made in the "ordinary
course of trade".476 Thus, to find that sales determined to be outside of the "ordinary course of trade"
under Article 2.2.1 cannot also be considered to be "outside of the or dinary course" for the purpose of
Article 2.2.2, does not render Article 2.2.2 ineffective. Indeed, it is clear to us that the appreciation of
sales in "ordinary course of trade" that is called for under Article 2.2.2 envisages the identification of
all sales that are outside the "ordinary course of trade" by any means other than the below-cost sales
test set out in Article 2.2.1. Given how we unde rstand that Articles 2.2.1 and 2.2.2 are intended to
operate in practice, we cannot see how any other result is practically possible. In this light, we can

474 EC, SWS, para. 87.
475 Appellate Body Report, US – Hot-Rolled Steel, para. 147.
476 Appellate Body Report, US – Hot-Rolled Steel, para. 146.

find no support in the so-called "logical circle" for the EC's suggestion that the notion of sales in the
"ordinary course of trade" must be interpreted in such a manner that would permit "low-volume" sales
to be treated as outside of the "ordinary course of trade" for the purpose of Article 2.2.2.
Data pertaining to sales disregarded on the basis of the application of the 5 per cent low-
volume sales test

7.309 We recall that for eight of the ten investig ated companies, the investigating authority
disregarded the actual domestic profit margins pertaining to some or all of their sales because of the
low volume of those sales (5 per cent low-volume sal es test). For one investigated company, the
investigating authority disregarded actual SG&A costs on the same basis. In this light, and bearing in
mind our conclusions in respect of the proper inte rpretation of Article 2.2.2, we find that the
investigating authority acted inconsistently with the EC's obligations under Article 2.2.2 of the
AD Agreement when it disregarded the actual SG&A and domestic profit margin data pertaining to
some or all sales of these companies because of the low volume of those sales.
Data pertaining to sales disregarded on the basi s of the application of the less-than-10 per
cent profitable sales test

7.310 For three of the ten investigated companies, th e investigating authority found that the actual
domestic profit margin, relating to some of their sales, was not reliable because it was derived from a
low volume of profitable sales (less-than-10 per cent profitable sales test). In the first instance,
Norway argues that the exclusion of this informa tion through the application of the less-than-10 per
cent profitable sales test amounted to disregarding actual profit margin data because of low-volume
sales. The EC contends that the exclusion of the profit margin information was not based on low-
volume sales, but on the investigating authority's findi ng that the sales in question were not made in
the ordinary course of trade. In this regard, th e EC submits that the less-than-10 per cent profitable
sales test is a permissible means of checking whether sales are made in the ordinary course of trade.
Norway argues that the less-than-10 per cent profita ble sales test is not a permissible methodology for
determining whether sales are made in the ordinary course of trade. Thus, a threshold question that
we must resolve under this part of Norway's claim is whether the less-than-10 per cent profitable sales
test is a permissible means of determining whether sales are in the ordinary course of trade.
7.311 We recall that in assessing whether the investigat ed parties' sales were made in the ordinary
course of trade, the investigating authority firs t examined whether any non-profitable (i.e., below-
cost) sales could be disregarded from the calculation of normal value by applying the test set out in
Article 2.2.1.
477 After excluding all below-cost sales that satis fied this test, the investigating authority
next checked to see whether "the volume of profita ble sales [that remained] of any type of farmed
salmon represented less than 10 per cent of the total sales volume of that type". Where this was found
to be the case, "it was considered that this partic ular type was sold in insufficient quantities for the
domestic price to provide an appropriate basi s for the establishment of the normal value". 478
Consequently, the investigating authority disregarded all profitable (i.e., above-cost) sales that did not
account for at least 10 per cent of the volume of all relevant domestic sales. Thus, the investigating
authority determined that all domestic sales of any type of farmed salmon, irrespective of profitability,
could be excluded from its calculation of normal value when the below-cost sales meeting the test set
out in Article 2.2.1 accounted for more than 90 per ce nt of the volume of all relevant domestic sales.
In the words of the EC, "where the overwhelming majority of [an investigated] company's sales

477 See paras. 7.278 - 7.279.
478 Provisional Regulation, Recitals 23-25. These findings were confirmed in the Definitive
Regulation, Recital 11. See also, para. 7.240 above.

[were] made at a loss" the investigating author ity found "the whole of the company's sales as not
being made in the ordinary course of trade".
479
7.312 The AD Agreement does not specifically address the question of whether profitable sales may
be treated as not being made in the ordinary course of trade for the sole reason that they are made in
low volumes. However, it does specifically address th e implications of below-cost sales for ordinary
course of trade determinations and the calculation of normal value. As we have already noted,
Article 2.2.1 establishes a methodology for determin ing when below-cost sales may be treated as
outside of the ordinary course of trade by reason of price.
480 Pursuant to this methodology, below-
cost sales may be found to be outside of the ordinary course of trade, and thereby disregarded from
the calculation of normal value, when three conditions are satisfied – the below-cost sales must be
made: (i) within an extended period of time; (ii) in substantial quantities; and, (iii) at prices which do
not provide for the recovery of all costs within a reasonable period of time.
7.313 To the extent that one of the conditions for findi ng that below-cost sales have not been made
in the ordinary course of trade is that they be made in substantial quantities, Article 2.2.1 recognizes
that the volume of below-cost sales may be determinative of the question whether such sales are made
in the ordinary course of trade. To this end, foot note 5 explains that below-cost sales will be made in
substantial quantities when they represent at least 20 per cent of the volume of transactions under
consideration for the determination of normal value. When this thres hold is not met, an investigating
authority will not be entitled to treat the below-cost sales as outside of the ordinary course of trade by
reason of price. In other words, when 80 per cent or more of an investigated party's domestic sales
are made at above-cost prices, the remaining below-co st sales will not be considered to be outside of
the ordinary course of trade, and must therefor e be taken into account when determining normal
value, unless of course, such below-cost sales can be disregarded for another reason.
7.314 When below-cost sales are made in substantial quantities, Article 2.2.1 provides that they may
be treated as not being made in the ordinary course of trade only when they are made over an
extended period and at pri ces which do not provide for the recovery of all costs within a reasonable
period of time.
7.315 Thus, two of the implications of below-cost sal es for ordinary course of trade determinations
identified in Article 2.2.1 are that: (i) below-cost sales cannot be found to be made outside of the
ordinary course of trade, by reason of price, when they are made in volumes that do not exceed 20 per
cent of the relevant domestic sales; and (ii) below- cost sales may be found to be made outside of the
ordinary course of trade only when all three of the conditions in Article 2.2.1 are satisfied. It is
notable that the possibility of treating both below-cost and above-cost sales as not being made in the
ordinary course of trade when be low-cost sales exceed a certain volu me (for example, 90 per cent) of
domestic sales is not provided for in Article 2.2.1. Given that Arti cle 2.2.1 is intended to address the
implications of below-cost sales for ordinary course of trade determinations, we believe this to be a
telling omission. Had the drafters of Article 2.2.1 considered that a large volume of below-cost sales
could have implications for dete rmining whether a low volume of above-cost sales could be found to
be outside the ordinary course of trade, it could be expected that this would have been expressed in
the text of the only provision of the AD Agreem ent that was specifically designed to address the
implications of below-cost sales on ordinary course of trade determinations. This is even more so
because through the operation of footnote 5, Article 2. 2.1 does in fact specifically envisage that large
volumes of above-cost sales will have implications for determining whether low volumes of below-
cost sales may be found to be in the ordinary cour se of trade. Thus, the absence of any recognition of
the possibility that large volumes of below-cost sal es may imply that low volumes of above-cost sales
could be treated as not being made in the ordinary course of trade suggests that the drafters did not

479 EC, Opening Statement at the Second Substantive Meeting of the Parties, para. 58.
480 See, paras. 7.258- 7.273.

envisage that a low volume of above-cost sales coul d be determinative of whether such sales were
made in the ordinary course of trade.
7.316 We find support for this conclusion in Article 2.2. Read together with footnote 2, Article 2.2
provides that domestic sales constituting less than 5 per cent of the volume of export sales of the
product under consideration shall not be consider ed to permit a proper comparison between export
price and normal value, and must therefore be disregarded from the calculation of normal value.
Thus, when domestic sales are made in low volumes relative to export sales, they cannot be used in
the calculation of normal value. In our view, Article 2.2 demonstrates that when the drafters of the
AD Agreement believed that the low volume of dom estic sales should be taken into account for the
purpose of calculating normal value, they specifically said so. And in doing so, we note that they did
not distinguish between different volumes of profitable or non-profitable domestic sales.
7.317 Finally, we note that one of the justificati ons the EC advances for the less-than-10 per cent
profitable sales test is that it provides "a comple ment to the less-than-20 per cent unprofitable rule"
that is set out in footnote 5 to Article 2.2.1, and thereby "helps to achieve the goal of even-handedness
that was identified by the Appellate Body".
481 In making this statement, we understand the EC to
suggest that the application of Article 2.2.1 may result in findings that are not "even-handed" and "fair
to all parties affected by an anti-dumping investigation". 482 We are not convinced that the drafters of
Article 2.2.1 agreed to establish a rule that coul d itself only result in "even-handed" findings when
applied in conjunction with another rule that do es not appear elsewhere in the provisions of the
AD Agreement. By agreeing to the rules in footnot e 5, it is evident that the drafters of the
AD Agreement recognized that a minimum volume of be low-cost sales is not incompatible with sales
being made in the ordinary course of trade. As such, the result achieved through the operation of
footnote 5 is, in and of itself, fair and even-hande d, and therefore does not require the application of
any complementary rule to ensure that normal value is appropriately calculated.
7.318 Therefore, for all of the above reasons, we fi nd that the less-than-10 per cent profitable sales
test applied by the investigating authority in the i nvestigation at issue is an impermissible means of
determining whether domestic sales are in the ordinary course of trade. We recall that the
investigating authority disregarded the actual prof it margins on certain domestic sales of three of the
ten investigated parties on the basis of the less-than-10 per cent profitable sales test. Because we have
found that the less-than-10 per cent profitable sales test is not a permissible means of determining
whether domestic sales are made outside of the ordina ry course of trade, the investigating authority's
decision to disregard the profit margin data of three of the ten investigated parties cannot be justified
under the terms of Article 2.2.2. Thus, to the extent that the investigating authority did not rely upon
the profit margin data pertaining to certain sales made by [[XXX]], [[XXX]] and [[XXX]] on the basis
of the less-than-10 per cent profita ble sales test, we find that the investigating authority acted
inconsistently with the EC's obligations under Article 2.2.2 of the AD Agreement.
7.319 In the light of our finding in respect of Norw ay's claim under Article 2.2.2, we do not believe
it is necessary, for the purpose of satisfactorily reso lving this dispute, to also decide whether the
investigating authority's application of the less-than -10 per cent profitable sales test was inconsistent
with Article 2.2 of the AD Agreement. Therefore, on the grounds of judicial economy, we make no
findings in respect of Norway's claim that th e less-than-10 per cent profitable sales test was
inconsistent with Article 2.2 of the AD Agreement.

481 EC, Answer to Panel Question 85.
482 Appellate Body Report, US – Hot-Rolled Steel, para. 147.

4. Alleged Inconsistency of the EC's Reliance on "Facts Available" in the Calculation of
Grieg Seafood's Normal Value with Article 6.8 and Paragraphs 3 and 6 of Annex II of
the AD Agreement
(a) Arguments of the parties
(i) Norway
7.320 Norway claims that the investigating authorit y relied on "facts available" to establish the
constructed normal value for one of the investigated companies, Grieg Seafood AS ("Grieg"), without
respecting the conditions governing the use of "facts av ailable" set out in Article 6.8 and paragraphs 3
and 6 of Annex II. Norway's complaint relates to the investigating authority's establishment of the
amounts used for filleting and finance costs in the calculation of Grieg's cost of production.
7.321 Norway submits that the AD Agreement distin guishes between primary source information
obtained from the investigated company and secondary source information obtained from another
source, and that secondary source in formation is referred to as "facts available" or "best information
available". Thus, if an investigating authority do es not use information submitted by an investigated
company, it automatically uses secondary source info rmation or "facts available", and must therefore
comply with the conditions governing the use of such information in Article 6.8 and Annex II.
7.322 Norway alleges that the investigating authority did not respect the conditions in paragraphs 3
and 6 of Annex II when it used "facts available" to calculate Grieg's filleting costs because the
information provided by Grieg to the investigating authority in response to the deficiency notice was
verifiable, submitted in a timely fashion and could be used without undue difficulties. In particular,
Norway argues that although the requested info rmation was submitted af ter the investigating
authority's verification of Grieg's initial questionnai re response at Grieg's premises in Norway, the
investigating authority could have asked Grieg to provide additional data to assist it verify the
submitted information, had it been considered unr eliable. However, according to Norway, the
investigating authority failed to do so. Moreover, No rway contends that there is no indication that the
investigating authority even considered how the info rmation submitted by Grieg could be verified. It
simply decided not to accept it because the inform ation had not been presented during the on-site
investigation at Grieg's premises. Norway cons iders that the information on filleting costs was
submitted in a timely fashion because it was provided approximately one week after the investigating
authority's written disclosure of the position it had take n in respect of Grieg's cost of production, at a
stage when the investigation was still ongoing. Fu rthermore, in Norway's view, the information
submitted by Grieg could also be used without un due difficulties, and the investigating authority
never provided an explanation why this was not the case.
7.323 Likewise, as regards the calculation of Grie g's finance costs, Norway argues that the
investigating authority did not respect the conditi ons in paragraphs 3 and 6 of Annex II because the
information provided by Grieg to the investigati ng authority was verifiable, submitted in a timely
fashion and could be used without undue difficulties.
7.324 Finally, in response to the EC's arguments, No rway submits that the Panel does not have to
resolve the interpretive question of how Article 9.4 of the AD Agreement is intended to apply in the
event that all margins of dumping for investigated producers were calculated on the basis of "facts
available", because the investigating authorit y calculated several margins of dumping in the
investigation at issue without resorting to "facts available". Thus, the Panel need not address the
question raised by the EC's arguments for the purpose of resolving the present dispute.

(ii) European Communities
7.325 In the first instance, the EC argues that it did not rely on "facts available" in determining the
appropriate amount of filleting costs for the purpose of constructing Grieg's normal value. The EC
contends that the conditions for resorting to "facts available" were not satisfied on the basis of the
circumstances at issue, in particular, "because of the confused situation in which some of the
information was in the hands of another company". 483 However, because the necessary information
could not be obtained from Grieg, the EC argues th at the investigating authority was entitled not to
"invoke" "the particular process for a rriving at conclusions on factual issues" 484 that is envisaged in
Article 6.8. Thus, the EC argues that, in the pa rticular circumstances of the investigation, the
investigating authority was entitled to rely on inform ation other than "facts available". In any case,
the EC submits that even if the conditions for usin g "facts available" were established in respect to
Grieg's filleting costs, an alternative to using "f acts available" is contemplated under Article 6.8
because the text is only permissive in nature, not manda tory. In this regard, the EC contends that "if
there is no alternative to using facts available when information is not forthcoming, investigations
would reach an impasse regarding the application of Article 9.4 and the extension of an average
margin to non-investigated exporters in situati ons where none of the investigated companies had
cooperated".485
7.326 Secondly, the EC argues that the investigating authority did not act inconsistently with
paragraph 3 of Annex II in assessing Grieg's filleting costs because, in its view, the information on
filleting costs could not be verified once submitt ed after the verification conducted on Grieg's
premises in Norway. Furthermore, the EC conte nds that there was no viol ation of paragraph 6 of
Annex II because the inadequacies of Grieg's filleting cost information must have been apparent to
Grieg in the light of the discussions held during the verification visit. The EC also argues that the
language of paragraph 6 only requires that an i nvestigating authority "should" (and not "shall")
provide investigated parties with the reasons for not accepting information.
7.327 The EC contests Norway's claim in respect of fi nance costs by arguing that the issue before
the Panel is not how it treated the evidence subm itted by Grieg and whether it relied on "facts
available". The EC asserts that Norway's complaint relates to the decision taken by the investigating
authority to apply a particular calculation methodolog y, instead of relying on the actual data for these
costs that was supplied by Grieg. In this regard, the EC argues that it did not reject Grieg's data, but
simply took a decision to apply a particular benc hmark to assess Grieg's costs, which it considered
was of a commercial nature. Thus, the EC argues that it did not rely on "facts available" in
determining the appropriate amount of finance co sts for the purpose of constructing Grieg's normal
value.
(b) Arguments of the third parties
(i) Korea
7.328 Korea asserts that Article 6.8 and paragraphs 3 and 6 of Annex II of the AD Agreement do
not provide a carte blanche to an investigating authority cond ucting an anti-dumping investigation
whenever it encounters less than optimal informat ion from a foreign respondent. Instead, these
provisions unequivocally provide conditions that n eed to be satisfied before the investigating
authority applies the facts available standard. In particular, Korea notes that paragraph 3 of Annex II
stipulates that all verifiable information that can be used in the investigation without undue difficulties
should be taken into account by the investigating auth ority; and that paragraph 6 of Annex II, in turn,

483 EC, FWS, para. 287; EC, Answer to Panel Question 20.
484 EC, Answer to Panel Question 24.
485 EC, FWS, footnote 165.

stipulates that if the investigating authority plans to apply facts ava ilable, it must inform the foreign
respondent of the reason and offer another opportunity to provide th e requested information within a
reasonable period of time.
7.329 Korea argues that in the underlying investiga tion, the EC applied "facts available" in a
manner that was inconsistent with these provisions a nd rejected the information submitted by Grieg.
Given the circumstances and in the light of the communication between the investigating authority
and Grieg, Korea believes that Grieg cooperated with the EC investigation in a reasonable manner.
7.330 Thus, Korea submits that the EC's rejection of the Grieg's information was unreasonable and
unwarranted. The EC's recourse to "facts available" , therefore, constituted a violation of Article 6.8
and paragraphs 3 and 6 of Annex II of the AD Agreement.
(c) Evaluation by the Panel
(i) Whether the investigating authority acted incons istently with Article 6.8 and paragraphs 3
and 6 of Annex II when it calculated Grieg's filleting costs

7.331 Norway claims that the investigating authority relied on "facts available" to establish Grieg's
filleting costs for the purpose of constructing normal value, without respecting the conditions
governing the use of "facts available" set out in Artic le 6.8 and paragraphs 3 and 6 of Annex II. The
EC acknowledges that the investigating authority did not determine Grieg's filleting cost on the basis
of the information submitted by Grieg, and that it in stead used another source of information to derive
those costs. However, according to the EC, the investigating authority 's actions were not inconsistent
with Article 6.8 and Annex II of th e AD Agreement for essentially two alternative reasons: first, the
EC argues that the investigating authority's reliance on information not submitted by Grieg did not
amount to using "facts available", within the meaning of Article 6.8 486; and second, in any case, the
EC argues that the investigating authority's condu ct fully complied with paragraphs 3 and 6 of
Annex II, thereby entitling it to rely upon "facts available". 487 Before turning to address Norway's
claims, we believe it is useful to first set out so me of the relevant facts surrounding the investigating
authority's calculation of Grieg's filleting costs.
 Facts

7.332 The investigating authority issued the investig ated parties with the "exporters/producers"
questionnaire for the purpose of collecting info rmation relevant to its investigation on
24 November 2004.488 On 15 December 2004, the EC faxe d to Grieg a pre-verification letter
confirming its intention to undertake a verifica tion visit on the premises of Grieg on 10 and
11 January 2005.489 The same letter reminded Grieg that the deadline for its completed questionnaire
response was 3 January 2005. It requested Grieg to have "all costs and financial accounting records
and supporting documents available, including all worksheets used to prepare the replies to the
questionnaire and all schedules reconciling the data reco rded in the questionnaires to the source data".
It also provided a "non-exhaustive list of items whic h should be prepared and available" for the start
of the verification visit comprising:
• "Reconciliations between the companies [s ic] audited financial statements and
the information submitted in the ques tionnaire response relating to sales
quantities, sales values and costs of production of the product concerned.

486 See, in particular, EC, FWS, paras. 256, 274, 287 and 290.
487 EC, FWS, paras. 291-303.
488 Exhibit EC-6.
489 Exhibit EC-8.

• ... all incoming and outgoing invoices from 1 October 2003 to
30 September 2004, the inputs for the production of the product concerned or
any other cost relating directly or indirectly to the product concerned.
• All documents relating to domestic and export sales, including shipping and
payment documents and, where applicable, customs documents.
• Full details on production costs, over heads and SG&A expenses including
production reports.
• The original contract documents.
• With regard to any allowances or ad justments eventually considered under
Section G of the anti-dumping questionnaire , please be prepared to justify these
in detail and have all relevant supporting evidence readily available."
7.333 On 8 March 2005, approximately two months after the on-site verification of Grieg's
questionnaire reply, the investigating authority sent Grieg an "Information Note on Cost of
Production" setting out its "preliminary assessment" of Grieg's cost of production.
490 In disclosing the
"general methodology" applied by the investigating authority to calculate Grieg's cost of production,
the Note stated that "[w]here no information [was] provided by the relevant company for certain costs
or when these costs were not available, these have been obtained as an average from other sources
according to the best information available".
7.334 The Information Note revealed that the inves tigating authority was of the view that no
filleting costs had been reported because they could not be found in the accounts of Grieg Seafood
Rogaland (the production company of the Grieg Seafood Group), [[XXX]]. The investigating
authority rectified this apparent lack of informa tion by calculating Grieg's filleting costs using "cost
per unit information acquired from another co-opera ting producer in Norway", and adding [[XXX]]
NOK/kg to Grieg's cost of production.491
7.335 On 16 March 2005, Grieg responded to the investig ating authority's Information Note. Grieg
explained that during the period of investigation, it had produced filleted pr oducts with a company
called Triton, which was unrelated to the Grieg Se afood Group. Grieg's response attached a letter
from Triton setting out the per kilogram filleting pri ces charged to Grieg for its services for the period
2003 and 2004. The letter noted that such prices were [[XXX]] a [[XXX]] between Grieg and Triton
dated [[XXX]]. 492 Grieg's response revealed that it consid ered its filleting costs for the period of
investigation were [[XXX]] NOK/kg.493
7.336 In the Disclosure of its Provisional Determinati on, the investigating authority confirmed its
"preliminary assessment" of Grieg's filleting costs. In addition, after referring to Grieg's response to
the Information Note, the investigating authority not ed that "the cost per kilo used may be re-
examined during the definitive stage". Grieg resp onded to the investigating authority's Provisional
Determination, repeating the comments already made in respect of filleting costs.494
7.337 The investigating authority's Definitive Determ ination confirmed the findings made at the
provisional stage. The investigating authority recalled the findings made in the previous

490 Information Note on Cost of Production, Exhibit NOR-55.
491 Information Note on Cost of Production, Exhibit NOR-55.
492 Response to Information Note on Production Costs, Exhibit NOR-56.
493 Response to Information Note on Production Costs, Exhibit NOR-56.
494 Response to EC Provisional Disclosure to Grieg, Exhibit NOR-57.

communications and disclosures to Grieg, stating a dditionally that after considering the information
submitted by Grieg, it decided to confirm its fi ndings because "at verification [Grieg] could not
support the statements made at a later date".
495
 The assertion that the investigating auth ority did not rely on "facts available"

7.338 The EC does not contest that the investigating authority determined Grieg's filleting costs on
the basis of information that was, in part, not submitted by Grieg. However, it argues that the
investigating authority's actions did not amount to th e use of "facts available", within the meaning of
Article 6.8. In particular, the EC asserts that although Grieg eventually provided information in
respect of its filleting costs, it did so in the form of a letter from another company, and not on the
basis of information from its own accounts. Th e EC submits that this created a "confusing
situation",
496 but one that could not justify resorting to "facts available" within the meaning of
Article 6.8. Confronted with these facts, the EC argues that the only option for the investigating
authority was to base Grieg's filleting costs on info rmation from "another relevant source, one that
[the investigating authority] could trust to gi ve a proper commercial figure and which had been
verified".497
7.339 As we understand it, the basis of the EC's assertion that the investigating authority did not
rely on "facts available" when determining Grieg's filleting costs is the contention that it is possible,
under Article 6.8, for an investigating authority to rely upon information other than "facts available"
when an interested party has provided information to an investigating authority that falls short of what
is necessary for it to make the required determina tion. More specifically, we understand the EC's
defence to Norway's claim to be premised on the view that Article 6.8 envisages the possibility that an
investigating authority may rely on information othe r than that submitted by an interested party in
response to a request for informati on, even when the conditions for di sregarding that information and
using "facts available" under Article 6.8 have not been established.
7.340 We first turn to text of Article 6.8, which reads:
"In cases in which any interested party refuses access to, or otherwise does not
provide, necessary information within a reasonable period or significantly impedes
the investigation, preliminary and final determinations , affirmative or negative, may
be made on the basis of the facts available . The provisions of Annex II shall be
observed in the application of this paragraph." (Underline added).
7.341 Article 6.8 addresses the situation where "necessary information" for making
"determinations" is held by an interested party, but not provided to the investigating authority within a
reasonable period. In particular, Article 6.8 speci fies that where an inter ested party refuses access to,
or otherwise does not provide, "necessary informati on" within a reasonable period, or where an
interested party significantly impedes the inves tigation, an investigating authority "may" make
"determinations" on the basis of "facts available". We note that Article 6.8 contemplates no other
possibilities. Thus, where "necessary information" is not forthcoming, an investigating authority
"may" make " determinations" on the basis of "facts available".
7.342 Article 6.8 requires that the provisions of Annex II be observed in its application.
Paragraph 1 of Annex II provides:

495 Definitive Disclosure to Grieg, 28 October 2005, Exhibit NOR-16.
496 EC, FWS, para. 287.
497 EC, FWS, para. 290.

"As soon as possible after the initiation of the investigation, the investigating
authorities should specify in detail the information required from any interested party ,
and the manner in which that information shou ld be structured by the interested party
in its response. The authorities should also ensure that the party is aware that if
information is not supplied within a reasonable time, the authorities will be free to
make determinations on the basis of the facts available , including those contained in
the application for the initiation of the investigation by the domestic industry."
(Underline added).
7.343 In establishing that investigating authorities should ensure that respondents receive proper
notice of their right to use "facts available" in making determinations, pa ragraph 1 of Annex II
provides important guidance on the meaning of the te rm "necessary information" that is found in
Article 6.8. Specifically, pursuant to paragrap h 1, investigating authorities should provide
investigated parties with notice of the "information required" and the possibility that "if information is
not supplied within a reasonable time", "determi nations" may be made on the basis of "facts
available". When read together with Article 6.8, this language suggests that "necessary information"
refers to the specific information held by an inter ested party that is requested by an investigating
authority for the purpose of making determinations.
7.344 We recall that in the investigation at issue, the investigating authority requested Grieg to
provide information about its actual filleting costs in the "exporters/producers" questionnaire. This
information was specifically required by the inv estigating authority for the purpose of determining
Grieg's filleting costs in order to calculate Grieg's constructed normal value. Thus, the information on
Grieg's actual filleting costs that was request ed by the investigating authority was "necessary
information" within the meaning of Article 6.8. We do not understand the EC to argue otherwise. It
follows that the investigating authority's treatment of the information submitted by Grieg fell within
the scope of Article 6.8 and Annex II.
7.345 Paragraph 3 of Annex II reads, in pertinent part:
"All information which is verifiable, which is appropriately submitted so that it can
be used in the investigation without undue difficulties, which is supplied in a timely
fashion, and, where applicable, which is supplied in a medium or computer language
requested by the authorities, should be take n into account when determinations are
made." (Underline added).
7.346 As an integral part of Article 6.8, paragra ph 3 of Annex II identifies one circumstance when
the conditions for resorting to "facts available" will not be established – namely, when the information
that is provided by an interested party in response to a specific request from an investigating authority
"is verifiable, ... appropriately submitted so that it can be used in the investigation without undue
difficulties, ... supplied in a timely fashion, and, where applicable, ... supplied in a medium or
computer language requested by the authorities". For present purposes, it is important to note that
when the information submitted is of the character described in paragraph 3, it "should be taken into
account when determinations are made" . It follows that when the conditions for resorting to "facts
available" have not been established, the specific informati on provided by an interested party in
response to a request from an investigating authority must be taken into account in the investigating
authority's determination. We find support for this conclusion in the following statements of the
Appellate Body in US – Hot-Rolled Steel:
"Thus, according to paragraph 3 of Annex II, investigating authorities are directed to
use information if three, and, in some circumstances, four, conditions are satisfied. In
our view, it follows that if these conditions are met, investigating authorities are not

entitled to reject information submitted, when making a determination
."498 (Underline
added.)
and the Panel in US – Steel Plate:

"If, after considering the provisions of A nnex II, and in particular the criteria of
paragraph 3, the conclusion is that in formation provided satisfies the conditions
therein, the investigating authority must use that information in its determinations ,
and may not resort to facts available with respect to that element of information. That
is, the investigating authority may not conclude , with respect to that information, that
"necessary information" has not been provided."499 (Underline added).
7.347 Thus, we do not agree with the EC when it ar gues that Article 6.8 envisages the possibility
that an investigating authority may rely upon informa tion other than that submitted by an interested
party in response to a specific requ est for information, even when th e conditions for disregarding that
information and using "facts ava ilable" under Article 6.8 have not been established. Such a view of
how Article 6.8 and Annex II are intended to operate is misconceived. In our view, it is clear from the
language of Article 6.8, when read in the light of paragraphs 1 and 3 of Annex II, that whenever an
interested party submits specific information that an investigating authority has requested for the
purpose of making a determination, and the conditions for resorting to "facts available" have not been
established, the investigating authority will not be entitled to disregard the submitted information and
use information from another source to make the determination.
7.348 To support its contention that the investigating authority did not rely on "facts available" in
the present case, the EC also argues that even when the conditions for resorting to "facts available" are
established, investigating authorities are nevertheless entitled not to rely upon "facts available"
because Article 6.8 makes their use permissible a nd not mandatory. We agree with the EC that
Article 6.8 does not require investigating authorities to use "facts available" when the conditions for
resorting to "facts available" have been satisfied. However, in our view, the flexibility afforded to
investigating authorities through the use of the word "may" in Article 6.8, when all conditions for
using "facts available" have been satisfied, must be understood in the context of two possible choices:
an investigating authority "may" use "facts available" to fill the information gap created by the lack of
"necessary information" or, an investigating authority "may" not use "facts available", and to the
extent possible, rely on the information submitted by the interested party that has resulted in the
conditions for using "facts available" to be established. We consider that the text of Article 6.8 and
Annex II permits no other outcome, in a situation where the conditions for using "facts available"
have been satisfied.
7.349 Finally, according to the EC, an alternative to "facts available" or specific information
submitted by an interested party must exist because if this were not the case, investigating authorities
would be unable to calculate an average margin of dumping for non-investigated companies pursuant
to Article 9.4 of the AD Agreement in situations where the margins of dumping for all investigated
companies were determined through the use of "f acts available". Article 9.4 describes how anti-
dumping duties applied to imports from exporters or producers not included in a limited examination
conducted pursuant to Article 6.10 must be calculated. 500 It envisages the application of two possible

498 Appellate Body Report, US – Hot-Rolled Steel, para. 81.
499 Panel Report, United States – Anti-Dumping and Countervailing Measures on Steel Plate from India
("US – Steel Plate"), WT/DS206/R and Corr.1, adopted 29 July 2002, DSR 2002:VI, 2073, para. 7.55.
500 The pertinent text of Article 9.4 provides:
"When the authorities have limited their examin ation in accordance with the second sentence
of paragraph 10 of Article 6, any anti-dumping duty applied to imports from exporters or
producers not included in the examination shall not exceed:

methodologies for this purpose, each subject to the qua lification that "margins established under the
circumstances referred to in paragraph 8 of Article 6" be disregarded from the calculation. According
to the EC, if all margins established on the basis of "facts available" pursuant to Article 6.8 must be
disregarded in calculating the anti-dumping duties app licable to companies not included in a limited
investigation, the only way to determine such anti-dumping duties would be through recourse to
information other than "facts available".
7.350 In US – Hot-Rolled Steel , the Appellate Body observed that Article 9.4 "does not expressly
address the issue of how [anti-dumping duties applicable to non- investigated exporters or producers]
should be calculated in the event that all margins are to be excluded from the calculation." 501 The
Appellate Body described this ap parent lack of guidance as a " lacuna" in the text of the
AD Agreement.502 However, on the basis of the particular questions raised in the appeal that was
before it, the Appellate Body decided that it was not necessary to address how this lacuna might be
overcome.503
7.351 We recall that the question that is before us under Norway's claim is whether the investigating
authority relied on "facts available" to establish Gr ieg's filleting costs for the purpose of constructing
normal value, without respecting the conditions governing the use of "facts available" set out in
Article 6.8 and paragraphs 3 and 6 of Annex II. Norway does not claim that the investigating
authority calculated anti-dumping duties for non-investig ated parties on the basis of information that
was neither "facts available" nor information submitted by the investigated parties. Thus, we believe
that we are not directly called upon to resolve the question of how to overcome the lacuna in
Article 9.4. In any case, we note that the specific problem raised by the existence of this lacuna is not
about the sources for particular pieces of missing information, but rather the appropriate methodology
that may be used to calculate anti-dumping duties applicable to non-investigated parties, where the
methodologies explicitly provided for under Article 9.4 cannot be relied upon.
7.352 Thus, for all of the above reasons, we are not convinced by the arguments that the EC has
advanced to substantiate the assertion that the inv estigating authority did not rely on "facts available"
when it calculated Grieg's filleting costs. To the extent that the investigating authority considered that
the conditions for using "facts available" had not been met, our assessment of Article 6.8 and
Annex II implies that it should have used the data s upplied by Grieg. The investigating authority was
not entitled to use any other source of information to make its determination of Grieg's filleting costs,
be that "facts available" or otherwise. On the other hand, even assuming that the conditions for using
"facts available" had been satisfied, the only opti on available to the inves tigating authority under
Article 6.8 and Annex II, if it did not want to u se the information submitted by Grieg, was to use
"facts available". On these bases, we therefore dismiss the EC's assertion that the investigating
authority did not rely on "facts available" when it calculated Grieg's filleting costs.504

 (i) the weighted average margin of dumping established with respect to the
selected exporters or producers or,
 (ii) where the liability for payment of anti-dumping duties is calculated on the
basis of a prospective normal value, th e difference between the weighted average
normal value of the selected exporters or producers and the export prices of exporters
or producers not individually examined,
provided that the authorities shall disregard for the purpose of this paragraph any ... margins
established under the circumstances referred to in paragraph 8 of Article 6. ...".
501 Appellate Body Report, US – Hot-Rolled Steel, para. 126. Emphasis original.
502 Appellate Body Report, US – Hot-Rolled Steel, paras. 125 and 126.
503 Appellate Body Report, US – Hot-Rolled Steel, para. 26.
504 In this regard, we note that the Information Note on Cost of Production issued to Grieg on
8 March 2005 explained that the "general methodology" applied by the investigating authority "[w]here no
information [was] provided by the relevant company for ce rtain costs or when these costs were not available",

7.353 We now proceed to examine Norway's claim th at the investigating authority used "facts
available" without complying with the requirements of paragraphs 3 and 6 of Annex II.
Whether the investigating authority acted incons istently with paragraph 3 of Annex II when it
disregarded the information subm itted by Grieg and used informa tion from a third party to
determine Grieg's filleting costs

7.354 As already noted, Annex II of the AD Agreem ent forms an integral part of Article 6.8.
505
Thus, in order to fully comply with Article 6.8, an investigating authority's use of "facts available"
must, in addition to satisfying the requirements of Ar ticle 6.8, be consistent with the rules set out in
Annex II. Norway alleges that the investigati ng authority calculated Grieg's filleting costs on the
basis of "facts available" without meeting the re quirements of paragraph 3 of Annex II. This
provision reads:
"All information which is verifiable , which is appropriately submitted so that it can
be used in the investigation without undue difficulties , which is supplied in a timely
fashion, and, where applicable, which is supplied in a medium or computer language
requested by the authorities, should be take n into account when determinations are
made. If a party does not respond in the pr eferred medium or computer language but
the authorities find that the circumstances set out in paragraph 2 have been satisfied,
the failure to respond in the preferred me dium or computer language should not be
considered to significantly impede the investigation." (Underline added.)
7.355 Paragraph 3 of Annex II directs investigating authorities to take all submitted information into
account for the purpose of its determinations when it is: (i) "verifiable"; (ii) "appropriately submitted
so that it can be used in the investigation w ithout undue difficulties"; (iii) "supplied in a timely
fashion"; and, where applicable, (iv) "supplied in a medium or computer language requested by the
authorities". Thus, paragraph 3 of Annex II calls upon investigating authorities to take into account
all information that satisfies three, or some times four, cumulative conditions when making
determinations. It follows that where all of the conditions are satisfied, an investigating authority will
not be entitled to reject informati on submitted when making determinations.
506 Norway's claim is
focused on whether the information supplied by Grieg in respect of filleting costs satisfied the first
three of these conditions. We must therefore examine whether the letter from Triton submitted by
Grieg was "verifiable", "appropriately submitted so th at it can be used in the investigation without
undue difficulties" and "supplied in a timely fashion".
7.356 We recall that the only basis that the investig ating authority gave in writing for rejecting the
information submitted by Grieg in respect of filleti ng costs was that "at verification [Grieg] could not
support the statements made at a later date". 507 The investigating authority rejected the filleting cost
data submitted by Grieg in March 2005 because it was not presented to the investigators at the time of
the on-the-spot investigation carried out in Janua ry 2005. We understand the EC to be arguing that
this was a sufficient basis for the investigating authority to conclude that the information submitted by
Grieg did not satisfy one or all of the firs t three conditions in paragraph 3 of Annex II. 508 In other
words, the EC argues that the filleting cost information provided by Grieg was not "verifiable",
"appropriately submitted so that it can be used in the investigation without undue difficulties" and/or

was to calculate the relevant costs on the basis of "an average from other sources according to the best
information available ". Exhibit NOR-55. Underline added. In our view, this suggests that even the
investigating authority itself believed that it used "facts available" when it calculated Grieg's filleting costs.
505 See, para. 7.346.
506 Appellate Body Report, US – Hot-Rolled Steel, para. 81; Panel Report, US – Steel Plate, para. 7.57.
507 Definitive Disclosure to Grieg, 28 October 2005, Exhibit NOR-16.
508 EC, FWS, paras. 294-298.

"supplied in a timely fashion", because it was s ubmitted after the investigating authority had
conducted an on-the-spot investigation at Grieg's premises.
- Whether Grieg's filleting cost information was "verifiable"
7.357 The ordinary meaning of the word "verifiable" is "able to be verified or proved to be true." 509
In US – Steel Plate , the Panel considered that "verifiable" information for the purpose of paragraph 3
of Annex II was information whose "accuracy a nd reliability ... can be assessed by an objective
process of examination".510 We find this to be a useful descripti on of what is intended by "verifiable"
information under this paragraph.
7.358 Although the possibility of conducting on-the-spot investigations to verify information
submitted by an investigated company is explicitly provided for under Article 6.7 and Annex I of the
AD Agreement, such investigations are not required under the AD Agreement. Moreover, as noted
by the Panel in US – Steel Plate , pursuant to Article 6.6 of th e AD Agreement, investigating
authorities must in general satisfy themselves of the accuracy of the information upon which their
findings are based, regardless of whether verificat ion has taken place by means of an on-the-spot
investigation.511 It follows that on-the-spot investiga tions do not exhaust the ways in which an
objective assessment of the accuracy and reliability of submitted information may take place. In other
words, the AD Agreement recognizes that on-the-s pot investigations are not the only way of
understanding whether information is "verifiable".
7.359 Norway argues that the investigating authority took no steps to verify the information on
filleting costs provided by Grieg. According to No rway, the investigating authority could have, for
example, verified the data submitted by conduc ting a further on-the-spot investigation or by
requesting Grieg to provide further information, su ch as invoices confirming costs stated in the letter
from Triton.512 The EC rejects both of Norway's suggestions. As regards the possibility of a second
on-the-spot investigation, the EC argues that no requ est was ever made on the part of Grieg. In any
case, the EC contends that a second visit to Grie g's premises would have been contrary to the
investigating authority's normal practice and seri ously disrupted the course of the investigation. 513 To
have attempted to verify the submitted informa tion by written means would, according to the EC,
have been "a recipe for interminable delay".514
7.360 We recognize that for investigating authorities that choose to carry them out, on-the-spot
investigations will be of fundamental importance to the task of assessing the accuracy and reliability
of information which will later form the basis of th eir findings. We also acknowledge that it may be
unreasonable to expect that an investigating aut hority conduct a second on-the- spot investigation in
order to verify information submitted after an initial on-the-spot inv estigation has taken place. 515
However, in our view, the possibility of undertak ing on-the-spot investigations cannot alone be
determinative of the question whether submitte d information is "verifiable". Because the
AD Agreement envisages that there may be other ways to assess the accuracy and reliability of
information, the mere fact that a piece of inform ation may have been subm itted after an on-the-spot
investigation has taken place, does not mean that its accuracy and reliability cannot be objectively
assessed through any other process of verification. This does not mean that all information submitted
subsequent to an on-the-spot investigation will always be "verifiable". Ultimately, it may well be that

509 New Shorter Oxford English Dictionary, Clarendon Press, 1993.
510 Panel Report, US – Steel Plate, para. 7.71.
511 Panel Report, US – Steel Plate, footnote 67.
512 Norway, FWS, para. 426.
513 EC, FWS, para. 296.
514 EC, SWS, para. 101.
515 Panel Report, Korea – Certain Paper, para. 7.52.

information submitted after an on-the-spot investig ation has been conducted is not "verifiable".
However, in our view, this must be a conclusi on reached on the basis of a case-by-case assessment of
the particular facts at issue, including not only the nature of the information submitted but also the
steps, if any, taken by the investigating au thority to assess the accuracy and reliability of the
information.
7.361 We recall that the information submitted by Gr ieg in respect of its filleting costs took the
form of a letter from an unrelated processing co mpany called Triton, whic h Grieg had engaged to
conduct its filleting operations. The letter from Trit on reported the prices of the contracted filleting
services and disclosed the existence of a [[XX X]] between Grieg and Triton dated [[XXX]].
516 Grieg
submitted this information to the investigating au thority eight days after receiving the Information
Note on Cost of Production, and approximately tw o months after the investigating authority had
conducted its on-the-spot verification of Grieg's que stionnaire response. The Information Note was
the first written communication from the investigating au thority explaining that it considered Grieg to
have failed to report filleting costs. 517 In the disclosure of its provisional findings, the investigating
authority referred to the letter from Triton submitted by Grieg and noted that the issue "may be re-
examined during the definitive stage". Finally, in the definitive disclosure, the investigating authority
recalled once again the letter from Triton, but conc luded that the informa tion could not be accepted
because "at verification [Grieg] could not support the statements made at a later date".
7.362 Thus, the facts surrounding the investigating authority's calculation of Grieg's filleting costs
reveal that the investigating authority at no stage explored whether the accuracy and reliability of the
information contained in the letter from Triton c ould be objectively assessed by any means other than
an on-the-spot investigation. Although indicating at the time of its provisional findings that the issue
might be re-examined, the investigating authority ma de no further requests, of a specific or general
nature, for any additional information relating to Grieg's filleting costs. For instance, the investigating
authority did not ask Grieg to demonstrate how th e information in the letter from Triton could be
reconciled with its annual accounts, which we unde rstand were in the investigating authority's
possession. Neither did it inquire into whether the information could have been verified by means of
the [[XXX]] that had been in exis tence since [[XXX]]. The investigating authority made no attempt
whatsoever to assess whether the submitted informat ion was "verifiable". We do not understand the
EC to argue otherwise.
7.363 Given the absence of any attempt by the inv estigating authority to assess whether the
information submitted by Grieg was "verifiable", and in the light of the nature of the information
submitted, as well as the fact that after receiving the information, the investigating authority had
expressly indicated that the question of Grieg' s filleting costs continue d to be under active
consideration, we do not believe there were suffi cient grounds for the investigating authority to
conclude, on an objective basis, that the information at issue was not "verifiable". In reaching this
conclusion, we do not mean to say that the inv estigating authority would have found that the
information was "verifiable", had it pursued the ma tter. Additional information may not have given
the investigating authority any further comfort as to the accuracy and reliability of the information at
issue, and the investigating authority may have le gitimately concluded that the information was not
"verifiable". Thus, our finding is focused on the la ck of any attempt on the part of the investigating
authority to even explore whether the information was "verifiable". In our view, the investigating
authority's inaction meant that, in the particular circumstances of the investigation, there was an
insufficient factual basis to conclude that the information submitted by Grieg was not "verifiable".

516 Response to Information Note on Production Costs, Exhibit NOR-56.
517 The EC asserts that the inadequacies of Grieg's response were pointed out to Grieg orally during the
on-the-spot investigation. However, it has submitte d no evidence to substantiate that any such oral
communication actually took place.

- Whether Grieg's filleting cost information was "appropriately submitted so
that it can be used in the investigation without undue difficulties"
7.364 In assessing whether the filleting cost in formation provided by Grieg was not
"appropriately submitted so that it can be used in the investigation without undue difficulties", we find
it helpful to refer to the followi ng passage from the Panel's explanation of the meaning of this
standard in US – Steel Plate:
"In our view, "appropriately" in this contex t has the sense of "suitable for, proper,
fitting". That is, the information is suitabl e for the use of the investigating authority
in terms of its form, is submitted to the correct authorities, etc. More difficult is the
requirement that the information can be "used without undue difficulties". "Undue"
is defined as "going beyond what is warranted or natural, excessive,
disproportionate". Thus, "undue difficulties" are difficulties beyond what is
otherwise the norm in an anti-dumping investigation. This recognizes that difficulties
in using the information submitted in an anti-dumping investigation are not, in fact,
unusual. This conclusion is hardly surprising, given that enterprises that become
interested parties in an anti-dumping investigation and are asked to provide
information are not likely to maintain thei r internal books and records in exactly the
format and with precisely the items of information that are eventually requested in the
course of an anti-dumping investigation. Thus, it is frequently necessary for parties
submitting information to collect and organize raw data in a form that responds to the
information request of the investigating authorities. Similarly, it is frequently
necessary for the investigating authority to make adjustments of its own in order to be
able to take into account information that does not fully comply with its request. This
is part of the obligation on both sides to cooperate, recognized by the Appellate Body
in the US – Hot-Rolled Steel case." (Footnotes omitted).
7.365 Norway argues that Grieg's filleting cost in formation was "appropriately" submitted because
it was presented to the investigating authority in r esponse to a specific invitation on the part of the
investigating authority to comment on the finding s made in the Information Note on Cost of
Production.
518 Furthermore, Norway submits that the fille ting cost information could be used without
"undue difficulties" because it was in the same form, and just as useab le as, the per-unit filleting costs
that the investigating authority had obtained from another producer. 519 The EC advances the same
argument raised in respect of the question whether Gr ieg's filleting cost information was "verifiable"
to support its contention that the information subm itted by Grieg was not "app ropriately submitted so
that it can be used in the investigation without undue difficulties". As we understand it, the essence of
the EC's argument is that the information was not "appropriately submitted" and could not be used
"without undue difficulties" because it was submitted by Grieg after the on-the-spot investigation.520
7.366 We recall that Grieg provided the investigati ng authority with information on its filleting
costs in its comments on the investigating authority' s Information Note on Cost of Production. The
information was submitted as one of several comments made by Grieg to the investigating authority's
"preliminary assessment" of its cost of production. It was presented in the form of a short narrative
paragraph describing Grieg's reliance on Trit on to produce salmon fillets for the period of
investigation, identifying the alleged level of fille ting costs per kilogram, and referring to an attached
letter from Triton confirming these costs. We cannot see how this information could be found by the
investigating authority not to have been "appropriately" submitted on the basis of the facts that are
before us. In particular, we note that the inform ation was submitted in response to an invitation to

518 Norway, FWS, para. 443.
519 Norway, FWS, para. 444.
520 EC, FWS, para. 295.

"comment" that was made by the investigating authority after the on-the-spot investigation. In this
light, the fact that the information was provided after the on-the-spot investigation does not support a
conclusion that the information was not "appropriately" submitted.
7.367 Likewise, we cannot see how the mere fact that Grieg's filleting cost information was
submitted after the on-the-spot investigation mean s that it could not be used without "undue
difficulties". Although we believe that the extent of the effort needed to assess the accuracy and
reliability of information may play a role in unders tanding whether information supplied, particularly
at a late stage of an investigation, can be us ed by an investigating authority without "undue
difficulties", the facts that are before us do not su pport a conclusion that this was the case in the
present investigation. As we have already noted , the AD Agreement contemplates that investigating
authorities may verify information by different m eans, including but not limited to, on-the-spot
investigations. Thus, the burden that may have been associated with conducting a second on-the-spot
investigation to verify Grieg's filleting cost information does not necessarily mean that the
information could not have been used without "u ndue difficulties" because there may well have been
other options open to the investigating authority to sa tisfy itself of the accuracy and reliability of that
information. In this regard, we recall that the i nvestigating authority made no attempt to even explore
the feasibility and/or practicality of any other verification options.
7.368 Thus, in the light of the facts that are befo re us, we find that there was an insufficient
objective basis for the investigating authority to c onclude that the filleting cost information submitted
by Grieg was not "appropriately submitted so that it can be used in the investigation without undue
difficulties".
- Whether Grieg's filleting cost information was "supplied in a timely fashion"
7.369 The condition that all information "supplied in a timely fashion" should be taken into account
by an investigating authority is in essence a reflect ion of the rule in Article 6.8 that permits an
investigating authority to resort to facts availabl e if information is not provided "within a reasonable
period".
521 The Appellate Body has observed that in considering whether information is submitted
within a reasonable period of time for the purpose of Article 6.8 and Annex II, it may be relevant to
take into account factors such as: "(i) the nature and quantity of the information submitted; (ii) the
difficulties encountered by an investigated exporter in obtaining the information; (iii) the verifiability
of the information and the ease with which it can be used by the investiga ting authorities in making
their determination; (iv) whether other interested pa rties are likely to be prejudiced if the information
is used; (v) whether acceptance of the information would compromise the ability of the investigating
authorities to conduct the investig ation expeditiously; and (vi) th e number of days by which the
investigated exporter missed the applicable time-limit."522
7.370 Norway argues that there is no basis for finding that Grieg did not submit the information on
filleting costs in a "timely fashion". Norway notes that the information was submitted on
16 March 2005, in response to the investigating authority's Note on Costs of Production issued on
8 March 2005, before provisional findi ngs and more than one year ahead of the final determination.
In addition, Norway asserts that the investiga ting authority took account of comments and evidence
submitted by the interested parties after provision al disclosure, and itself requested additional
information that was used for the purpose of setting the minimum import prices, as late as
December 2005.
523 The EC has not argued that the informa tion provided was not timely in the sense
that Grieg missed a specific dead line set for comments on the inves tigating authority's Information

521 See Appellate Body Report, US – Hot-Rolled Steel , para. 83; Panel Report, US – Steel Plate ,
para. 7.76.
522 Appellate Body Report, US – Hot-Rolled Steel, para. 85.
523 Norway, FWS, paras. 434-437.

Note on Cost of Production. Rather, as we unders tand it, the EC contends that the information was
not supplied in a timely fashion because it was supplied after the on-the-spot investigation.524
7.371 Grieg submitted the information on 16 March 2005 , eight days after it had been invited to
"comment" on the investigating au thority's "preliminary assessment" of its costs of production.
Nothing in the investigating authority's Informa tion Note indicates that information submitted in
response to its findings would not be taken into account, unless previously verified during the on-the-
spot investigation. Indeed, the Information Note expressly states that the investigating authority
would "continue[] to investigate" , suggesting that it was open to r eceiving and considering additional
information. The investigating authority's provisiona l findings, issued shortly after the submission of
Grieg's filleting costs, likewise stated, specifically in respect of the filletin g costs issue, that its
findings "may be re-examined during the definitive stage", thus again suggesting that the investigating
authority continued to actively consider the matter. Finally, we note that the investigating authority
gathered additional information well after 16 March 2005 relating to various aspects of the
investigation, including the appropriate levels of the minimum import prices. 525 In this light, and
recalling that we have already found that there was not a sufficient factual b asis for the investigating
authority to find that Grieg's filleting cost information was not "verifiable" or "appropriately
submitted so that it can be used in the investiga tion without undue difficulties", we find that the
investigating authority could not have objectively concluded that Grieg's filleting cost information had
not been supplied in a timely fashion.
7.372 Thus, for all of the foregoing reasons, we find that the investigating authority did not act
consistently with Article 6.8 an d paragraph 3 of Annex II when it disregarded the filleting cost
information submitted by Grieg in its comments on th e investigating authority's Information Note on
Costs of Production, and instead determined Grieg' s filleting costs on the basis of information from
another source.
Whether the investigating authority acted incons istently with paragraph 6 of Annex II when it
disregarded the information subm itted by Grieg and used informa tion from a third party to
determine Grieg's filleting costs

7.373 In the light of our finding that the investigati ng authority acted inconsistently with Article 6.8
and paragraph 3 of Annex II when it calculated Grieg's filleting costs on the basis of "facts available",
we consider that it is not necessary, for the purpose of resolving this dispute, to also address Norway's
second claim under paragraph 6 of Anne x II in respect of the investigating authority's calculation of
Grieg's filleting costs. Paragraph 6 of Annex II provides:
"If evidence or information is not accepted, the supplying party should be informed
forthwith of the reasons therefore, and s hould have an opportunity to provide further
explanations within a reasonable period, due account being taken of the time-limits of

524 EC, FWS, para. 295.
525 Letter from the Commission on developments following the Definitive Disclosure,
16 November 2005, Exhibit NOR-18; Information Note from the Commission on the Definitive MIP,
13 December 2005, Exhibit NOR-19. Furthermore, we note that the i nvestigating authority accepted three
adjustments to cost of production for diseases that were claimed by Grieg, based on information submitted at the
same time that the information on filleting costs was provided to the investigating authority. Provisional
Disclosure to Grieg, Exhibit NOR-58; Definitive Disclosure to Grieg, 28 October 2005, Exhibit NOR-16. The
EC stated in its First Written Submission (para. 268) that these adjustments were "accepted as they were
considered by the investigators to be justified and were verified on the spot". However, the EC has provided no
evidence to substantiate the assertion that these claims we re previously verified. In addition, the Disclosures to
Grieg do not suggest that the disease claims were accept ed because previously verifi ed on-the-spot on Grieg's
premises. Rather, the Provisional Disclosure reveals that the claims were accepted "[e]xceptionally, and only on
a provisional basis". The Definitive Disclosure merely confirmed these findings.

the investigation. If the explanations ar e considered by the authorities as not being
satisfactory, the reasons for the rejection of such evidence or information should be
given in any published determinations."
7.374 As we read it, paragraph 6 of Annex II establis hes what are essentially procedural obligations
on an investigating authority that wishes to rely upo n "facts available". Thus, in order to use "facts
available" in a manner consistent with Article 6.8, paragraph 6 requires that an investigating authority
inform the relevant interested party of the re asons why any requested evidence or information
submitted has been rejected; give the interested pa rty a reasonable period of time to provide further
explanations; and set out the reasons for any re jection of such information in its published
determinations. As we have foun d that the substantive basis of th e investigating authority's reliance
on "facts available" was flawed, we believe that it would do little to resolve this dispute or enhance
the ability of the DSB to make sufficiently precise r ecommendations and rulings in this dispute, if we
were to also make findings in respect of this part of Norway's claim. Therefore, on the grounds of
judicial economy, we decline to make any findings in relation to Norway's claim that the investigating
authority's reliance on "facts available" for the purpose of calculating Grieg's filleting costs was
inconsistent with paragraph 6 of Annex II.
(ii) Whether the investigating authority acted incons istently with the EC 's obligations under
Article 6.8 and paragraphs 3 and 6 of Annex II when it calculated Grieg's finance costs

7.375 Norway argues that the investigating authorit y acted inconsistently with Article 6.8 and
paragraphs 3 and 6 of Annex II when it allegedly used "facts available" to calculate Grieg's finance
costs, instead of relying on actual information submitted by Grieg. 526 In particular, Norway contends
that the investigating authority rejected an interest rate figure that was derived from arm's length loan
transactions and appropriately supplied, explained and documen ted by Grieg, without any
explanation.527 The EC argues that the investigating author ity did not resort to "facts available" when
calculating Grieg's finance costs because it did not reject the information supplied by Grieg.
According to the EC, the investiga ting authority did not fail to accept Grieg's finance costs, but rather
merely decided to apply an appropriate benchmark to calculate the amount of Grieg's finance costs.
Thus, the EC argues that Norway confuses a point of law "(What is the appropriate criterion by which
to measure the rate of interest?)" with one of fact "(What is the level of that rate of interest?)".528
7.376 Again, before addressing Norway's claim, we briefly set out some of the relevant facts
relating to the investigating authority's calculation of Grieg's finance costs.
 Facts

7.377 Grieg reported finance costs of an amount of NOK [[XXX]] in its initial reply to the EC's
"exporters/producers" questionnaire.
529 In the Information Note on Cost of Production, the
investigating authority affirmed that "[i]t was ev ident from an analysis of the Grieg Seafood Group
accounts that finance costs ... had been understated." The investigating authority therefore deducted
the reported cost and replaced it with a recalculated figure based on an interest rate of [[XXX]] per
cent, taken from the 2003 accounts of the Grieg Se afood Group, which was applied to [[XXX]] (i.e.
the salmon element) of interest bearing loans from Grieg Seafood Rogaland accounts of 2003. The
new finance cost was assessed as NOK [[XXX]]. Th e investigating authority stated that its

526 Norway, FWS, paras. 429-430, 438 and 446-447.
527 Norway, FWS, paras. 406-413. Norway, Comme nts on the European Communities' Answers to
Panel Questions 108 and 109.
528 EC, FWS, para. 307.
529 Exhibit NOR-59.

adjustment was intended to "bring finance costs of salmon into line with the cost of finance from the
Grieg Seafood Group".530
7.378 In its response to the Information Note, Grieg contested the investigating authority's finance
cost adjustment and provided a breakdown of its to tal finance costs for the period of investigation,
which it asserted amounted to NOK [[XXX]], with only NOK [[XXX]] relevant to salmon
production.531 In respect of the interest paid on its outstanding debt, Grieg submitted a letter from its
bank [[XXX]].532 Grieg asserted that this information demons trated that the averag e interest rate for
the relevant period was [[XXX]]. In this regard, Gr ieg noted that interest rates in 2004 were [[XXX]]
lower than in 2003, and requested that the investig ating authority therefore base the finance cost
figure on the 2004 accounts and not the 2003 accounts.533
7.379 In the Disclosure of its Provisional Determinati on, the investigating authority confirmed its
"preliminary assessment" of Grieg's finance costs an d noted that the arguments made in response to
the Information Note "will be re-examined at the definitive stage once all required information has
been collected. If extra information is requi red from your company we will inform you". 534 Grieg
responded to the investigating authority's Provi sional Determination, repeating and further
substantiating the comments already made in respect of finance cost with further arguments and
documentation, including auditor statements.535
7.380 The investigating authority's Definitive Determ ination confirmed the findings made at the
provisional stage in respect of Grieg's finance costs being "understated". However, the investigating
authority changed the methodology used to calculate them. Instead of using a figure derived from
2003 accounts, the investigating authority based its calculation of Grieg's finance costs on the average
amount of Grieg's "interest bearing loans for the pe riod 2001 to 2003" and the "average interest rate
used from the Norwegian Central Bank" during the three-year period from 2001 to 2003, which
amounted to 6.58 per cent.
536 This new methodology resulted in a final finance cost figure of
NOK [[XXX]].
 The assertion that the investigating author ity did not rely on "facts available"

7.381 Initially, the EC argued that the issue in resp ect of Grieg's finance costs was not one of
"quality of evidence", but rather the "subject of th e evidence: the appropriate benchmark for valuing
interest paid on inter-company loans". The EC su bmitted that the investigating authority was of the
view that "the relationship between Grieg Seaf ood Rogaland and other companies to which it was
related deprived the terms of the loan arrangement of commercial validity". 537 Thus, the EC
explained that the interest rate reported in Gr ieg's audited accounts "clearly reflected a non-
commercial relationship".538

530 Information Note on Cost of Production, Exhibit NOR-55.
531 Response to Information Note on Production Costs, Exhibit NOR-56. Grieg requested that this
amount be reduced by the [[XXX]], resulting in a final adjusted finance figure of [[XXX]] NOK. See also,
Grieg Seafood questionnaire reply, Exhibit NOR-59.
532 Response to Information Note on Production Costs, Exhibit NOR-56.
533 Response to Information Note on Production Costs, Exhibit NOR-56.
534 Provisional Disclosure to Grieg, 22 April 2005, Exhibit NOR-58.
535 Response to EC Provisional Disclosure to Grieg, Exhibit NOR-57.
536 Definitive Disclosure to Grieg, 28 October 2005, Exhibit NOR-16.
537 EC, FWS, para. 307.
538 EC, SWS, para. 104.

7.382 In responding to a Panel question prompted by Norway's assertion that all of Grieg's loans
were with unrelated companies,
539 the EC stated that the concern of the investigating authority was to
establish "whether the interest rate on the loan was below commercial levels". According to the EC,
"[s]ince the [investigating authorit y] did not doubt the genuineness of the loan, the issue of whether
the lender was part of the parent company, or was independent of it, was not [a] matter that affected
the calculation of Grieg's costs, and it was not pursued by the investigators." 540 The existence of any
relationship between Grieg and the lender banks was not a factor considered by the investigating
authority. Indeed, we see nothing in the investigating authority's disclosures to Grieg to suggest that it
was at any stage concerned with the level of Grie g's reported finance costs because of any supposed
"relationship between Grieg Seafood Rogaland an d other companies to which it was related", 541 the
existence of which in any event th e EC no longer appears to assert. 542 Thus, in the words of the EC,
the basis for the investigating authority's decision not to use Grieg's reported interest rate costs was
that it considered them to be "cheap" relative to what it believed to be "commercial" rates of the
Norwegian Central Bank.543
7.383 We recall that we have found that whenever an interested party submits specific information
that an investigating authority has requested fo r the purpose of making a determination, and the
conditions for resorting to "facts available" have not been established, the investigating authority will
not be entitled to disregard the submitted inform ation and use information from another source to
make the determination. 544 In the present investigation, Grieg provided the investigating authority
with information that was specifically request ed by the investigating authority in the
"exporters/producers" questionnaire for the purpose of determining the leve l of Grieg's finance
costs.545 The requested information was therefore "n ecessary information" within the meaning of
Article 6.8. The investigating authority did not use the information specifically submitted by Grieg,
but instead relied upon information from the Norweg ian Central Bank and Grieg's "interest bearing
loans for the period 2001 to 2003". In these circum stances, the investigating authority's use of
information that was not specifically submitted by Grieg in response to it s request for cost of
production information coul d only be justified if the conditions for using "facts available" under
Article 6.8 and Annex II were satisfi ed. Thus, we find that the EC's assertion that the investigating
authority did not rely on "facts available" when it disregarded the information submitted by Grieg,
and instead relied upon Norwegian Central Bank data and an average of Grieg's "interest bearing
loans for the period 2001 to 2003", to determine Gr ieg's finance costs, is grounded on a misconceived
understanding of the scope and operation of Article 6.8 and Annex II. We therefore dismiss the
assertion that the investigating aut hority did not rely on "facts available" when it calculated Grieg's
finance costs.
Whether the investigating authority acted consis tently with paragraph 3 of Annex II when it
disregarded the information s ubmitted by Grieg and used info rmation from the Norwegian
Central Bank to determine Grieg's finance costs

7.384 Norway contends that the finance cost info rmation provided by Grieg was verifiable,
appropriately submitted so that it could be used without causing undue difficulties, and supplied in a

539 Norway alleges that the only inter-company loan that existed was from Grieg to its parent company,
which "generated income for Grieg". Norway, First Oral Statement, para. 100; Norway, Second Oral Statement,
para. 67.
540 EC, Answer to Panel Question 108.
541 EC, FWS, para. 307.
542 Thus, we are not here confronted with the situ ation where an investiga ting authority disregards
financial costs on the grounds that t hose costs were unreliable because they were established on the basis of
transactions between related parties or were otherwise not at arms' length.
543 EC, Answer to Panel Question 25.
544 See, para. 7.347.
545 Exhibit NOR-59.

timely manner, within the meaning of paragraph 3 of Annex II. In particular, Norway argues that
Grieg submitted detailed evidence of its finance cost s, including certified and audited data as well as
information confirmed by a letter from its bank. According to Norway, this information was
"perfectly capable of being verified".546 Norway asserts that the finance cost data consisted of a figure
for finance costs for production of the product concerned during the period of investigation,
information on the interest rates borne by Grieg during that period, and supporting evidence. In
Norway's view, this information could not generate "difficulties beyond what is otherwise the norm in
an anti-dumping investigation".547 Finally, Norway argues that the information was supplied by Grieg
in a timely manner because it was initially containe d in Grieg's questionnaire reply, and because all
other supplementary information to confirm the reported figure was submitted in response to the
investigating authority's Information Note on Cost of Production and the Provisional Disclosure
document.548
7.385 We recall that in order to fully comply with Ar ticle 6.8, an investigating authority's use of
"facts available" must be consistent with the disci plines set out in Annex II. In the light of our
previous observations on the conditions set out in paragraph 3 of Annex II, 549 and the arguments
presented by Norway, we can find no evidence in the f acts that are before us to indicate that the
investigating authority considered that the fina nce cost information provided by Grieg was not
verifiable, appropriately submitted so that it coul d be used without causing undue difficulties, and
supplied in a timely manner, within the meaning of paragraph 3 of Annex II. The EC has not
suggested otherwise. Indeed, in this regard, we note that the EC has presented no response at all to
Norway's specific allegations in respect of the cons istency of the investigating authority's resort to
"facts available" with paragraph 3 of Annex II.
7.386 We therefore find that the investigating aut hority's reliance on "facts available" for the
purpose of determining Grieg's finance costs was in consistent with paragr aph 3 of Annex II, and
therefore also inconsistent with Article 6.8.
Whether the investigating authority acted consis tently with paragraph 6 of Annex II when it
disregarded the information s ubmitted by Grieg and used info rmation from the Norwegian
Central Bank to determine Grieg's finance costs

7.387 In the light of our finding that the investigating authority's reliance on "facts available" for the
purpose of determining Grieg's finance costs was inconsistent with paragraph 3 of Annex II and
Article 6.8, we consider that it is not necessary to also address Norway's claim under paragraph 6 of
Annex II, in order to resolve the matter that is be fore us. We do not believe that making any findings
under this part of Norway's claim would add anything to the ability of the DS B to make sufficiently
precise recommendations and rulings in this dispute. Therefore, on the grounds of judicial economy,
we decline to rule upon Norway's claim that the investigating auth ority's reliance on "facts available"
for the purpose of calculating Grieg's finance costs was inconsistent with paragraph 6 of Annex II.

546 Norway, FWS, paras. 429-430.
547 Norway, FWS, paras. 446-447, citing Panel Report, US – Steel Plate, para. 7.72.
548 Norway, FWS, para. 438.
549 See, paras. 7.357-7.372.

5. Alleged Inconsistency of the EC's Determ ination of Margins of Dumping and Anti-
Dumping Duties for Non-Investigated Companies with Articles 9.4(i) and 6.8, and
Paragraph 1 of Annex II, of the AD Agreement
(a) Arguments of the parties
(i) Norway
 Claims under Article 9.4(i) of the AD Agreement

7.388 Norway's claims under Article 9.4(i) of the AD Agreement relate to the margins of dumping
that the investigating authority attributed to two categories of interested parties: all parties that
responded to the investigating authority's "sampli ng questionnaire", but were not selected for its
limited investigation ( non-investigated cooperating companies ); and all other parties that did not
make themselves known to the investigating authorit y by responding to its "sampling questionnaire"
(non-cooperating companies).
- Non-investigated cooperating companies
7.389 Norway claims that the investigating authority act ed inconsistently with Articles 9.4(i) of the
AD Agreement because it assigned a margin of dumping to non-investigated cooperating companies
that resulted in the application of anti-dumping duties (an "all others rate"
550) that exceeded the
"ceiling" permitted by Article 9.4(i). Norway argu es that Article 9.4(i) identifies the maximum limit
or ceiling, which investigating authorities cannot exceed "when setting the all others rate for
companies which were not individually examined". 551 According to Norway, this ceiling is
established on the basis of the margins of dumping determined for investigated producers as follows:
"first, the investigating authority must exclude margins established for sampled producers using facts
available, zero margins and de minimis margins; and, second, the i nvestigating authority must
calculate the weighted average of the remaining margins of dumping". 552 Norway contends that the
investigating authority did not respect these disciplines in its determination of the margin of dumping
of the non-investigated cooperating companies, which it alleges was used for the purpose of
establishing the amount of applicable anti-dumping duti es. To this extent, Norway argues that the
investigating authority "exceeded the ceiling in Artic le 9.4" when establishing the "all others rate" for
the non-investigated cooperating companies.
7.390 Norway argues that the margin of dumping assi gned by the investiga ting authority to non-
investigated cooperating companies resulted in a gr eater than permitted "all others rate" for two
reasons. First, Norway asserts it was greater than the weighted average of the margins of dumping
that were finally determined for the individu ally investigated producers and published in the
Definitive Regulation. In this regard, Norway notes that in its Definitive Disclosure, the investigating
authority determined that the weighted average margin of dumping of the individually examined
companies was 14.8 per cent. However, Norway contends that after Definitive Disclosure, the
investigating authority made downward revisions to the individual margins of dumping of three of the
examined producers. Thus, according to Norway, th ese revisions logically implied a decrease in the
weighted average of the margins of dumping of the investigated companies. However, the
investigating authority did not alter its findings, leaving the weighted average of the margins of
dumping of the individually investigated companies in the Definitive Regulation at 14.8 per cent in its
final determination.

550 Norway, FWS, para. 466; Norway, SWS, paras. 161 and 165.
551 Norway, FWS, para. 466.
552 Norway, FWS, para. 467.

7.391 The second reason why Norway considers that the margin of dumping assigned by the
investigating authority to non-investigated coope rating companies was inco rrectly calculated, and
thereby resulted in the application of anti-dumping duties exceeding the "ceiling" in Article 9.4, is
because it was allegedly determined without excludi ng the margin of dumping calculated for one of
the investigated producers (Grieg Seafood) on the basis of "facts available".
7.392 Finally, Norway argues that the margin of dumping assigned to non-investigated cooperating
companies was used for the purpose of establishi ng the level of applicable anti-dumping duties
because it was central to the inves tigating authority's assessment of whether such duties could be
based on the weighted average non-injury margin. In particular, Norway notes that the "fixed duty"
applied by the investigating authority to non-i nvestigated cooperating companies was based on the
weighted average injury margin (determined to be 14.6 per cent) because it was found to be lower
than the weighted average dumping margin for all individually investigated producers (determined to
be 14.8 per cent). However, according to Norway, the proper consideration of the revised margins of
dumping for three investigated producers, and the exclusion of Grieg's margin of dumping, would
have reduced to 13.1 per cent the weighted average of the margins of dumping of the individually
investigated producers. 553 Therefore, the investigating aut hority's incorrect assessment of the
weighted average margin of dumping of the indi vidually investigated co mpanies resulted in the
application of a "fixed duty" that was inconsistent with the requirements of Article 9.4(i).
- Non-cooperating companies
7.393 Norway claims that the investigating authority acted inconsistently with Article 9.4(i) because
it attributed to non-cooperating companies a margin of dumping that ex ceeded the weighted average
of the margins of dumping calculated for the indivi dually investigated companies, excluding zero and
de minimis margins and margins calculated on the basis of "facts available". In particular, Norway
notes that the investigating authority attributed to non-cooperating companies a margin of dumping,
which was the highest dumping margin established fo r the investigated producers – 20.9 per cent.
According to Norway, this was significantly higher than the weighted average of the margins of
dumping of the individually investigated companies, calculated in accordance with Article 9.4(i).
 Claim under Article 6.8 and paragraph 1 of Annex II of the AD Agreement

7.394 Norway claims that the EC acted inconsistently with Article 6.8 and pa ragraph 1 of Annex II
of the AD Agreement because it alleges that it improperly relied upon "facts available" to assign
margins of dumping to non-cooperating Norwegian companies.
554 In particular, Norway asserts that
the EC relied on "facts available" to deduce that non-cooperating companies dumped at a level that
was at least that calculated for the investigated company that was found to be dumping the most,
Grieg. Norway argues that the EC was not entitle d to apply "facts available" to the non-cooperating
companies, because it contends that Article 6.8 and paragraph 1 of Annex II of the AD Agreement, as
interpreted by the Appellate Body in Mexico – Anti-Dumping Measures on Rice case, require
investigating authorities to refrain from applying "f acts available" to non-investigated parties that
were not individually notif ied of the required information that was not received by the investigating
authority.555 The focus of Norway's claim is sixty- seven non-investigated companies, which
according to Norway never received the notification required under paragraph 1 of Annex II.

553 Norway, FWS, para. 476.
554 Norway, FWS, paras. 483-491.
555 Norway, FWS, para. 489, citing Appellate Body Report, Mexico – Anti-Dumping Measures on Rice,
para. 259.

(ii) European Communities
 Claims under Article 9.4(i) of the AD Agreement

7.395 The EC argues that Norway's claims in respect of the margins of dumping attributed to both
non-investigated cooperating companies and non-cooperating companies are ill-founded because, in
its view, Article 9.4 of the AD Agreement is not about the calculation of margins of dumping for
companies left out of a limited examination, but rather the imposition of anti-dumping duties.
556
7.396 In any case, the EC argues that the investiga ting authority's calculation of the weighted
average of the margins of dumping of the investigated companies did not result in the application of
anti-dumping duties that exceeded the "ceiling" in Ar ticle 9.4(i). First, according to the EC, the
margin of dumping calculated for Grieg was not based on "facts available". As such, the investigating
authority was perfectly entitled to include it in the calculation of the weighted average of the margins
of dumping of the individually investigated compan ies. Secondly, the EC asserts that the minimum
import prices ("MIPs") applied to the non-inves tigated companies were based on the normal values
corresponding to non-injury level prices, not the we ighted average of the investigated companies'
normal values. Moreover, although acknowledging that the investigating authority failed to adjust the
final margin of dumping attributed to non-inves tigated cooperating companies to account for the
downward adjustments made to three of the individually investigated companies' margins of dumping,
the EC contends that even with these adjustments, the MIPs imposed would be lower than the MIPs
based on an adjusted weighted aver age of the investigated companies' normal values. Finally, the EC
asserts that the levels of "fixed duty" applied to all non-investigated companies were not calculated on
the basis of the weighted average of the dumping ma rgins of the individually investigated companies,
but rather the weighted average in jury margin, which was lower than the former. In any case, the EC
contends that the "fixed duty" is not an anti- dumping duty that falls within the scope of the
AD Agreement.
 Claim under Article 6.8 and paragraph 1 of Annex II of the AD Agreement

7.397 The EC does not dispute Norway's assertion that the investigating authority determined a
margin of dumping for non-cooperating companies on the basis of "facts ava ilable". However, it
questions whether Article 6.8 may be breached in a situation such as the present where although "facts
available" were used to calcula te the margin of dumping for non-cooperating companies, the final
measures imposed were the same as those imposed on cooperating companies. To this extent, the EC
argues that Norway's claim is merely "academ ic" because even if Norway could establish an
infringement of Article 6.8 in respect of non-cooperating companies, such a finding would have no
consequence as regards the legality of the anti-dumping measure that the EC has imposed.
557
7.398 In any event, the EC contends that the inves tigating authority complied with Article 6.8 and
paragraph 1 of Annex II because, as opposed to the situation in the Mexico – Anti-Dumping Measures
on Rice case, the investigating authority did not inves tigate only those companies that were either
identified in the petitioner's complaint or that th emselves spontaneously contacted the investigating
authority. The EC argues that the investigating authority contacted all of the companies in the
Norwegian industry that it knew of, with the assistance of Norwegian Seafood Federation. In
contacting these companies, the EC argues that the i nvestigating authority provided them with a copy
of the Notice of Initiation, which contained an explic it warning of the possible use of "facts available"
in the event of non-cooperation. Thus, in essence, the EC asserts that the f acts of the present case

556 EC, FWS, paras. 313, 315 and 317.
557 EC, FWS, para. 322.

were qualitatively different from those in Mexico – Anti-Dumping Measures on Rice , and for this
reason, the investigating authority did not infringe Article 6.8 and paragraph 1 of Annex II.558
(b) Arguments of the third parties
(i) Japan
7.399 Japan invites the Panel to consider whether "f acts available" may be applied to companies
which were not identified in the course of the investig ation. In particular, Japan's concern relates to
the application of "facts available" to uniden tified companies without respect for the necessary
notification requirements provided for by the AD Agre ement, for example in paragraphs 1 and 6 of
Annex II of the AD Agreement.
7.400 Japan recalls that the Appellate Body in Mexico – Anti-Dumping Measures on Rice found that
putting exporters or producers on notice that "facts available" will be used is a precondition for the
use of "facts available". According to Japan, this precondition can never be met in the case of
unidentified exporters or producers, as an inv estigating authority cannot notify the exporter or
producer it has not identified. The n eed to notify exporters as set forth inter alia in paragraphs 1 and
6 of Annex II to the AD Agreement, applies when ever "facts available" are used, whether based on
information from the applicant or otherwise. However, in this case, the EC assigned to the
unidentified exporters or producers a margin of dum ping equal to the highest margin of an exporter
individually calculated, a margin that was clearly based on the "facts available", and importantly, on a
particularly negative set of "facts available".
(ii) United States
7.401 The United States asserts that the EC is not excused from complying with Article 6.8 and
Annex II merely because it used the MIP as the basis for imposing antidumping duties on these
companies. In the view of the United States, the ob ligation contained in Article 6.8 is not by its terms
limited to determinations that are "determinativ e of the duty imposed", as the EC claims; rather,
Article 6.8 provides that it applies to the use of "facts available" in "preliminary and final
determinations, affirmative or negative".
(c) Evaluation by the Panel
(i) Claims under Article 9.4(i) of the AD Agreement
7.402 Before turning to evaluate Norway's claims, we believe it is useful to set out some of the
pertinent facts surrounding the investigating authority's calculation of the margins of dumping and
anti-dumping duties attributed to the non-investigated companies.
 Facts

7.403 In its Definitive Regulation, the investigating authority decided to introduce a "double system
of measures", composed of minimum import prices ("MIPs") and a "fixed duty", in response to
arguments made by certain interested parties about the efficacy of only MIPs and in the light of
"indications that some circumvention of the MIP [imposed following provisional findings]" had

558 EC, FWS, paras. 324-326.

already taken place and "the potential which exists for compensatory arrangements" in the salmon
market.
559
7.404 Irrespective of its form, the investigating au thority expressed the intention to set the
"definitive duty" "at the level of the dumping or injury margins, whichever is the lower", in
accordance with Article 9(4) of the EC's Basic Anti-Dumping Regulation.560
7.405 The MIPs were calculated for six different pr esentations of salmon: "[w]hole fish, fresh,
chilled or frozen"; "[g]utted, head-on, fresh, chilled or frozen"; "[o]ther (including gutted, head-off),
fresh, chilled or frozen"; "[w]hole fish fillets and fillet cut in pieces, weighing more than 300 g per
fillet, fresh, chilled or frozen, skin on"; "[w]hole fi sh fillets and fillet cut in pieces, weighing more
than 300 g per fillet, fresh, chilled or frozen, skin off"; and "[o]ther whol e fish fillets and fillet cut in
pieces, weighing more than 300 g or less per fillet, fresh, chilled or frozen". 561 For each presentation,
the investigating authority calculated a "non-injurious MIP" – a price that would not result in injury to
the domestic industry – and compared this to a corresponding "company-specific non-dumped MIP",
calculated on the basis of "normal value, adjust ed to the net free-at-Community-border price".
562 The
investigating authority found the "non-injurious MIP" to be lower than the "non-dumped MIP" for
each of the investigated producers in r espect of each of the salmon presentations. 563 Thus, the MIPs
were established at the level of the "non-injurious MIP" for each of the salmon presentations and
applied equally to all producers from Norway, whether or not investigated.564
7.406 The fixed duty was calculated, in accordance with "Article 9(4) of the EC's Basic Anti-
Dumping Regulation ... on the basis of the weighted average injury margin as this was found to be
lower than the weighted average dumping margin ". The weighted averag e injury margin was
determined to be 14.6 per cent. 565 This was converted into a fixed EUR amount per kilogram for the
six different presentations of salm on, and applied as the fixed duty. 566 The "weighted average
dumping margin" was calculated on the basis of the "weighted average of the individual dumping
margins" of the investigated parties and attributed to "[c]ompanies which co-operated, but which were
not selected in the sample, and which are not re lated to any of the companies included in the
sample".
567 The Definitive Regulation reveals that this margin was 14.8 per cent.
7.407 The "fixed duties" applied equally to all produ cers from Norway, whether or not investigated.
However, they would only become payable when certain conditions were met. The intended
operation of the fixed duties is explained in the Definitive Regulation in the following terms:
"To ensure the effective respect of the MI P, importers should be made aware that
when it is found following a post-importation verification that (i) the net free-at-
Community-frontier price actually paid by the first independent customer in the
Community (post-importation price) is below the net free-at-Community-frontier
price, before duty, as resulted from the customs declaration; and (ii) the post-
importation price is lower than the MIP, a fixed duty shall apply retrospectively for
the relevant transactions, unless the appli cation of the fixed duty plus the post-
importation price lead to an amount (price actually paid plus fixed duty) which

559 Definitive Regulation, Recital 136. The reasons for "double system of measures" is described in
greater detail below, paras. 7.691 - 7.700 and 7.403 - 7.408
560 Definitive Regulation, Recitals 129 (re MIPs) and 136 (re fixed duty).
561 Definitive Regulation, Recital 132, Article 1(5).
562 Definitive Regulation, Recital 129.
563 Definitive Regulation, Recital 129.
564 Definitive Regulation, Recital 133.
565 Definitive Regulation, Recital 127.
566 Definitive Regulation, Article 1(5).
567 Provisional Regulation, Recital 38, confirmed in the Definitive Regulation, Recital 30.

remains below the MIP. In such a case, an amount of duty equivalent to the difference
between the MIP and the post-importation price shall apply. Customs authorities
should inform the Commission immediately whenever indications of a misdeclaration
are found."
7.408 Finally, we note that the investigating author ity also determined a "residual margin", which it
attributed to "exporters in Norway which did not cooperate or did not make themselves known", 568
that is, non-cooperating companies. This margin was set at the level of the highest individual
dumping margin established for an investigated coope rating company, which turned out to be Grieg
Seafood AS ("Grieg") with a margin of dumping of 20.9 per cent. 569 The residual margin was not
used by the investigating authority for the purpose of establishing either the MIPs or the fixed duties.
 Non-investigated cooperating companies

7.409 Norway argues that the margin of dumping assi gned by the investiga ting authority to non-
investigated cooperating companies resulted in the application of anti-dumping duties that were
inconsistent with Article 9.4(i) because it did not represent the weighted average of the margins of
dumping for the individually examined producers, excluding margins of dumping derived from "facts
available", and was used for the purpose of estab lishing the anti-dumping duties applicable to non-
investigated non-cooperating companies.
7.410 In the first instance, the EC argues that Norway's claim is misplaced because, in its view,
Article 9.4(i) addresses the imposition of anti-dumping duties, and not the determination of margins
of dumping for non-investigated parties. In other wo rds, the EC argues that Norway's claim is limited
to the allegation that the investigating authority acted inconsistently with Article 9.4(i) because it
determined margins of dumping for non-investigated compan ies that were greater than the weighted
average of the margins of dumping for all inves tigated parties, excluding margins based on "facts
available". We do not understand Norway's claim to have this limited meaning. Overall, Norway's
arguments reveal a concern with the "all others rate" calculated by the investigating authority for non-
investigated cooperating producers.570 In particular, Norway identifies the "fixed duty" as the focus of
this concern.571 Thus, we do not agree with the EC when it suggests that Norway's claim is not about
whether the investigating authority imposed an ti-dumping duties on non-investigated parties in
accordance with Article 9.4(i). It is true that Norway calls into question the compatibility of the
margin of dumping that was attributed to the non-inv estigated parties with Article 9.4(i). However,
when considered in the context of the entirety of Norway's arguments, in particular, the assertion that
the "all others rate" was determined through an assess ment which took that margin into account, it is
clear to us that Norway's submissions in respect of the calculation of the margin of dumping attributed
to non-investigated cooperating companies serve to s upport its allegation that the "all others rate" did
not satisfy the requirements of Article 9.4(i). We will therefore proceed to examine Norway's claim
on the basis of this understanding. However, before doing so, we believe that a threshold
question that we must resolve is whether the "fixed duty" that lies at the centr e of Norway's claim is
an anti-dumping duty that falls within the scope of the AD Agreement.
- Whether the "fixed duty" falls within the scope of the AD Agreement
7.411 The EC submits that the "fixed duty" adopted by the investigating authority is not a "specific
action against dumping" within the meaning of Ar ticle 18.1 of the AD Agreement, and therefore
cannot be subject to the disciplines of Article 9.4(i) of the AD Agreement. According to the EC, the

568 Provisional Regulation, Recital 40, confirmed in the Definitive Regulation, Recital 31.
569 Provisional Regulation, Recital 40, confirmed in the Definitive Regulation, Recital 31.
570 Norway, FWS, para. 466; and Norway, SWS, paras. 161, 163 and 165.

"fixed duty" is a measure taken to address circ umvention of the anti-dumping measures imposed on
salmon imports, in particular, "designed to deter evasion of lawfully imposed anti-dumping duties ...
[and] ... intended to enforce the basic level of duty, ... one which exporters and importers can avoid by
respecting the rules."
572 The EC argues that the terminology or characterization applied to the "fixed
duty" under its domestic laws should not be determinative of its characterisation under WTO law.573
7.412 Norway, on the other hand, argues that the "fixed duty" is an anti-dumping duty falling within
the scope of the AD Agreement. In this regard, No rway points to the fact that Article 1(5) of the
Definitive Regulation explicitly d escribes the "fixed duty" as a "fix ed anti-dumping duty"; that it was
calculated on the basis of a comparison between th e weighted average margin of injury and the
weighted average margin of dumping; and that it was adopted under a domestic legal basis that is
specific to anti-dumping measures.574
7.413 Article 18.1 reads:
"No specific action against dumping of expor ts from another Member can be taken
except in accordance with the provisions of GATT 1994, as interpreted by this
Agreement.24
GATT 1994.579
7.415 The description provided in the Definitive Regulation of the reason for the adoption of the
"fixed duty" and its intended application suggests that it was employed to counter a perceived risk that
the MIPs imposed on salmon imports could be circ umvented through misdeclarations of the customs
value.580 To this end, the Definitive Regulation estab lishes that the "fixed duty" will be collected
whenever post-importation verification shows that im ports have been sold to the first independent
customer at a net free-at-Community-border price that is below the net free-at-Community-border
price, before duty, declared to customs and this is below the MIP, unless application of the "fixed
duty" would not bring the import price to the level (o r above the level) of the MIP. In other words,

572 EC, FWS, paras. 501-502.
573 EC, Answer to Panel Question 41.
574 Norway, First Oral Statement, paras. 158-161; Norway, SWS, para. 223.
575 Appellate Body Report, United States – Continued Dumping and Subsidy Offset Act of 2000
("US – Offset Act (Byrd Amendment )"), WT/DS217/AB/R, WT/DS234/AB/R, adopted 27 January 2003,
DSR 2003:I, 375, para. 236.
576 Appellate Body Report, US – Offset Act (Byrd Amendment), para. 239.
577 Appellate Body Report, US – Offset Act (Byrd Amendment), paras. 240 and 244.
578 Appellate Body Report, US – Offset Act (Byrd Amendment), para. 254.
579 Appellate Body Report, US – Offset Act (Byrd Amendment), paras. 236 and 262.
580 Definitive Regulation, Recital 136.

the "fixed duty" is intended to apply when th e customs value of an import transaction has been
understated such that the actual import price of the transaction is below the MIP. The "fixed duty"
will not be collected when the post-importation verified import price is at or above the MIP.581
7.416 We recall that the MIPs were set by the investigating authority at prices that would remove
the injury suffered by the EC domestic industry. Therefore, any price below the MIPs would continue
to cause injury to the EC domestic industry. Mo reover, because the non-injury price was lower than
the non-dumped price, it follows that any price below the MIPs would also be at a level where
dumping would continue to exist. Thus, it is clear to us that the "fixed duty" may only be collected
when the constituent elements of dumping are present. This renders the "fixed duty" "specific" to
dumping within the meaning of Article 18.1.
7.417 Next we examine whether the "fixed duty" is a measure "against" dumping. We note that the
legal basis of the measure is Article 9(4) of the EC's Basic Anti-Dumping Regulation, which
specifically identifies the amount of the anti-dumpi ng duty that may be imposed by the investigating
authority following a finding of dumping, injury and causation.
582 The Basic Anti-Dumping
Regulation itself is intended to lay down detailed rules for the "protection against dumped imports
from countries not members of the European Community". 583 In addition, we observe that the "fixed
duty" was referred to in the Definitive Regulation as a "fixed anti-dumping duty" 584 and determined
on the basis of a comparison between the weighted average injury margin a nd the weighted average
dumping margin. 585 Thus, in our view, the "design and structure" of the measure is intended to
oppose and dissuade the practice of dumping. This is also evident from the fact that the measure will
not apply if actual import prices do not fall below the MIPs. Therefore, we find that the "fixed duty"
is also a measure taken "against" dumping, within the meaning of Article 18.1.
7.418 In conclusion, we find that the "fixed duty" applied by the investigating authority is a
"specific action against dumping" within the meani ng of Article 18.1 of the AD Agreement. It is
therefore subject to the disciplines of Article 9.4(i) of the AD Agreement, which we now examine.
- Whether the investigating authority acted inconsistently with Article 9.4(i)
7.419 We begin our evaluation of Norway's claim by re viewing the text of Article 9.4(i), which in
pertinent part reads:
"When the authorities have limited their examination in accordance with the second
sentence of paragraph 10 of Article 6, an y anti-dumping duty applied to imports from
exporters or producers not included in the examination shall not exceed:
 (i) the weighted average margin of dumping established with respect to
the selected exporters or producers or,
 (ii) where the liability for payment of anti-dumping duties is calculated
on the basis of a prospective normal value, the difference between the

581 We note that the "fixed duty" will also not be collected when the di fference between the post-
importation verified import price and the MIP is greater than the "fixed duty". In this case, the entire difference
between the MIP and the post-importation verified import price will be collected. This fact does not change our
analysis, because it is still clear that the only circumstances in which the "fixed duty" will be collected are when
the post-importation verified prices are below the MIP.
582 Definitive Regulation, Preamble and Article 1.
583 EC, Basic Anti-dumping Regulation, Recitals 1-30, Document G/ADP/N/1/EEC/2 (2 July 1996).
584 Definitive Regulation, Article 1(5).
585 Definitive Regulation, Recital 136.

weighted average normal value of the selected exporters or producers and the
export prices of exporters or producers not individually examined,
provided that the authorities shall disregard for the purpose of this paragraph any zero
and de minimis margins and margins established under the circumstances referred to
in paragraph 8 of Article 6. ..."
7.420 Article 9.4 applies when investigating author ities have conducted a limited examination in
accordance with Article 6.10 of the AD Agreement. In particular, Article 9.4 applies when an
investigating authority has not determined an i ndividual margin of dumping for each known exporter
or producer, within the meaning of the first sen tence of Article 6.10, and instead determined
individual margins of dumping for a limited number of interested parties selected from the known
exporters or producers, in accordance w ith the second sentence of Article 6.10.
586 In such cases,
Article 9.4 specifies that the anti-dumping duty appl icable to imports from the non-examined parties
must not exceed either of two benchmarks: (i) the weighted average of the margins of dumping
established for the examined parties, excluding zero and de minimis margins and margins calculated
on the basis of "facts available"; or (ii) where the liability for payment of anti-dumping duties is
calculated on the basis of a prospective normal valu e, the difference between the weighted average
normal value of the examined parties and the expo rt prices of the non-examined parties, excluding
zero and de minimis margins and margins calculated on the basis of "facts available". Norway's claim
relates to whether the anti-dumping duties applied by the investigating author ity exceeded the first of
these benchmarks, namely, the weighted average of the margins of dumping established for the
examined parties, excluding zero and de minimis margins and margins calculated on the basis of
"facts available".
7.421 In the present investigation, the anti-dumping du ties applied by the investigating authority to
non-investigated cooperating companies took the form of both minimum import prices (MIPs) and a
fixed anti-dumping duty. Norway argues that the investigating authority relied on the weighted
average margin of dumping for the individually inves tigated parties when setting the fixed duty. The
EC disputes this, and argues that the fixed duty was derived instead from the weighted average injury
margin, not the weighted average dumping margin for the investigated producers.
7.422 As we have already noted, the investigating au thority stated that the "definitive duty" would
be set at "the level of the dumping or injury margins, whichever is lower", in accordance with
Article 9(4) of the EC's Basic Anti-Dumping Regulation.
587 Article 9(4) of the EC's Basic Anti-
Dumping Regulation provides for the application of what is generally known as the "lesser-duty rule".
It reads, in pertinent part:
"The amount of the anti-dumping duty shall not exceed the margin of dumping
established but it should be less than the margin if such lesser duty would be adequate
to remove the injury to the Community industry."588
7.423 The investigating authority applied the "lesser-duty rule" in setting both the levels of the MIPs
and the fixed duty. In particular, as regards the "f ixed duty", the investigating authority explained its
methodology in the following terms:
"In accordance with Article 9(4) of the basic Regulation, the fixed duty was
calculated on the basis of the weighted aver age injury margin as this was found to be
lower than the weighted average dumping margin."589

586 Appellate Body Report, US – Hot-Rolled Steel, para. 115.
587 Definitive Regulation, Recital 129.
588 EC, Basic Anti-dumping Regulation, Article 9(4), Document G/ADP/N/1/EEC/2 (2 July 1996).

7.424 The investigating authority's explanation reveals that the "fixed duty" applied to non-
investigated cooperating companies was based on the weighted average injury margin (calculated to
be 14.6 per cent 590) because it was lower than the weight ed average margin of dumping for all
investigated companies (which was found to be 14.8 per cent 591). Thus, it is apparent that the
weighted average margin of dumping for investigated parties played a key role in the investigating
authority's determination of the duty to apply to non-investigated cooperating companies. The
weighted average dumping margin was central a nd indispensable to the comparison made when
applying the "lesser-duty rule". To this extent, th e investigating authority's decision to set the fixed
duty at the level of the weighted average injury margin was dependent upon the weighted average
dumping margin that was determined for the individually investigated parties.
7.425 Norway argues that the weighted average margin of dumping that was relied upon by the
investigating authority was overstated because it di d not reflect the downward adjustments made to
three individually investigated companies after th e investigating authority's Definitive Disclosure.
The EC acknowledges that it failed to adjust the 14.8 per cent figure for these downward revisions. 592
It follows that the weighted aver age margin of dumping of the i nvestigated producers used for the
purpose of identifying the level of the fixed duty shou ld have been lower than the 14.8 per cent figure
actually relied upon by the investigating authority.
7.426 In addition, according to Norway, the wei ghted average margin of dumping of the
investigated producers that was u sed for the purpose of determining the level of fixed duty was
calculated using the margin of dumping determined for Grieg, which Norway argues was based on
"facts available". The EC does not deny that the investigating authority used Grieg's margin of
dumping for this purpose, but argues that it was not based on "facts available". We recall that we
have already found that the investigating authority's determination of the margin of dumping for Grieg
did involve the use of "facts available".
593 Thus, the weighted average margin of dumping that was
used for the purpose of setting the level of fixed duties was calculated using a margin of dumping that
was based on "facts available". Furthermore, we note that Grieg's margin of dumping was 20.9 per
cent, the highest of all investigated parties. Th erefore, it must logically follow that the weighted
average margin of dumping of the investigated pr oducers would have been less than the 14.8 per cent
figure, had the investigating authority not included Grieg's margin of dumping in its calculations. In
this regard, we note that Norway has presented evidence which it argues demonstrates that the
weighted average margin of dumping for the investigated companies would have been 14.1 per cent
without the inclusion of Grieg's margin of dumping.
594
7.427 We recall that pursuant to Article 9.4(i), anti-dumping duties applied to imports from non-
investigated parties must not exceed the weighted average of the margins of dumping established for
the investigated parties, excluding zero and de minimis margins and margins calculated on the basis of
"facts available". In the present investigation, th e fixed duty applied to th e non-investigated parties
was set at the EUR per kilogram equivalent of the 14.6 per cent weighted av erage margin of injury
because this margin was found to be lower than the weighted average margin of dumping for the
investigated parties. However, as the EC ha s acknowledged, the 14.8 per cent figure used as the
weighted average margin of dumping for the inv estigated parties was overstated because it did not
take into account the downward revisions to the margins of dumping of three individually examined
producers. In addition, we have found that the inve stigating authority's calculation of the weighted

589 Definitive Regulation, Recital 136.
590 Definitive Regulation, Recital 127.
591 Definitive Regulation, Recital 32.
592 EC, FWS, para. 312.
593 See, para. 7.383.
594 Exhibit NOR-68. According to Norway, this figure would be 13.1 per cent if also calculated to
account for the revised margins of dumping for the three relevant investigated producers.

average margin of dumping for the investigated parties included Grieg's margin of dumping, which
was the highest margin of dumping of all investig ated producers and derived from "facts available".
Thus, the basis of the investigating authority's findi ng that the margin of injury was lower than the
margin of dumping, and therefore by implication, that the fixed duty applied to the non-investigated
cooperating companies did not exceed the weighted average of the margins of dumping established
for the investigated parties, excluding margins calculated on the basis of "facts available", was flawed.
7.428 In this light, to the extent that it determined the fixed duty on the basis of an assessment that
relied upon a weighted average margin of dumping for investigated parties that (i) was overstated
because it did not take into account downward re visions to the margins of dumping of three
individually examined producers; a nd (ii) was calculated with reliance on a margin of dumping that
was based on "facts available", we find that the i nvestigating authority acted inconsistently with
Article 9.4(i) of the AD Agreement.
 Non-cooperating companies

7.429 Norway claims that the investigating authority acted inconsistently with Article 9.4(i) because
it attributed to non-cooperating companies a margin of dumping that ex ceeded the weighted average
of the margins of dumping calculated for the indivi dually investigated companies, excluding zero and
de minimis margins and margins calculated on the basis of "facts available". Unlike its claim in
respect of non-investigated coope rating companies, Norway does not argue that the margin of
dumping attributed to non-cooperating companies re sulted in the application of an anti-dumping duty
that exceeded the weighted aver age of the margins of dumping calculated for the individually
investigated companies. Rather , Norway's claim is limited to the allegation that investigating
authority's finding that non-cooperating companies dumpe d at a rate of 20.9 per cent was inconsistent
with the benchmark set out in Article 9.4(i). Thus, Norway's claim is premised on the view that
Article 9.4(i) governs the determination of margins of dumping for non-cooperating companies.
7.430 The EC contests Norway's allegation, arguing that Article 9.4(i) does not discipline the
determination of margins of dumping for non-cooperating companies, but rather only the imposition
of anti-dumping duties.
7.431 As we have already noted, Article 9.4(i) applies when an investigating authority has not
determined an individual margin of dumping for each known exporter or producer, within the meaning
of the first sentence of Article 6.10, and instead determines individual margins of dumping for a
limited number of interested pa rties selected from the known exporte rs or producers, in accordance
with the second sentence of Article 6.10. The focus of Article 9.4 is therefore on the "exporters or
producers not included in the examination" that could have been potentially included in the selection
of parties to investigate pursuant to the second sente nce of Article 6.10. In our view, this does not
include exporters or producers that did not identify themselves to the investigating authority for the
purpose of being selected in the limited investiga tion because such exporters or producers could not
have been potentially included in the selection of th e parties to investigate. Thus, the disciplines in
Article 9.4(i) apply only in respect of non-investig ated parties that cooperated with the investigating
authority for the purpose of selection of the parties that would be subject to a limited investigation. It
does not apply in respect of parties that did not cooperate for this purpose.
595

595 We note that the principle that non-cooperating parties may be treated differently to cooperating
parties is also recognized in paragraph 7 of Annex II of the AD Agreement, which pr ovides that "[i]t is clear,
however, that if an interested party does not cooperate and thus relevant information is being withheld from the
authorities, this situation could lead to a result which is less favourable to the party than if the party did
cooperate".

7.432 In the present investigation, the non-coopera ting companies were identified as companies
which "did not cooperate or did not make themselves known". 596 This may be contrasted with the
non-investigated cooperating companies, which we re identified as "[c]ompa nies which cooperated,
but which were not selected in the sample, and whic h are not related to any of the companies included
in the sample". 597 It follows that the non-cooperating companies included any investigated company
that did not cooperate in the investigation and any non-investigated company that did not make itself
known to the investigating authority for the purpose of being selected in the limited investigation. We
note that none of the investigated companies were found to be non-cooperating. Thus, the margin of
dumping attributed to non-cooperating companies was assigned only to companies that did not make
themselves known to the investigating authority fo r the purpose of being selected in the limited
investigation.
7.433 In this light, we find that the investigating aut hority's attribution of a 20.9 per cent margin of
dumping to non-cooperating companies does not fall within the scope of Article 9.4(i) of the
AD Agreement. To this extent, Norway's claim that the investigating authority acted inconsistently
with Article 9.4(i) is unfounded, and we therefore dismiss it.
(ii) Claim under Article 6.8 and paragraph 1 of Annex II of the AD Agreement
7.434 Norway claims that the EC acted inconsistently with Article 6.8 and pa ragraph 1 of Annex II
of the AD Agreement because it alle ges that the investigating authority improperly relied upon "facts
available" to establish margins of dumping for the non-cooperating companies. 598 The EC does not
contest that the investigating authority relied on "fac ts available" when it determined the margin of
dumping for non-cooperating companies. However, it questions whether any breach of Article 6.8
occurred in the present investiga tion when the anti-dumping duties a pplied to the non-cooperating
companies were not based on the margins of dumping that were determined for these companies. In
any case, the EC contends that the circumstance s of the investigation were such that the non-
cooperating companies were given sufficient notice, within the meaning of paragraph 1 of Annex II.
7.435 The EC's response to Norway's claim raises one initial threshold question: whether the use of
"facts available" for the calculation of a margin of dumping which is not determinative of the anti-
dumping duty imposed may fall within the scope of Article 6.8 of the AD Agreement.
7.436 We recall that the text of Article 6.8 provid es that "preliminary and final determinations,
affirmative or negative, may be made on the basis of the facts available" when certain conditions have
been satisfied. 599 Although not defined, it is clear th at the expression "preliminary and final
determinations, affirmative or negative" refers to the determina tions called for or contemplated under
the AD Agreement, which include, for example, th e "determination of dumping" under Article 2 and
the "determination of injury" under Article 3. An investigating authority's "determination" of
dumping therefore falls squarely within the scope of Article 6.8. We see nothing in the language of
Article 6.8 to indicate that its scope should be lim ited only to "determinations" that are determinative
of the level of anti-dumping duties that is actually applied by an investigating authority.
7.437 Thus, we are not convinced by the EC's cont ention that, in the present investigation, the
investigating authority's establishment of the margins of dumping for the non-cooperating companies
cannot be impugned under Article 6.8 and Annex II of the AD Agreement because it was not
determinative of the level of anti-dumping duties a pplied to the non-cooperating parties. While the
EC may consider Norway's claim to be "academic ", we do not understand it to suggest that it is

596 Provisional Regulation, Recital 40.
597 Provisional Regulation, Recital 38.
598 Norway, FWS, paras. 483-491.
599 See, para. 7.340.

frivolous, or that Norway has not appropriately "e xercised its judgement" as to whether the claim
"would be fruitful" within the meaning of Article 3. 7 of the DSU. In this regard, we recall that
Article 3.7 of the DSU neither requires nor authoriz es us to look behind Norway's decision to bring
this claim and to question the exercise of its judgement.
600 Furthermore, we note that pursuant to
Article 3.8 of the DSU, there is a presumption th at benefits are nullified or impaired whenever a
provision of the WTO Agreement has been violated. In the light of this presumption, it would be for
the EC to show that any conduct of the investigati ng authority that we may find to be inconsistent
with Article 6.8 has not nullified or impaired be nefits accruing to Norway under the Agreement. 601
However, we note that the EC has failed to adduce any evidence in this respect.
7.438 We now turn to address the remainder of Norway's claim. However, before doing so, we
briefly set out the pertinent facts surrounding the in vestigating authority's determination of the non-
cooperating companies' margins of dumping.
 Facts

7.439 The investigating authority's first notification of the consequences that non-cooperation could
bring in the investigation was contained in the Noti ce of Initiation. This notification was published in
the Official Journal on 23 October 2004, and read:
"In cases in which any interested party refuses access to or does not provide the
necessary information within the time limits, or significantly impedes the
investigation, provisional or final findings, affirmative or negative, may be made in
accordance with Article 18 of the basic Regulation, on the basis of facts available."602
7.440 On 26 October 2004, the investigating authorit y met with a representative of the Norwegian
Seafood Federation ("FHL"), who also acted on behalf of the Norwegian Seafood Association, 603 to
discuss the initiation of the investigation. The FH L representative said that the two Associations
would "collaborate under the informal title of 'the salmon project'" to streamline communications with
the investigating authority. The representative signed for the receipt of "the initiation papers"
comprising "a cover letter addressed to [the] Associ ation, the sample questionnaire, the questionnaire
intended for producers/exporters in relation to pr oceeding AD 487, relating to imports of farmed
salmon from Norway, a list of producers/exporters." 604 The list of "producers/exporters" were those
that had apparently already been cont acted by the investigating authority. 605 The investigating
authority asked the FHL representative to "check th e provided list of exporters/producers in order to
ensure that all relevant companies got the form ". He was also "reminded that it [was] each
compan[y's] responsibility to ask for forms if not received directly".606
7.441 The "sampling form" provided to the FHL e xplained that it was "designed to assist
exporters/producers in submitting the required info rmation to the Commission services as mentioned

600 Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS)
from the United States – Recourse to Article 21.5 of the DSU by the United States ("Mexico – Corn Syrup
(Article 21.5 – US)"), WT/DS132/AB/RW, adopted 21 November 2001, DSR 2001:XIII, 6675, para. 74.
601 Panel Report, Argentina – Definitive Anti-Dumping Measures on Imports of Ceramic Floor Tiles
from Italy ("Argentina – Ceramic Tiles") , WT/DS189/R, adopted 5 November 2001, DSR 2001:XII, 6241,
paras. 6.104-6.105.
602 Exhibit EC-9, paragraph 8.
603 See, Note for the File , 28 October 2004, Exhibit EC-55; NSL Power of Attorney ,
22 November 2004, Exhibit EC-56.
604 See, Note for the File, 28 October 2004, Exhibit EC-55.
605 EC, Answer to Panel Question 88.
606 See, Note for the File, 28 October 2004, Exhibit EC-55.

in the Notice of Initiation". It "encouraged" reci pients to read the Notice of Initiation, which
contained "[f]ull explanations of the procedures relating to" the proceeding.607
7.442 By e-mail of 2 November 2004, the FHL representa tive informed the investigating authority
that another entity, the Norwegian Seafood Export Co uncil, had decided to participate in the "salmon
project" managed by the FHL. The e-mail explained that the "main task of the [salmon project was]
to assist the industry and the organisations in all aspects when dealing with dumping and/or Safeguard
question".608 The e-mail also reveals that the FHL ha d found the list of "approx 160" producers and
exporters provided by the investigating authority to the FHL at the meeting of 26 October 2004 to be
"fairly complete" as regards exporters, but "incomplet e" in respect of producers. The FHL therefore
sent the "sampling form to an additional number of producers, tak[ing] into account that an eventual
sample should have representativeness from north to south, smaller and bigger companies, and
independent as well as integrated companies". 609 The e-mail lists the names, addresses and telephone
numbers of 27 companies to whom the FHL sent the "sampling form".
7.443 In response to the request for information made in the Notice of Initiation, the investigating
authority received information from 102 companies by the 8 November 2004 deadline. 610 These
included the responses of 89 companies to the "sampling questionnaire", coordinated through the
FHL.611
7.444 On 18 November 2004, the FHL sent an e-mail to the investigating authority referring to a
meeting held with the investigating authority on 17 November 2004 and proposing ten companies for
inclusion in the investigating authority's limited investigation. This e-mail also contained an
"[a]lphabetical list of [157] Norwegian salmon farming companies, with addresses and number of
licenses".612
7.445 The Provisional Regulation suggests that the investigating authority was, at that stage, under
the impression that it had notified all known interested parties:
"The Commission officially advised the co mplainant, Norwegian producers, traders,
importers, suppliers and users known to be concerned, as well as associations known
to be concerned and represen tatives of Norway, of the op ening of the proceeding.
Interested parties were given an opportuni ty to make their views known in writing
and to request a hearing within the time limit set in the notice of initiation."613
7.446 The Provisional Regulation identified "non-coop erating companies" as companies "which did
not cooperate or did not make themselves known". After reviewi ng "information available", the
investigating authority concluded that such compan ies had not "dumped at a level lower than any of
the companies included in the sample". Consequently, it determined that they should be attributed the
highest margin of dumping calculated for an investig ated producer at the provisional stage, that of
Fjord Seafood AS, 37.7 per cent. 614 However, provisional anti-dumping duties were established at a
rate of 24.5 per cent, the dumping margin determin ed for Follalaks AS, because this was lower than

607 Exhibit NOR-38.
608 Exhibit EC-64.
609 Exhibit EC-64.
610 Provisional Regulation, Recital 16.
611 Exhibit NOR-38.
612 Exhibits EC-4 and EC-52.
613 Provisional Regulation, Recital 6.
614 Provisional Regulation, Recitals 41, 42 and 139.

the weighted average of the marg in of injury calculated by the investigating authority for all
investigated producers.
615
7.447 The Provisional Regulation lists 119 companies by name and specifically identifies the anti-
dumping duty applicable to each. All companies not named in the 119 were treated as non-
cooperating companies.
616
7.448 Following the investigating authority's provisi onal determination, th e FHL submitted a letter
dated 4 May 2005 to the investigating authority complaining about the application of the 24.5 per cent
duty on the non-cooperating companies and requesting a hearing with the investigating authority. The
letter asserted that the salmon farmers "subject to th e 24.5 per cent [duty] are small companies, some
being family companies managed by husband and wife ". The letter alleged that "many" of the
companies treated as non-cooperating did not receive the "sample form", citing the following three
main reasons:
"Some of the companies are not members of the industry organisations in Norway
and for that reason they did not receive information through such channels.
They were not on the list of companies for which the Commission transmitted the
sample form directly.
Some of the companies report problems with internet connection or that the e-mail
address used has not been correct, and that they consequently did not receive the
sampling form."617
7.449 The letter from the FHL identifies 88 compani es that were treated as non-cooperating, and
asserts that 67 of these companies did not receive a "sampling form". 618 Norway has indicated that 33
of these companies were not members of the FHL or the NSL at the time that the "sampling form"
was distributed.619 Thus, 34 of the companies that did not receive the "sampling form" were members
of the FHL at the time of its distribution.
7.450 The meeting requested by the FHL in its letter of 5 May 2005 apparently took place on
2 June 2005. Norway asserts that the FHL pres ented the investigating authority with individual
powers of attorney for 64 of the 88 companies that were treated as non-cooperating. 620 The EC has
not disputed Norway's assertion.621 Attending that meeting were representatives of the FHL, the NSL,
Mr. Trond S. Paulsen from the law firm Trond S Paul sen, and 28 companies. The record of this
meeting that was submitted by Norway as evidence in this dispute indicates that, in addition to
interventions by Mr Paulsen and the representative of the NSL, five companies also made statements,
explaining their situations and offering to comply with any future requests for information from the
Commission.622
7.451 Finally, as we have already noted, in the De finitive Regulation, the investigating authority
attributed a margin of dumping of 20.9 per cent to the non-cooperating companies. This margin was
set at the level of the highest individual dumping ma rgin established for an investigated cooperating

615 Provisional Regulation, Recital 139.
616 Provisional Regulation, Article 1(3).
617 Exhibit NOR-152.
618 Exhibit NOR-152.
619 Norway, Answer to Panel Question 134.
620 Norway, Answers to Panel Questions 135 and 136.
621 European Communities, Comments on Norway's Answers to Panel Questions 135 and 136.
622 Exhibit NOR-153. It is unclear from the record submitted by Norway exactly how many of the
companies that attended the meeting were members of the FHL or the NSL.

company, Grieg. However, it was not used by the investigating authority for purpose of establishing
either the MIPs or the fixed duties.623
Whether the investigating authority acted inconsis tently with Article 6.8 and Annex II of the
AD Agreement

7.452 We recall that pursuant to Article 6.8 of the AD Agreement, an investigating authority may
use "facts available" for the purpose of making its preliminary and final determinations when any
interested party refuses access to, or otherwise does not provide, necessary information within a
reasonable period or significantly impedes the inves tigation. In resorting to "facts available", the
disciplines that are set out in Annex II must also be respected. Of particular relevance to Norway's
claim are the rules set out in paragraph 1 of Annex II, which reads:
"As soon as possible after the initiation of the investigation, the investigating
authorities should specify in detail the information required from any interested party,
and the manner in which that information shou ld be structured by the interested party
in its response. The authorities should also ensure that the party is aware that if
information is not supplied within a reasonable time, the authorities will be free to
make determinations on the basis of the f acts available, including those contained in
the application for the initiation of the investigation by the domestic industry."
7.453 Paragraph 1 of Annex II establishes two obliga tions on investigating authorities wanting to
use "facts available" in their determinations: Firs t, they must inform any interested party of the
information that must be supplied during the course of a proceeding; and secondly, the party must be
made aware of the consequences of not submitting requ ested information, in particular, the possibility
that "facts available", including those presented in a complainant's application, could be applied. In
Mexico – Anti-Dumping Measures on Rice , the Appellate Body explained these obligations in the
following terms:
"The last sentence of Article 6.8 provides that the provisions of Annex II shall be
observed in the application of that para graph. In particular, under the second
sentence of paragraph 1 of Annex II, the i nvestigating authorities should 'ensure' that
an interested party is "aware" that, if the required information is not supplied within a
reasonable time, "the authorities will be free to make determinations on the basis of
facts available, including those contained in the application for the initiation of the
investigation by the domestic industry ." (emphasis added) The second sentence of
paragraph 1 of Annex II c onditions the use of facts from the petitioner's application
on making the interested party "aware" that, if the information is not supplied by it
within a reasonable time, the investigating authority will be free to resort to these
facts available. In other words, an exporte r shall be given the opportunity to provide
the information required by the investigating authority before the latter resorts to facts
available that can be adverse to the exporter's interests. An exporter that is unknown
to the investigating authority—and, theref ore, is not notified of the information
required to be submitted to the inves tigating authority—is denied such an
opportunity. Accordingly, an investigating authority that uses the facts available in
the application for the initiation of the investigation against an exporter that was not
given notice of the information the investigating authority requires, acts in a manner
inconsistent with paragra ph 1 of Annex II to the Anti-Dumping Agreement and,
therefore, with Article 6.8 of that Agreement."
624 (Footnote omitted).

623 See, para. 7.408.
624 Appellate Body Report, Mexico – Anti-Dumping Measures on Beef and Rice, para. 259.

7.454 The EC argues that the facts of the present investigation must be distinguished from those in
Mexico – Anti-Dumping Measures on Rice case.
625 According to the EC, the situation in the present
investigation is qualitatively different from that in the Mexico – Anti-Dumping Measures on Rice
because the investigating authority in the latter cas e had notified only those exporting companies that
had been identified in the petition, as well as two companies that had made themselves known. The
Mexican investigating authority had undertaken no fu rther effort to contact any other companies that
might be concerned by its investigation. In contrast , in the investigation at issue, the EC argues that
the investigating authority contacted all of the co mpanies in the industry that it knew of, with the
assistance of the FHL, which had received a copy of the "sampling questionnaire" and the Notice of
Initiation setting out an explicit warning of the possibl e use of "facts available" in the event of non-
cooperation.
626 To this end, the EC contends that the FHL served as a channel of communication
between the investigating authority and Norwegian salmon producers and exporte rs, in particular, for
the purpose of selecting the companies that would be examined.627
7.455 We agree with the EC that there are important differences between the actions of the
investigating authority in Mexico – Anti-Dumping Measures on Rice and those of the investigating
authority in the investigation at issue in the pr esent dispute. However, these differences cannot
change the nature of the obligation set out in paragr aph 1 of Annex II. In this regard, we observe, as
the Appellate Body did in Mexico – Anti-Dumping Measures on Rice , that pursuant to paragraph 1 of
Annex II an interested party must not only be informed of the information required by an
investigating authority for the purpose of its investig ation, but it must also be given an opportunity to
provide it before
 the investigating authority may resort to "facts available" within the meaning of
Article 6.8. Thus, we must assess whether th e investigating authority complied with these
requirements, in the light of the particular facts and circumstances of the investigation at issue.
7.456 The investigating authority resorted to "facts available" in establishing the margin of dumping
for "non-cooperating companies", which it defined as companies that "did not cooperate or did not
make themselves known". 628 None of the investigated companies or companies that submitted a
response to the investigating authority's "sam pling form" were found not to have cooperated. 629 I t
follows that the "non-cooperating companies" a ttributed the margin of dumping based on "facts
available" were companies that "did not make them selves known" to the investigating authority – that
is, companies that did not respond to the investigatin g authority's request for information contained in
the "sampling questionnaire".
7.457 The Provisional Regulation reveals that the investigating authority believed that it had
informed all known interested parties of the opening of the proceeding. However, the evidence that is
before us indicates that 67 of the companies treated as "non-cooperating" did not receive the
"sampling questionnaire" or the Notice of Initiation, containing the investigating authority's request
for information and warning about the possible u se of "facts available" in the event of non-
cooperation. The EC does not contest that the inv estigating authority was not aware of the existence
of these 67 companies at the time it sent out the " sampling questionnaire" and when it subsequently
selected the companies to examine. However, according to the EC, the investigating authority should
not be faulted for relying on "facts available" in the present case because, in its view, the FHL had
effectively undertaken to ensure that all relevant companies would be informed of the investigation.630
Thus, the EC argues that by acting in consultation and through the FHL, the investigating authority

625 EC, FWS, para. 327.
626 EC, FWS, para. 324.
627 EC, Answer to Panel Question 88.
628 Provisional Regulation, Recital 40, Exhibit NOR-9.
629 Provisional Regulation, Article 1(3), Exhibit NOR-9.
630 EC, Answers to Panel Questions 88 and 110.

took all reasonable steps to bring both the investig ation and the need to complete the "sampling
questionnaire" to the attention of all the 67 companies.631
7.458 We note that the FHL informed the investigati ng authority that three industry Associations
had decided to work together, under the informal title of "the salmon project", in order to streamline
communications with the investigating authority and assist the Norwegian salmon industry in "all
aspects when dealing with dumping ... questions". Th e investigating authority initially asked the FHL
to check a list of "approx 160 companies" that it ha d already contacted "in order to ensure that all
relevant companies got the [sampling] form". The FHL reviewed the list and reported that it was
"fairly complete" as regards expor ters, but "incomplete" in respect of producers. The FHL took the
initiative of sending the "sampling form" to 27 "a dditional" producers. Subsequently, the FHL
submitted the completed "sampling questionnaires" of 89 companies to the investigating authority by
the 8 November 2004 deadline; and on 18 November , it submitted to the investigating authority its
own proposal of companies to include in the investig ation, including for this purpose, a list of "the
Norwegian salmon farming companies, with addresses and number of licenses". In our view, these
facts suggest that the FHL had not only presented itself to the investigating authority as the single
voice and channel of communication for dealings with the three industry Associations, but also that it
had decided to take an active role in contacti ng all Norwegian salmon produ cers it considered were
"relevant" to the investigating authority's investigation.
7.459 Additional insights into the scope of the FHL's role in informing interested parties of the
investigating authority's investigation can be found in its letter to the investigating authority of
4 May 2005. In this letter, the FHL notes that one of the reasons why "some" of 67 companies did not
receive the "sampling questionnaire" was that "the companies are not members of the industry
organisations in Norway and for that reason
 they did not receive information through such channels"
(underline added). In other words, the FHL informed the investigating authority that "some" of the
67 companies did not receive the sampling questio nnaire because they were not members of the
Norwegian industry associations, and could not theref ore be contacted by the associations. In our
view, this implies that it was the FHL's own view that had such companies been members of the
Norwegian industry associations, they would have b een informed of the investigation and received a
copy of the "sampling questionnaire". This suggests that the FHL had in fact assumed the role of
informing all of the members of the associations it represented of the EC's investigation.
7.460 We recall that Norway has indicated that at th e time of the selection of the companies that
would form part of the investigating authority's li mited examination, 33 of the 67 companies that did
not receive the "sampling questionnaire" were not members of the FHL or the NSL. In the light of the
statement made by the FHL in its letter of 4 May 2005, it follows that these companies could not have
been contacted through the FHL. On the other ha nd, it also follows from the FHL's statement that it
must have contacted or at least attempted to contact the remaining 34 companies that allegedly did not
receive the "sampling questionnaire". If this were not the case, the FHL's revelation that "some" of
the 67 companies did not receive the "sampling ques tionnaire" "for the reason that" they were not
members of industry associations would not make sense.
632 In this regard, we note that another of the
reasons advanced by the FHL to explain why certain companies did not receive a "sampling
questionnaire" was that technical problems with in ternet connections or incorrect e-mail addresses

631 EC, Answer to Panel Question 88.
632 Such a conclusion is also supported by the statement made by Mr Paulsen at the meeting of 2 June
2005, where he explained that "[m]ost of [the companies concerned] were not [a] sic member of any trade or
industry organization and, thus, did not receive the sample form through such channels." Exhibit NOR-153,
para. 13.

hindered the distribution of the "sampling questionnai re". This suggests that FHL may also have had
problems contacting its own members.
633
7.461 On balance, we believe that the relevant facts and circumstances surrounding the investigating
authority's selection of companies to investigate, demonstrate that the investigating authority did
enough to comply with the requirements of paragr aph 1 of Annex II, in respect of 34 of the
67 companies that did not allegedly receive a copy of the "sampling questionnaire". In the particular
circumstances of the present investigation, we see no reason why, even in the absence of powers of
attorney granted by all of the relevant companies to the FHL, 634 the investigating authority could not
have relied upon the FHL to communicate its requ est for information and the warning about the
possible use of "facts available" in the event of non-cooperation, to all members of the associations
that it represented. The investigating authority acted in consultation with the FHL in selecting the
companies to examine and also for the purpose of distributing the "sampling questionnaire" and
Notice of Initiation. The FHL held itself out as the channel of communication between the
investigating authority and three industry associations . It responded to the investigating authority's
request to check the list of "approx 160 compan ies" already contacted, and actively pursued
contacting additional producers when it considered the investigating authority's efforts were
insufficient. The "sampling questionnaires" of 89 of 102 companies were submitted through the FHL.
The FHL expressly indicated that certain allege dly non-cooperating companies had not received a
"sampling questionnaire" because they were not members of the industry associations, implying that
such companies would have received the relevant information had they been members. It also
revealed that some of its members did not receive the "sampling questionnaire" because of technical
problems affecting its transmission. And, finally, the FHL made representa tions on behalf of its
members that had apparently not been contacted by the investigating authority after the stage of
provisional findings, confirming its role as intermed iary between its members and the investigating
authority.
7.462 However, to the extent that 33 of the 67 companies that did not receive the "sampling
questionnaire" were not members of any of the associations represented by the FHL, we find that the
EC did not provide these companies with the releva nt notices required under paragraph 1 of Annex II.
Because these companies were unknown to the inves tigating authority (and not members of the FHL
or NSL), they could not have received the releva nt notices under paragraph 1 of Annex II. We see
nothing in the facts that have been presented before us to suggest that the FHL had indicated that it
would act as a channel of communication between th e investigating authority and companies that
were not part of the membership of the relevant industry Associations at the time that the "sampling
questionnaire" was being distributed. Thus, to the extent that the investigating authority applied
"facts available" for the purpose of establishing the margin of dumping of the 33 companies that did
not receive a "sampling questionnaire" and which were not members of the FHL or the NSL, we find
that it acted inconsistently with paragraph 1 of Annex II and therefore also Article 6.8 of the
AD Agreement.

633 That technical problems prevented the FHL from contacting some of its members was confirmed at
the meeting of 2 June 2005, where Mr Paulsen revealed that "[s]ome of the comp anies experienced problems
with internet connections or correct e-mail address and they, conseq uently, did not receive the sampling form
from the FHL". Exhibit NOR-153, para. 13.
634 We note that Norway argues th at in the absence of powers of attorney from each of the 67
companies at issue, the investig ating authority was required to c ontact and communicate with each on
individually. Norway, Answers to Panel Questions 135 and 136.

F. ALLEGED INCONSISTENCY OF VARIOUS ASPECTS OF THE EC'S DETERMINATION OF
CONSTRUCTED NORMAL VALUE WITH THE AD AGREEMENT
1. Alleged Inconsistency of the EC's Treatment of Non-Recurring Costs with Articles 2.1,
2.2 and 2.2.1.1 of the AD Agreement
(a) Arguments of the Parties
(i) Norway
7.463 Norway claims that the investigating authority acted inconsistently with Articles 2.1, 2.2 and
2.2.1.1 of the AD Agreement when it included a num ber of non-recurring costs ("NRCs") in the cost
of production it calculated for three investigated companies, [[XXX]], [[XXX]] and [[XXX]].
Norway argues that costs of production are the expenses that a producer incurs to pay for the
economic resources used to produce the like product sold during the period of investigation.
According to Norway, in identifying costs of production for the purpose of constructing normal value,
investigating authorities must, pursuant to the fi rst sentence of Article 2.2.1.1, demonstrate a
relationship between each element of cost and produc tion of the like product. In Norway's view, the
last sentence of Article 2.2.1.1 indicates that such a relationship may be fo und to exist between NRCs
and production during the period of investigation onl y when NRCs "benefit future and/or current
production".
7.464 Norway describes NRCs as costs that are not incurred on a repeated or regular basis, which do
not necessarily affect production and sale of a good . Thus, Norway considers that NRCs do not all
involve outlays that pay for resources used in current or future production, and should therefore not all
be included in the cost of production. For instan ce, Norway submits that costs arising from the
elimination of formerly productive resources through plant closures, severance payments and losses
from impairment of assets, have no link with production activities and should therefore not be
included in a producer's costs of production. Moreover, according to Norway, investigating
authorities are not entitled to allocate the entire amount of NRCs incurred during the period of
investigation, but must instead appropriately allocat e a portion of such costs to the extent that they
"benefit" production of the like product during the period of investigation or thereafter.
7.465 In respect of [[XXX]], Norway asserts that the upward adjustment for NRCs made by the
investigating authority amounted to [[XXX]] of its co st of production for the period of investigation.
According to Norway, this adjustment was compri sed of one-third of the sum of certain NRCs
incurred by [[XXX]] in the years 2002, 2003 and 2004. In total, the investigating authority added
NOK [[XXX]] million to [[XXX]] cost of production, which was made up of adjustments for: (i) the
write-down in the value of biomass due to deform ity reported in [[XXX]] 2003 audited accounts; (ii)
the write-down in the value of several production facilities including the [[XXX]] in 2003; and (iii) 24
"other items", including the "write down of assets on the closure of production facilities and various
consequential costs, such as severance pay".
635 Norway asserts that the investigating authority failed
to provide an adequate explanation for why it tr eated all of these NRCs as costs of production, and
argues that, in any case, none of them benefited pr oduction and sale of salmon during the period of
investigation or thereafter, and therefore, pursuant to Article 2.2.1.1, should not have been included in
[[XXX]] cost of production.
7.466 As regards [[XXX]], Norway asserts that th e upward adjustment for NRCs made by the
investigating authority amounted to [[XXX]] of its co st of production for the period of investigation.
Norway submits that the investigating authority made one single adjustment reflecting one-third of the
amounts of losses resulting from [[XXX]] investment activities in the years 2002, 2003 and 2004.

635 Norway, FWS, para. 831.

These losses comprised write-downs in the value of certain equity investments made by [[XXX]] in
other companies, including companies that were not involved in the production and sale of salmon.
Norway contends that [[XXX]] made detailed submissi ons to the investigating authority in respect of
its investment losses, arguing that they should not be included in its cost of production. Norway
asserts that the investigating authority failed to respond to these objections. In any case, Norway
argues that the losses on [[XXX]] investments related to its investment business, and had nothing to
do with production and sale of salmon. They should therefore not have been included in its cost of
production for the period of investigation.
7.467 To the extent that it determined the amount of the NRC adjustments for [[XXX]] and
[[XXX]] on the basis of a three-year average cove ring 2002 to 2004, Norway also claims that the
investigating authority acted inconsistently with Article 2.2.1.1 and, con sequently, Articles 2.1 and
2.2 of the AD Agreement. In particular, Norway ar gues that the three-year averaging approach fails
to comply with Article 2.2.1.1 because it is not based on any rational link between the apportionment
of costs and the production activities benefiting from t hose costs. In this regard, Norway contends
that there is no rational relationship between the salmon growth cycle and the period during which a
particular NRC will contribute to salmon production. Thus, for instance, according to Norway, a one-
off severance payment to terminate employment has no relationship to the life of a salmon; nor is the
salmon growth cycle relevant to either the annua l revaluation of biomass or to operating losses
incurred at a production plant in a given year.
7.468 Finally, in respect of [[XXX]], Norway challenges the investigating authority's adjustment for
the write-down in the value of four smolt producti on facilities that were closed in December 2003.
Norway submits that this adjust ment resulted in increasing [[XXX]] co st of production by [[XXX]].
According to Norway, the smolt facilities at i ssue did not contribute to the production of salmon
during the last three quarters of the period of investigation. Again, Norway contends that the
investigating authority's response to the submissions made by [[XXX]] objecting to the treatment of
these NRCs as costs of production was inadequate and did not explain why they could be used in the
calculation of cost of production of salmon for the period of investigation. Norway notes that as
opposed to the approaches used to calculate the NRC adjustments for [[XXX]] and [[XXX]], the
investigating authority did not average the write- down value at issue over a three year period.
Instead, it took the entire amount of this cost incu rred in 2003 and added it to [[XXX]] cost of
production. Norway contends that this inconsiste ncy further invalidates the application of the three-
year average methodology that was applied to [[XXX]] and [[XXX]].
7.469 Thus, for all of the above reasons, Norway cl aims that the EC's tr eatment of the NRCs
reported by [[XXX]], [[XXX]] and [[XXX]] resulted in a determination of normal values that was
inconsistent with Articles 2.1, 2.2 and 2.2.1.1 of the AD Agreement.
(ii) European Communities
7.470 The EC rejects Norway's claim that the investigating authority was not entitled to include all
of the relevant NRCs of [[XXX]], [[XXX]] and [[ XXX]] in their respective costs of production.
According to the EC, the investigating authority's ac tions were in full compliance with Article 2.2.1.1
of the AD Agreement, and consequently, Articles 2.1 and 2.2.
7.471 The EC dismisses Norway's view that, under Artic le 2.2.1.1, NRCs can only be included in
the cost of production when they measure resour ces expended to "benefit future and/or current
production". The EC submits that this notion of when NRCs may form part of cost of production is
too narrow to meet the requirement in Article 2.2.1.1 that costs be "reasonably associated" with
production of the like product. Furthermore, the EC ar gues that the adjustments referred to in the last
sentence of Article 2.2.1.1 will become necessary only when NRCs have not been allocated in the cost
information referred to in the first two sentences of Article 2.2.1.1.

7.472 The EC contends that NRCs may be appropriately treated as part of the cost of production
when they arise from the inherent risks associated with the continuing operations of a salmon business
segment. According to the EC, a business segment is a "distinguishable component of an entity that is
engaged in providing an individu al product or service or group of related products and services and
that is subject to risks and returns that ar e different from those of other business segments" 636 – a
"complete and separate business activity". In the c ontext of salmon farming, the EC argues that a
business segment represents "all activities that are related to growing, ha rvesting and marketing
salmon". Thus, the EC argues that the relevant dist inction for the purpose of applying Article 2.2.1.1
relates to the concept of income or loss from continui ng operations. In other words, to the extent that
costs (including NRCs) relate to the inherent ri sks associated with the continuing operations of a
business segment, they may be taken into account for the purpose of establishing the relevant cost of
production. It is only extraordinary costs, which are by definition not related to the risks inherent in
continuing operations, that should not be included in cost of production.
7.473 The EC asserts that in conformity with Article 2, the investigating authority followed this
theory of cost of production and sought to dete rmine the full cost of production for each of the
investigated parties, taking into account all cost items related to the product concerned, wherever
reported in the financial statements. Thus, the EC contends that the investigating authority was
justified in making all of the adjustments that No rway challenges because each cost resulted from an
inherent risk of conducting the salmon business.
7.474 As regards [[XXX]], the EC argues that the investigating authority was justified in making the
biomass deformity adjustment because such deformity and loss of value was an inherent risk in the
conduct of its salmon business. According to the EC, the write-down at issue was not based on a
changed market valuation of the product, but rather the result of the fact that some biomass showed
physical deficiencies. Thus, the EC argues that th e adjustment of the value of the assets was a cost
element of the salmon business, regardless of whether it affected the [[XXX]] cash flow position, i.e.,
regardless of whether [[XXX]] expended this sum or that the write-down did not reflect any outlay
incurred by [[XXX]] for resources used directly in the production of salmon. In respect of the other
NRCs, the EC argues that these costs all formed pa rt of the salmon business because they related to
ongoing efforts of rationalization which would bene fit the salmon business by bringing efficiency
gains in future years.
7.475 The EC explains that the investigating author ity examined the salmon business of [[XXX]] as
a business segment, and thereby treated all costs associated with this business segment, whether or not
directly related to business transactions or financial participations, as NRCs that were integral to the
salmon business. As regards [[XXX]] investments in companies that Norway alleges were not salmon
related, the EC asserts that it could not accept such a claim because it was never substantiated.
7.476 The EC argues that the adjustment made to [[XXX ]] cost of production reflected the evidence
that was available to the investigating authority duri ng the investigation. First, the EC notes that the
trial balance for the period of investigation presented by [[XXX]] at the on-site verification showed an
amount of NOK [[XXX]] as a depreciation cost. A ccording to the EC, this information did not
identify any write-down for the closure of smolt produc tion facilities. Furthermore, the EC notes that
a write-down would not normally be reported under re gular depreciations of a company. In any case,
according to the EC, the information that part of th e regular depreciations in fact referred to write-
downs following the closure of smolt facilities was re vealed for the first time only in Norway's First
Written Submission.

636 EC, Answer to Panel Question 28, citing International Accounting Standard 14. Segment Reporting,
2005, para. 9, Exhibit EC-44.

7.477 Finally, the EC contends that the investig ating authority was forced into choosing an
allocation methodology for NRCs because the Norwegian exporting producers "deliberately
underestimated" these costs and failed to report them in their questionnaire responses. According to
the EC, the three-year averaging approach that was ultimately applied by the investigating authority to
calculate the NRCs was rational because it reflected the project accounting method applied by some
of the investigated companies. Pursuant to pr oject accounting, all costs related to a specific
generation of salmon are accumulated over the period from fertilisation of eggs to harvesting of adult
salmon. The EC asserts that this period was typically three years. Thus, the EC argues that the use of
the three-year average methodology was consistent with how the investigated companies treated the
costs of salmon production in their own accounting systems.
(b) Arguments of the Third Parties
(i) United States
7.478 Without expressing an opinion on the specific facts at issue, the United States notes that many
of the costs Norway discusses may be captured appropr iately under the allocations referred to in the
first sentence of Article 2.2.1.1 without the requireme nt of the last sentence th at they "benefit future
and/or current production".
(c) Evaluation by the Panel
7.479 As we understand it, Norway's challenge to the investigating authority's inclusion of a portion
of the NRCs incurred by [[XXX]], [[XXX]] and [[XXX ]] into their respective costs of production is
based on essentially two arguments: first, that the NRCs at issue did not amount to costs of
production; and, secondly, in respect of [[XXX]] a nd [[XXX]], the investigating authority was not
entitled to allocate these costs to th eir respective costs of production through the application of a
three-year average allocation methodology. Below, we address each of these arguments in turn.
(ii) Whether the NRCs at issue were appropriately counted as costs of production
7.480 The first basis for Norway's claim raises the question of the extent to which NRCs may be
included in an investigated party's "cost of producti on". Although both parties argue that only costs
"associated with production and sale" of the like pr oduct may be included in the calculation of "cost
of production" for the purpose of constructing norma l value, they present two fundamentally different
views on the extent to which NRCs may be included in this calculation. According to Norway, the
last sentence of Article 2.2.1.1 specifies that "s olely those NRC that benefit current or future
production can be allocated to the costs of production".
637 In other words, Norway reads
Article 2.2.1.1 as requiring investigating authoriti es to exclude from the calculation of cost of
production all NRCs which do not "benefit" current and/or future production. Thus, Norway contends
that NRCs which do not "benefit" current and/or fu ture production are not costs "associated with the
production and sale of the product under consideration". On the other hand, the EC is of the view that
the last sentence of Article 2.2.1.1 does not set th e benchmark for when NRCs may be appropriately
included in the cost of production. The EC argues that the opening words of the last sentence of
Article 2.2.1.1 recognize that it is subject to the ge neral principle that only "costs associated with
production and sale" of the like product may be used in the calculation of cost of production. Thus,
the EC contends that NRCs that do not "benefit cu rrent and/or future" production may nevertheless be
included in the cost of production "if there are proper grounds to do so".
638

638 EC, FWS, para. 621.

7.481 We start our examination of Norway's claim by considering the meaning of the term "cost of
production". The expression "cost of production" first appears in the AD Agreement in Article 2.2, in
the description of what is commonly known as cons tructed normal value. This provision does not
explain what amounts to a "cost of production"; a nd no explicit description of "cost of production"
can be found elsewhere in the AD Agreement. The di ctionary definitions of the word "cost" include
"[w]hat must be given in order to acquire, produce, or effect something; the price (to be) paid for a
thing."639 The word "production" may be understood to mean "[t]he action or an act of producing,
making, or causing something; the fact or condition of being produced". 640 Thus, the ordinary
meaning of the expression "cost of pr oduction" may be considered to be the price to be paid for the
act of producing.
7.482 The calculation of costs of production for the purpose of determining whether below-cost
sales made on the domestic market may be treated as not being made in the ordinary course of trade
and for calculating constructed normal value is addressed in Article 2.2.1.1. This provision reads:
"For the purpose of paragraph 2, costs sh all normally be calculated on the basis of
records kept by the exporter or producer under investigation, provided that such
records are in accordance with the gene rally accepted accounting principles of the
exporting country and reasonably reflect the costs associated with the production and
sale of the product under consideration. Authorities shall consider all available
evidence on the proper allocation of costs, in cluding that which is made available by
the exporter or producer in the course of the investigation provided that such
allocations have been historically utilized by the exporter or producer, in particular in
relation to establishing appropriate amor tization and depreciation periods and
allowances for capital expenditures and othe r development costs. Unless already
reflected in the cost allocations under this sub-paragraph, costs shall be adjusted
appropriately for those non-recurring items of cost which benefit future and/or current
production, or for circumstances in which co sts during the period of investigation are
affected by start-up operations.6

6 The adjustment made for start-up operations shall reflect the costs at the end of the start-up period or, if
that period extends beyond the period of investigatio n, the most recent cost s which can reasonably be
taken into account by the authorities during the investigation."
7.483 The first sentence of Article 2.2.1.1 establishes that the data sources to be privileged when
calculating an investigated party's cost of productio n shall "normally" be the records kept by that
party, provided that such records: (i) are cons istent with GAAP of the exporting country; and
(ii) reasonably reflect the costs associated with the production and sale of the product under
consideration. When the records kept by an i nvestigated party evidence these characteristics, an
investigating authority will "normally" be required to use them in the calculation of cost of
production. In our view, the fact that GAAP-cons istent records, which reasonably reflect costs
"associated with the production and sale" of the lik e product, must "normally" be used to calculate
cost of production, implies that the test for determ ining whether a cost can be used in the calculation
of "cost of production" is whether it is "associated with the production and sale" of the like product.
We understand that the Panel in Egypt – Steel Rebar came to a similar conclusion.
641

639 New Shorter Oxford English Dictionary, Clarendon Press, 1993.
640 New Shorter Oxford English Dictionary, Clarendon Press, 1993.
641 Panel Report, Egypt – Definitive Anti-Dumping Measur es on Steel Rebar from Turkey ("Egypt –
Steel Rebar"), WT/DS211/R, adopted 1 October 2002, DSR 2002:VII, 2667, paras. 7.393 and 7.422.

7.484 The second sentence of Article 2.2.1.1 addresses th e evidence that an investigating authority
must consider for the purpose of the allocation of costs . To this extent, Article 2.2.1.1 presupposes
that it may be necessary for an investigating author ity to allocate costs in order to properly establish
cost of production. No particular method of allocation is prescribed. However, investigating
authorities are required to consider "all availa ble evidence" on "proper allocation" methods,
"including that which is made available by the exporter or producer in the course of the investigation
provided that such allocations have been historically utilized". In this regard, investigating authorities
are called upon to pay "particular" attention to the allocation of "capital expenditures and ...
development costs".
7.485 Both "capital expenditures and ... development co sts" often involve large sums of money and
can be of a short-term and non-recurring nature. A typical example of "capital expenditure" is a one-
off purchase of plant and equipment assets intended fo r production activities. Similarly, one type of
"development cost" is the expense related to the development of new technology for the purpose of
launching a new product line in the future. The second sentence of Article 2.2.1.1 envisages that it
may be necessary to establish "appropriate amortizat ion and depreciation periods and allowances" for
these costs. Typically, amortization and deprecia tion for "capital expenditures and ... development
costs" involves the deduction of the cost incurre d in acquiring capital or developing a new product
over a specific period of time. Where the expendi ture relates to the acquisition of an asset, the
appropriate depreciation period will typically be the life of the asset, which may extend beyond the
period of investigation. Thus, although the full amount of certain "capital expenditures and ...
development costs" may be associated with produc tion and sale of the like product over the life of the
relevant productive assets, the second sentence of Article 2.2.1.1 recognizes that it would be
inappropriate to include the full amount of such cost s in an investigated party's cost of production.
Instead, as we read it, Article 2.2.1.1 calls for an appropriate allocation of those costs so as to
determine the extent to which they should be attr ibuted to production and sale of the like product
during the period of investigation.
7.486 We note that "capital expenditures and ... devel opment costs" are not the only costs that may
need to be appropriately allocated to productio n and sale of the like product in the period of
investigation. In our view, it is clear that Article 2.2.1.1 applies in respect of any cost, including other
NRCs, which it would be inappropria te to allocate in full to production and sale of the like product
during the period of investigation. Moreover, allo cation of costs may be n ecessary not only to spread
costs over time, but also to ensure that costs incu rred during the period of investigation are distributed
between different products. Thus, costs may need to be allocated between the production and sale of
the like product and a different product that is also produced and sold in the period of investigation.
7.487 We next turn to the last sentence of Article 2.2.1.1. This sentence establishes an obligation on
investigating authorities to make appropriate adju stments to cost of production for "non-recurring
items of cost which benefit future and/or current production" or for "circumstances in which costs
during the period of investigation are affected by st art-up operations", when not "already reflected in
the cost allocations" that are contemplated under the second sentence. The first point to note about
the last sentence is that it establishes a conditional obligation to make appropriate adjustments to cost
of production for two types of cost: NRCs "which benefit future and/or current production"; and start-
up costs. Furthermore, it is clear from the introducto ry clause of the last sente nce that this obligation
will come into play only when appropriate allocatio ns for NRCs "which benefit future and/or current
production" or start-up costs have not already been made pursuant to the second sentence of
Article 2.2.1.1. Thus, we do not understand the last sentence of Article 2.2.1.1 to define the
circumstances when NRCs (or start-up costs) may be properly "associated with production and sale"
of the like product in the period of investigation. As far as NRCs are concerned, the last sentence of
Article 2.2.1.1 merely recalls that NRCs "which be nefit future and/or current production" must be
properly accounted for either through the cost allocations envisaged under the second sentence of
Article 2.2.1.1, or an appropriate adjustment. We are therefore not convinced by Norway's argument

that Article 2.2.1.1 specifies that "solely those N RC that benefit current or future production can be
allocated to the costs of production". 642 In our view, Norway's interpretation misrepresents the
obligation that is set out in the last sentence of Article 2.2.1.1.
7.488 We recall that Norway claims that the EC acted inconsistently with Article 2.2.1.1, and as a
consequence, Articles 2.1 and 2.2 of the AD Agreemen t, because it alleges that the NRCs included by
the investigating authority in the cost of produc tion calculated for three investigated companies,
[[XXX]], [[XXX]] and [[XXX]], did not involve outlays that pay for resources which benefit current
and/or future production. However, we have found that the standard for determining whether or not
NRCs may be properly counted as part of cost of pr oduction is whether they are "associated with the
production and sale" of the like product during the pe riod of investigation. Although the extent to
which a NRC may benefit future and/or current production may be indicative of whether or not it is
associated with production and sale of the like product in the period of investigation, we do not
understand from the language of Article 2.2.1.1 that it should be considered to be determinative of this
fact. Indeed, because the notion of costs "associat ed" with production is broader than costs that
"benefit" production, it does not necessarily follo w that costs which do not "benefit" production
cannot be "associated" with production. 643 In any case, as we have al ready noted, the obligation
established under the last sentence of Article 2.2.1. 1 does not define when NRCs may be included in
cost of production, but merely recalls that wher e no cost allocation has been made for NRCs which
benefit future and/or current production, invest igating authorities must make an appropriate
adjustment. Thus, to the extent that Norway's clai m against the investigating authority's treatment of
the NRCs of [[XXX]], [[XXX]] and [[XXX]] is ba sed on the contention that Article 2.2.1.1 requires
that NRCs may only be included in the cost of production when they benefit future and/or current
production,644 we find that it is based on an incorrect interpretation of Article 2.2.1.1, and we therefore
dismiss it. Norway's claims under Articles 2.1 a nd 2.2 of the AD Agreement are either consequential
to its claim under Article 2.2.1.1 or dependent on th e same reasoning used to support that claim.
Accordingly, we find that they also cannot be substantiated.
(iii) Whether the investigating authority was entitled to calculate the NRC adjustments for
[[XXX]] and [[XXX]] on the basis of a three-year average
7.489 The second ground for Norway's challenge to the investigating authority's inclusion of the
NRCs of [[XXX]] and [[XXX]] in their respective costs of production is focused on the three-year
average cost allocation methodology used to calculate the relevant adjustments. According to
Norway, the cost allocations contemplated under Ar ticle 2.2.1.1 involve apportioning a given cost
over time in accordance with the relationship be tween the cost at issue and production activities
benefiting from those costs. In Norway's view, an allocation methodology must therefore establish a
link between the cost at issue and production in sp ecific years, something which it alleges the three-
year average NRC allocation methodology applied by the investigating authority did not do. On the
other hand, the EC argues that the three-year aver age cost allocations made by the investigating
authority were consistent with Article 2.2.1.1 b ecause they reflected the project accounting approach
used by the investigated companies to collect and report their costs of production. The EC alleges
that this accounting methodology involved accumulating costs associated with a specific generation of
salmon over a period of three years. The EC argu es that three years was the average amount of time
needed to farm a salmon from a fertilized egg. As such, it was perfectly rational for the investigating
authority to allocate NRCs on the basis of a three-year average.

643 For instance, it could be argued that an expense that adversely effects production during the period
of investigation does not "benefit" that production. Ho wever, such an expense might still be "associated" with
the same production.
644 See, e.g., Norway, FWS, paras. 803, 809-813; Norway, First Oral Statement, para. 205; Norway,
Answer to Panel Question 62.

7.490 As we have already noted, although it envisages that cost allocations may be necessary in
establishing cost of production, the second sentence of Article 2.2.1.1 does not prescribe the use of
any particular cost allocation methodology. Howe ver, in settling on a particular approach, an
investigating authority must consider "all availabl e evidence" on "proper allocation", "including that
which is made available by the exporter or producer in the course of the investigation provided that
such allocations have been historically utilized". We do not understand Norway to be arguing that the
investigating authority acted inconsistently with Article 2.2.1.1 because it failed to consider "all
available evidence" on "proper allocation". Instead , as we understand it, Norway's claim is based on
the allegation that in allocating an amount of N RC corresponding to the three-year average of the
NRCs incurred by [[XXX]] and [[XXX]] from 2002 to 2004, the investigating authority included
costs which were not "associated with the production and sale" of the like product during the period of
investigation in the companies' re spective costs of production. Norway submits that there are various
reasons for this, including the alleged lack of fact ual support for the main justifications advanced by
the EC for the investigating authority's actions, na mely, the view that the investigated companies
reported their costs on the basis of project accoun ting, and the contention that the salmon production
cycle lasts on average three years.
7.491 We agree with Norway that any allocation of cost performed for the purpose of establishing
cost of production must not result in the inclusi on of costs not "associated with the production and
sale" of the like product during the period of investiga tion. In this respect, we believe the EC to be of
the same view. Thus, the question that is before us is whether the three-year average cost allocation
methodology applied by the investigating authorit y resulted in the allocation of more than the
appropriate amount of NRCs "associated with th e production and sale" of the like product during the
period of investigation. We begi n our consideration of this question by briefly summarising the facts
surrounding the NRC adjustments applied to [[XXX]] and [[XXX]].
 Facts
7.492 In the Definitive Regulation, the investiga ting authority explained that a number of
investigated parties had taken issue with the incl usion of the full amounts of certain "extraordinary
expenses applicable to the product concerned" in their respective costs of production in the
provisional findings. These expenses related to "a number of company-specific costs, but typically
included write-downs of tangible assets, closure of farming facilities, slaughtering and processing
plants, and severance payments to employees".
645 One of the grounds upon which the investigating
authority's actions were challenged was that the ex traordinary costs – or NRCs – had allegedly not
been appropriately allocated "over the true period of ti me to which they relate, e.g., the useful life of a
processing plant when the extraordinar y expense relates to such an asset". 646 In responding to this
complaint, the investigating authority stated the following:
"It is, however, true that allocation of th e costs over a period of time would remove
any undue effect caused by the timing of the decisions of the companies to report
these costs. Ideally, all extraordinary cost s reported for each separate asset should be
allocated over the useful life of that asset to arrive at an average annual cost.
However, it is to be noted that none of the companies concerned carried out this
exercise. Instead, the Commission has deci ded to take the extraordinary costs
reported by companies in the sample during the last three years, based on the most
recently available financial statements, a nd to allocate one third of these costs to
salmon production in the IP, on the basis of turnover. Three years was considered an

645 Definitive Regulation, Recital 15.
646 Definitive Regulation, Recital 15.

appropriate time period as this is the aver age length of time that it takes to grow a
salmon from a smolt to a harvestable salmon."647
7.493 Similar comments were made in the investigati ng authority's explanation of its treatment of
NRCs in the Definitive Disclosures made to [[XXX]];
"In line with the 3 year salmon generation approach, the Commission has decided that
non-recurring costs should be assembled over a 3 years period and depreciated over
the same period.
For [[XXX]], non-recurring costs were based on the financial accounts 2002, 2003
and 2004: ...
Depreciation over 3 years of [[XXX]] million NOK leads to an adjustment of
[[XXX]] NOK per kg WFE." 648
and to [[XXX]]:

"As concerns your comments on the alloca tion of recurring extraordinary cost the
Commission services take note of your comments concerning the extraordinary costs
not being recurring costs.
Therefore, the methodology of the calculati on of these costs has been revisited. A
three year average of this cost has been app lied instead of the annual cost in order to
find a reasonable basis to take into account of this cost and in order to distribute any
non-recurring cost included in this item over a reasonable period of time. The
resulting average of the reported extraord inary cost over the years 2002, 2003 and
2004 was [[XXX]] NOK."
649
7.494 We recall that at the centre of the EC's justifi cation for the investigating authority's allocation
of the NRCs through the application of a three-y ear average is the assertion that "companies using
project accounting based on salmon generations collect their cost information themselves over such an
average period".650 We note that this apparent justification cannot be found in the explanations of the
methodology applied by the investigating authority that are set out in the Definitive Regulation or the
Definitive Disclosures to [[XXX]] and [[XXX]]. The only rationale given in the Definitive
Regulation and the Definitive Disclosures for alloca ting NRCs on the basis of a three-year average
was that it reflected what the investigating authorit y considered to be the average length of time to
grow a salmon from a smolt to a harvestable salmon or the average length of time to grow a salmon
generation.
 [[XXX]]

7.495 The EC argues that the reason why the inv estigating authority calculated [[XXX]] NRC
adjustment on the basis of a three-year averag e was because [[XXX]] reported its costs of production
on the basis of project accounting. Norway contes ts this view, and argues that in fact [[XXX]]
reported its cost of production in relation to costs incurred solely during the period of investigation.

647 Definitive Regulation, Recital 18.
648 Definitive Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-28.
649 Definitive Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-69.
650 EC, FWS, para. 692.

7.496 The EC initially asserted that [[XXX]], like other companies, was "invited" to "use weighted
average cost of production for all salmon generations that were harvested during the investigation
period".
651 However, when asked by the Panel to substantiate its assertion, the EC noted that although
the questionnaire did not explicitly require companies to report costs in this manner, "during the
preparation of the questionnaire reply, companies [were] invited to contact case handlers ... for any
further enquiries".
652 The EC argues that [[XXX]] "actively sought such contact and agreed on
following the same approach that was followed during the safeguard investigation".653
7.497 That [[XXX]] made contact with the investiga ting authority to discuss how to report cost of
production as it was preparing its reply to the questi onnaire is confirmed in the comments made to the
investigating authority's disclosure of provisional findings. These comments recalled that:
"The Commission performed safeguard inves tigations (a mini investigation) in
August to October 2004, and Fjord Seafood Norw ay was subject to this investigation.
It was formally not part of AD 487, but th e investigations were focusing on a similar
calculation of Cost of Production as in AD 487, and the inspectors later confirmed
that the two investigations (the safeguard investigation and the AD 487) were
"closely linked". ...
During December 2004 the inspectors confirmed that they wanted [[XXX]] to apply
the same methodology as applied in the calculation of COP under the safeguard
investigations, and a number of practical qu estions on how to calculate the COP, how
to present the calculation, what to specify, what legal entities to include etc were
agreed on with the inspectors, and confirmed in writing from the inspectors."
654
7.498 The EC argues that the methodology that was "agreed" between [[XXX]] and the
investigating authority was apparent from a docum ent "presented by [[XXX]] during the verification
for that investigation in October 2004..., in which it proposed that: four salmon generations should be
selected as representative and that costs should be reported for these generations". 655 This particular
document was submitted by the EC as Exhibit EC-6 8, which it named "[[XXX]] cost of production
submission in Safeguard investigation". We have reviewed this particular exhibit. It presents a series
of data relating to cost of production in table form . Part of this data relates to "rearing costs"
presented by four "Projects". The document is titled "ODY Prod.cost.[[X XX]].xls – Cost of
production", and is dated 3 January 2005. The word s "Safeguard investigation" cannot be found in
this document. Thus, it is not immediately appare nt that the document was generated for the purpose
of the safeguards investigation. Indeed, the date on the document suggests that it was prepared and
presented by [[XXX]] during the verification visit conducted in the anti-dumping investigation. In
any case, even if the same document had been presented in both the anti-dumping and safeguard
investigations, in the absence of any narrative, the information that it discloses does not, on its own,
confirm that it was intended to illustrate the accounting methodology that [[XXX]] applied in the anti-
dumping proceeding.
7.499 The EC also argues that certain statements made by [[XXX]] elsewhere in its comments on
the investigating authority's provisional findings support the view that [[XXX]] reported costs of
production on the basis of project accounting. Th e full extracts of the re levant passages of [[XXX]]
comments read as follows:

651 EC, Answer to Panel Question 12.
652 EC, Answer to Panel Question 113.
653 EC, Answer to Panel Question 113.
654 [[XXX]], Response to Provisional Findings, 27 May 2005, Exhibit NOR-110.
655 EC, Answer to Panel Question 112.

"It was agreed that the [cost of producti on] calculation should be based on the project
accounting system, where a substantial level of detail is available per site/production
entity and where a "full cost calculation" is made on all biomass (including salmon)
during production and up to the closing of the site after the sale of the fish. It was
agreed on a "pragmatic" approach on the cal culation of the harvesting costs including
using the harvesting cost for a period devia ting from the investigation period (IP), as
a representative "per kg cost" of harvest for the IP. A similar pragmatic calculation
was made for SGA costs. The extracts made from the project accounting system
were made for the investigation period directly as this was found useful for the COP
calculation, and this extract therefore re trieve data from two different accounting
years. It was verified that the project accounting was the basis for the formal
statutory accounts, which Fjord Seafood of course confirmed.
When using the project accounting system for calculation of COP the issue of
including finance costs is directly solved , as the project accounting generate finance
costs on each production facility, the part of finance cost not allocated in the project
accounting will be finance costs related to ot her assets, closed/sold plants, funding of
historical losses etc, which are not part of the project accounting system, and should
not be part of the "running production". Restructuring costs are not part of the project
accounting system, and should not be part of the cost of production."
 656
7.500 We do not understand the above statements to de monstrate that [[XXX]] reported its costs of
production for the period of investigation on the basi s of project accounting, that is, the "weighted
average cost of production for all salmon generations that were harvested during the investigation
period". Although it is clear that [[XXX]] agreed to report cost of production "based on the project
accounting system", the way that it did so was by using "extracts made from the project accounting
system" "for the investigation period" "from two different accounting years". It does not necessarily
follow that [[XXX]] reported the costs of salm on generations harversted during the period of
investigation, reflecting the costs of salmon generations accumulated over three years, as would be the
case under project accounting. In other words, the fact that [[XXX]] kept its financial accounts on the
basis of project accounting does not necessarily mean that it also reported costs of production on the
same basis.
7.501 The principles used by [[XXX]] to report its cost of production were explained in a
presentation submitted to the investigating authorit y during the on-site investigation. This
presentation was submitted by Norway as Exhibit NOR-184.
657 Although initially stating that the
investigating authority had not recei ved page five of this presentation, 658 the EC subsequently
confirmed that the entire presentation including page 5 was before the inves tigating authority during
the proceeding.659 Having reviewed the contents of this exhi bit, we believe that it supports the view
that [[XXX]] did not report cost of production on the basis of project accounting, that is, the
"weighted average cost of production for all salmo n generations that were harvested during the
investigation period". At page four of the presen tation, the calculation of the cost of production is
explained as follows:
"For calculation of cost of production the following is done: (Volume = Production in
period)
+ Stock per 30.09.04

656 [[XXX]], Response to Provisional Findings, 27 May 2005, Exhibit NOR-110.
657 Norway initially submitted page 5 of this presentation as Exhibit NOR-156.
658 EC, Answer to Panel Question 31; EC, SWS, para. 229; EC, Second Oral Statement, para. 100.
659 EC, Answer to Panel Question 112.

+ Harvested per 30.09.04
– Stock per 01.10.03
– Harvested before 01.10.03

= Produced volume, live weight
Project cost: Sum all cost that is booked on salmon projects in period.
From this we get total cost of production: Project cost / Production in period"
This calculation was explained diagrammatically on page five of presentation. We have reproduced
this diagram below:

Cost of production – principle seawater
A: Total farming cost:

7.502 As we understand the contents of the above pa ges from [[XXX]] presentation, this company's
cost of production for the period of investiga tion was established on a per kilogram basis by
calculating total cost booked in the period of investigation and dividing this by the total
volume/weight of production in that same period. The total cost was established on the basis of the
[[XXX]] salmon projects that were ongoing during th e period of investigation. We recall that
[[XXX]] expressly stated in its comments on the inve stigating authority's provisional findings that the
cost extracts from its project accounting system used to calculate the cost of production covered two

Harvesting
2002G
2003G
2004G
Growth in seawaterSmolt
Growth in seawater HarvestingSmolt
Growth in seawater Harvesting Smolt
Growth in seawaterSmolt
Growth in seawater HarvestingSmolt
Growth in seawaterSmolt
O N D J F M A M J J A S O N D J F M A M J J A S O N D J F M A M J J A S O N D J F M A M
2002 2003 2004
Principle for tracking cost of production

All cost for all active project in period (own specification) as nominator.
 2002 generation – [[XXX]] pr ojects, [[XXX]] salmon, [[XXX]] broodstock,
[[XXX]] trout
 2003 generation – [[XXX]] projects, [[XXX]] salmon, [[XXX]] broodstock
 2004 generation – [[XXX]] projects, [[XXX]] salmon
 [[XXX]] Unclosed 2000/2001 projects (for balancing total)
All production in period (salmon) as denominator.
Investigation Period

accounting years.660 It can be seen from the diagram th at these two accounting years were 2003 and
2004. Had [[XXX]] reported costs of production on a project accounting basis, the diagram shows
that it would have reported the costs of salmo n generations harvested during the period of
investigation, which would have reflected cumulated costs from three accounting periods – 2002,
2003 and 2004.
7.503 That [[XXX]] reported its costs of production on the basis of costs incurred for all active
salmon projects during the period of investigation , and not project accounting, is confirmed by the
methodology it used to derive the relevant volume of production. In this regard, [[XXX]] simply
identified the total volume of "stock" and harvested salmon at the end of the period of investigation
("30.09.04") and subtracted the volume of "stock" a nd harvested salmon that existed at the beginning
the period of investigation ("01.10.03"). Had [[XXX]] reported costs derived from project
accounting, it would have been necessary to identify the volume of production corresponding to each
of the salmon generations harvested during the period of investigation. However, this is not how the
volume of production was determined.
7.504 Thus, for all of the above reasons, we are not convinced by the EC's assertion that [[XXX]]
reported costs of production on the basis of project a ccounting. Our assessment of the facts that were
before the investigating authority that the partie s have submitted for our review indicates that
[[XXX]] did not report the "weighted average cost of production for all salmon generations that were
harvested during the investigation period". Instead , the evidence that has been presented before us
indicates that [[XXX]] reported costs of production on the basis of costs incurred during the period of
investigation in respect of active salmon projects, divided by the total volume of "stock" and
harvested salmon during the period of investigation. Accordingly, we find that the factual
underpinning of the EC's justification of the i nvestigating authority's treatment of [[XXX]] NRCs
cannot be substantiated.
7.505 In any case, we consider that even if [[XXX]] had reported its costs on the basis of project
accounting, this alone would not be enough to justif y the investigating authority's actions. As it has
been explained to us during the course of this di spute, project accounting in the Norwegian salmon
industry involves the accumulation of costs over the period it takes for a salmon farming project to be
completed. The period of time over which such costs may be collected will naturally depend upon the
duration of the salmon farming project – it may start at the moment an egg is fertilized and end with
the harvesting of adult salmon, or it may begin with juvenile salmon (smolt). Furthermore, the
duration of each project can be shortened or prolo nged, depending upon, for example, the temperature
of the water. Thus, the duration of salmon farming projects is variable. Nevertheless, according to
the EC, on average, the period from e gg to harvested salmon is 36 months.
661 Norway contests that
36 months is the average period for farming salmon from the stage of a fertilized egg.662
7.506 Irrespective of whether 36 months is the correct average length of time that it takes to farm
salmon, the investigating authority's reliance on this period of time to determine the NRC adjustment
for [[XXX]] implies that it considered that the full amount of the relevant NRCs incurred between
2002 and 2004 could be properly a llocated to, and therefore "associ ated" with, production and sale of
the like production over the same three year period. However, in our view, even if the correct average
length of time to farm salmon were three years, it does not automatically follow that it would be
appropriate to allocate all NRCs incurred during th is period to salmon farming activities taking place
over the same three year period. This is because the use of project accounting does not mean that all
NRCs incurred during the course of a salmon genera tion relate exclusively to the farming activities

660 See, paras. 7.499-7.500.
661 EC, Answers to Panel Questions 31 and 119.
662 Norway, FWS, para. 956; Norway, Comments on the EC's Answer to Panel Question 119.

that are undertaken in that period in respect of the same salmon generation. In this regard, we agree
with Norway that the logic behind such an approach could lead to unreasonable results.
7.507 Although Article 2.2.1.1 does not prescribe any particular methodology for allocating NRCs
to cost of production, the allocation method applied by an investigating authority must not result in
the calculation of a cost of production that includes costs not "associated" with production and sale of
the like product in the period of investigation.
663 It follows that in order to comply with
Article 2.2.1.1, the allocation methodology that is applied must reflect the relationship that exists
between the costs being allocated and the production activities to which they are "associated". For
instance, companies will typically account for N RCs incurred in the acquisition of fixed assets by
depreciating them over the productive life of thos e assets because of their use and relevance to
production activities over this entire period. Moreove r, in each case, the appropriate period of time
may vary depending, inter alia, upon the particular type of asset being depreciated.
7.508 The NRC allocation made by the investigati ng authority to [[XXX]] cost of production
included many different types of NRCs. These incl uded (i) the write-down in the value of biomass
due to deformity reported in [[ XXX]] 2003 audited accounts; (ii) the write-down in the value of
several production facilities including the [[XXX]] in 2003; and (iii) 24 "other items", including the
"write down of assets on the closure of production fac ilities and various consequential costs, such as
severance pay", reported in 2002 and 2003. We can find no statement in the investigating authority's
findings to explain why the full amounts of all of these varying NRCs, either individually or
collectively, should have been allocated over the life of one salmon generation, and in particular, over
[[XXX]] operations between 2002 and 2004. In this regard, we recall that the Definitive Regulation
reveals that the investigating authority recognized that its approach was not the best solution:
"Ideally, all extraordinary costs reported fo r each separate asset should be allocated
over the useful life of that asset to arrive at an average annual cost. However, it is to
be noted that none of the companies concerned carried out this exercise."664
7.509 Thus, the "ideal" solution envisaged by the inv estigating authority was to allocate the NRCs
"reported for each separate asset ... over the useful life of that asset". Because of the investigated
parties' alleged failure to carry out such an alloca tion exercise, the investigating authority decided to
apply another methodology. However, [[XXX]] di d provide the investigating authority with
information about the accounting principles it had ap plied for "significant accounting entries", which
included information about usual de preciation periods for land and buildings, plant and equipment,
fixtures and fittings, boats and farming licenses. 665 It also indicated that it treated assets as fixed
assets only when the "useful economic lifetime exceeds three years". 666 The investigating authority's
findings do not explain why this information was in appropriate and could not be used to determine
how to allocate the relevant NRCs. In any case, regardless of the relevance of [[XXX]] reported
accounting principles, we believe that it was incumben t on the investigating authority to at the very
minimum explain why it was appropriate to allocate th e relevant NRCs over a period of time that was
equivalent to what the investigating authority cons idered to be the average period of time to farm
salmon. However, we can find no such explana tion, even in general terms, anywhere in the
investigating authority's findings. Absent any such explanation, the approach undertaken by the
investigating authority fails the test that is established under Article 2.2.1.1.667

663 See, para. 7.491.
664 Definitive Regulation, Recital 18.
665 [[XXX]] Questionnaire Response, Section F-1.6, Exhibit NOR-123.
666 [[XXX]] Questionnaire Response, Section F-1.6, Exhibit NOR-123.
667 See, paras. 7.491and 7.507.

7.510 For all of the above reasons, we find that the i nvestigating authority acted inconsistently with
Article 2.2.1.1 of the AD Agreement, when it adjusted [[XXX]] cost of production for NRCs
calculated on the basis of a three-year average of NRCs incurred between 2002 and 2004. In the light
of this finding, we believe that it is not necessary, for the purpose of resolving this dispute, to decide
whether the investigating authority's treatment of [[XXX]] NRCs was also inconsistent with
Articles 2.1 and 2.2 of the AD Agreement. Therefore, on the grounds of judicial economy, we make
no findings in respect of this aspect of Norway's complaint.
 [[XXX]]

7.511 In response to a question from the Panel, the EC revealed that [[XXX]] did not in fact report
its costs of production on the basis of project accounting. 668 Rather [[XXX]] reported on the basis of
conventional accounting for the period of investigati on only. For the most part, the investigating
authority used the cost informati on as it was reported by [[XXX]], 669 and determined cost of
production on the basis of information derived fro m [[XXX]] annual accounts covering the last three
months of 2003 and the first nine months of 2004, th at is, the period of investigation. It was only
[[XXX]] NRCs that were derived fro m data taken from outside of the period of investigation. These
were based on the average of NRC amounts incu rred over the years 2002, 2003 and 2004. Thus, the
EC's initial justification of the investigating au thority's use of a three-year average allocation
methodology for NRCs (i.e., that it reflected the project accounting methods used by the investigated
parties) cannot explain the investigating authority's treatment of [[XXX]] NRCs.
7.512 As we understand it, the EC justifies the inv estigating authority's conduct in respect of
[[XXX]] by arguing that because "project accounting was the system applied to the great majority of
exports examined" and because it considered project accounting to give "the most reliable indication
of the financial performance of companies engaged in salmon production", the investigating authority
was entitled to "view" data from companies applying conventional accounting over a three year period
"where that was appropriate".
670 However, the EC has failed to specifically explain why it was
"appropriate" to allocate the three-year average of [[XXX]] NRCs to its costs of production.
7.513 The reason given by the investigating authority in [[XXX]] Definitive Disclosure for its use
of the three-year average allocation methodology was that it was considered to be "a reasonable basis
to take into account of this cost and in order to distribute any non-recurring cost included in this item
over a reasonable period of time." Although there is no mention in [[XXX]] Definitive Disclosure
that the three year period was used because the inv estigating authority considered it to be the average
period of time it takes to farm salmon, we unders tand from the Definitive Regulation that the three
year period was chosen for this reason. This suggests that the investigating authority chose to allocate
[[XXX]] NRCs on the basis of a three-year average in an effort to reflect a result that it perceived
could be obtained for these costs through project acc ounting. However, we note that the EC does not
argue that [[XXX]] annual accounts were "i mplicitly ... based on the project accounting
methodology", as it does for [[XXX]] and [[XXX]]. 671 Indeed, the EC explicitly recognizes that
[[XXX]] annual accounts "did not incor porate the project accounting approach". 672 T h u s , t h e
investigating authority accepted that all of [[XXX]] costs, but for NRCs, could be established on the
basis of the conventional accounting records provided by [[XXX]]. However, when it came to NRCs,

668 EC, Answer to Panel Question 111.
669 EC, Answer to Panel Question 111.
670 EC, Answer to Panel Question 111. Norway c ontests that "project accounting was the system
applied to the great majority of exports examined". For the present purposes, we believe it is not necessary for
us to come a position on whether Norway is correct. But we note that to the extent that we have already found
that [[XXX]] did not report its costs on the basis of project accounting, the EC's argument is weakened.
671 EC, Answer to Panel Question 117(a) and (b).
672 EC, Answer to Panel Question 117(c).

the investigating authority rejected what was re ported in the conventional accounts, and chose to
pursue an allocation methodology intended to reflect project accounting.
673
7.514 We recall that in order to comply with Article 2.2.1.1, the allocation methodology that is
applied by an investigating authority to determine co st of production must reflect the relationship that
exists between the costs being allocated and the pro duction activities to which they are "associated".
In the present case, the NRCs that were averaged and included by the inv estigating authority in
[[XXX]] cost of production were write-downs in th e value of certain equity investments made by
[[XXX]] in other companies, including companies that were not involved in the production and sale
of salmon. We can see nothing inherent in these NRCs to suggest that it would be appropriate to
allocate them over a period of time equivalent to the average duration of a salmon farming project.
Therefore, it is not immediately apparent to us that the full amount of NRCs allocated by the
investigating authority to [[XXX]] cost of prod uction was "associated" with salmon farming activities
over a period of exactly three years.
7.515 In explaining its findings in respect of its treatment of NRCs, the investigating authority
stated only that "[t]hree years was considered an appropriate time period as this is the average length
of time that it takes to grow a salmon from a smolt to a harvestable salmon." 674 This statement does
not address the extent of any relationship betw een the allocated costs and [[XXX]] production
activities. Notably, it provides no insight into why such costs should be allocated over the three-year
period. Neither has the EC, in its response to Norway's claims, specifically explained why it was
appropriate to allocate [[XXX]] NRCs on the basis of what it alleges was the average period of time
needed to farm salmon. In the absence of any explanation of why it was appropriate to allocate the
NRCs incurred by [[XXX]] in the years 2002 to 2004 over the same three years, we believe that the
investigating authority's actions lacked an appropriate factual basis. The lack of any such explanation
is particularly telling in the present case, because, as we have already noted, the investigating
authority was prepared to accept all other costs used in the calculation of [[XXX]] cost of production
from information reported through the application of conventional accounting methods. It was only in
respect of NRCs that the investigating authority considered that the data submitted by [[XXX]] on the
basis of conventional accounting was inappropriate. A ccordingly, we find that in choosing to allocate
the three-year average of the NRCs incurred by [[ XXX]] in the years 2002 to 2004 to its cost of
production for the period of investigation, the i nvestigating authority acted inconsistently with
Article 2.2.1.1 of the AD Agreement.
7.516 In the light of this finding, we do not believe it is necessary, for the purpose of resolving this
dispute, to decide whether the investigating au thority's treatment of [[XXX]] NRCs was also
inconsistent with Articles 2.1 and 2.2 of the AD Ag reement. Therefore, on the grounds of judicial
economy, we make no findings in respect of this aspect of Norway's complaint.

673 We understand this to be the case also from the EC's Answer to Panel Question 119, where it states:
"The 36 month period was not applied to the companies that were applying project accounting. The accounts of
such companied already reflected the actual growing periods of the salmon harvested during the investigation
period, whether these periods were more or less than or equal to 36 months".
674 Definitive Regulation, Recital 18.

2. Alleged Inconsistency of the EC's Treatment of Finance Costs With Article 2.2 of the
AD Agreement
(a) Arguments of the Parties
(i) Norway
7.517 Norway claims that the investigating authority acted inconsistently with Article 2.2 of the
AD Agreement when, in establishing the constructed normal values of three investigated companies,
[[XXX]], [[XXX]] and [[XXX]], it allegedly adjusted their reported finance costs in a manner that
inappropriately inflated each company's cost of pr oduction. According to Norway, the investigating
authority's adjustments resulted in the inclusion of finance costs that were not "associated" with
production and sale of salmon during the period of inv estigation because: (i) for all three companies,
they represented the three-year average of the finan ce costs incurred by the i nvestigated companies in
preceding years instead of the actual finance costs in curred during the period of investigation; and (ii)
in respect of [[XXX]] only, the finance cost adjustment included the write-down in the value of shares
held by [[XXX]] in another company that was reported in [[XXX]] accounts in 2002, which Norway
argues was not a finance cost but an investment loss.
7.518 Norway argues that by relying on a three-year average of the companies' finance costs, the
investigating authority determined the average costs associated with funding production and sale
during that entire three-year period, and not the finance costs associated with production and sale
activities in the period of investigation. In this regard, Norway contends that the average of the
finance costs incurred by a compan y over a three-year period does not provide an objective basis for
making conclusions about finance costs in the period of investigation. Furthermore, because of the
variation in the level interest rates between 2001 and 2004, Norway argues that the end-result of the
investigating authority's approach was to signifi cantly increase the finance costs of the relevant
companies. Norway also alleg es that the EC applied the methodology inconsistently as between
investigated companies and in respect of the years used to determine the relevant finance costs. In the
case of [[XXX]], the three-year period was 2001 to 2003; and, in the case of [[XXX]] and [[XXX]],
the three-year period was 2002 to 2004. Finance costs were derived on the basis of a three-year
average for no other companies.
7.519 Norway notes that, in calculating the three-y ear average for [[XXX]], the EC included among
the finance costs, a loss of NOK [[XXX]] million th at the [[XXX]] incurred in 2002 on the write-
down of shares held in [[XXX]], a whitefish farming and processing company. Norway claims that
this loss should have been exclude d from the calculation of finance co sts because it is an investment
loss, not a finance cost arising from payments made by the [[XXX]] to service debt related to its own
production of salmon. In addition, Norway ar gues that in its view, losses incurred by salmon
producers on investments in other companies reflect a decline in the equity position of the investor
company, but do not impact the production costs of salmon.
7.520 Thus, for all of the above reasons, Norway claims that the adjustment made by the
investigating authority to the finance costs reported by [[XXX]], [[XXX]] and [[XXX]] resulted in the
establishment of a cost of production and construc ted normal value that was inconsistent with
Article 2.2 of the AD Agreement.
(ii) European Communities
7.521 The EC argues that the investigating authority' s calculation of the finance costs of [[XXX]],
[[XXX]] and [[XXX]] on the basis of a three-year av erage was consistent with Article 2.2 of the AD
Agreement because it reflected the project accoun ting practice that was normally followed by these
companies in their current operations.

7.522 According to the EC, [[XXX]] and [[XXX]] did not report figures to the investigating
authority using project accounting. Rather, the EC asserts that both companies completed the
questionnaire applying an "alternative approach" using adjusted data for the period of investigation.
675
The investigating authority rejected the reported fi gures because of irreconcilable differences with the
annual accounts, and resorted to establishing all bu t the finance costs for these companies on the basis
of their annual accounts and trial balances pertaining to the relevant periods in 2003 and 2004. In the
EC's view, these annual accounts were implicitly b ased on project accounting. Thus, the approach
taken by the investigating authority to calculate fi nance costs on the basis of a three-year average was
justified.
7.523 The EC advances a similar justification in resp ect of the investigati ng authority's calculation
of [[XXX]] finance cost, with the only difference being that, according to the EC, [[XXX]] initially
reported costs of production on the basis of project accounting. When the reported cost figures were
rejected by the investigating authority, it then resorted to annual accounts covering the period of
investigation, which the EC cont ends were based on project accountin g. Reflecting this approach,
finance cost was determined on the basis of a three-year average.
7.524 Finally, the EC argues that the final figures u sed to calculate [[XXX]] finance costs did not
take into account the write-off value of the shares held by [[XXX]] in [[XXX]], and as such, that there
is no factual basis to Norway's claim.
(b) Evaluation by the Panel
7.525 As a preliminary matter, we recall that we have already found that the investigating
authority's calculation of [[XXX]] finance costs on th e basis of "facts available" was inconsistent with
Article 6.8 and paragraph 3 of Annex II of the AD Agreement. 676 In particular, we have concluded
that the conditions for disregarding the finance cost data submitted by [[XXX ]] in its questionnaire
reply and resorting to "facts available" in the form of a three-year average of the Norwegian Central
Bank's interest rates and [[XXX]] own [[XXX]] over the period 2001 to 2003, were not properly
established. In this light, we believe that it is not ne cessary, in order to resolve this dispute, for us to
decide whether the investigating authority's calculation of [[XXX]] finance costs was also inconsistent
with Article 2.2 of the AD Agreement. Accordingly, on the grounds of judicial economy, we make no
findings in respect of Norway's claim that the i nvestigating authority acted inconsistently with
Article 2.2 of the AD Agreement when it calculated [[XXX]] finance costs through the application of
a three-year average of finance costs incurred be tween 2001 and 2003. Thus, in the sections that
follow, the focus of our evaluation is on Norway's claims in respect of [[XXX]] and [[XXX]].
7.526 Norway argues that finance costs are recurring cost s associated with funding debt that is used
as part of the working capital invested in production and sale of a product. In its view, only finance
costs incurred during the period of investigation can be "associated" with production and sale of
salmon in the period of investigation. Thus, accordi ng to Norway, to the extent that any finance costs
incurred outside of the period of investigation ar e taken into account in establishing the cost of
production used to construct normal value for the peri od of investigation, reliance on that constructed
normal value will be inconsistent with Article 2.2 of the AD Ag reement. In essence, the EC's
justification for calculating the relevant companies' finance costs on the basis of a three-year average
is the same as its justification fo r using a three-year average allocation methodology to derive certain
NRCs,
677 namely that it reflected the project accoun ting practice that was normally used by the
investigated companies and implicitly incorporated in the annual accounts used by the investigating

675 EC, Answer to Panel Question 111.
676 See, paras. 7.375-7.386.
677 See, paras. 7.477 and 7.489.

authority to determine the vast majority of the cost elements used in the calculation of the individual
companies' costs of production.
7.527 We begin our evaluation of Norway's claim by reviewing the text of Article 2.2, which reads:
"When there are no sales of the like product in the ordinary course of trade in the
domestic market of the exporting country or when, because of the particular market
situation or the low volume of the sales in the domestic market of the exporting
country, such sales do not permit a proper comparison, the margin of dumping shall
be determined by comparison with a comparable price of the like product when
exported to an appropriate third country, pr ovided that this price is representative, or
with the cost of production in the country of origin plus a reasonable amount for
administrative, selling and general costs and for profits."
678
7.528 Article 2.2 identifies the circumstances when an investigating authority may be entitled to
determine the margin of dumping through a comparis on between export price and: (i) the export price
of the like product exported to a third country ("a comparable price of the like product when exported
to an appropriate third country, provided that this price is representative"); or (ii) constructed normal
value ("the cost of production in the country of or igin plus a reasonable amount for administrative,
selling and general costs and profits") . As we have already observed, a cost may be used to calculate
"cost of production" for the purpose of establishing c onstructed normal value wh en it is "associated"
with production and sale of the like produc t during the period of investigation.
679 It follows that a
comparison between export price and a constructed normal value that is derived from a "cost of
production" calculated on the basis of costs that are not "associated" with production and sale of the
like product during the period of investigation will be inconsistent with Article 2.2.
7.529 We recall that the practice of project accoun ting involves the accumulation of costs over the
period it takes for a salmon farming project to be co mpleted, typically lasting from fertilized egg to
the harvest of adult salmon. Where farming activities take three years, as the EC asserts is the case on
average in the Norwegian salmon industry, the co sts accumulated through project accounting will be
"associated" with the salmon harvested at the end of that three year period. Thus, it would be entirely
accurate, in our view, to establish the "cost of production" of salmon harvested during the period of
investigation on the basis of costs properly cap tured through project accounting. We do not
understand the parties to disagree with this conclusion. However, the parties' views diverge in respect
of the extent to which the investigating authority was entitled to calculate finance costs on the basis of
a three-year average. Whereas Norway considers th at there was no rational basis for the investigating
authority to proceed in this manner, the EC argu es that the practice of three-year project accounting
normally pursued by the investigated parties justifie d the investigating authority's three-year average
finance cost calculation methodology. Before turning to address the merits of the parties' arguments,
we briefly summarize the information that can be found in the individual company disclosures and
published determinations about the investigating authority's determination of the finance costs of
[[XXX]] and [[XXX]].
(ii) Facts
7.530 The Definitive Disclosures to [[XXX]] and [[XX X]] reveal that the investigating authority
rejected the two companies' reported finance cost s and replaced these with figures determined on the
basis of data relating to the three years from 2002 to 2004. In particular, for both companies, the
investigating authority first totalled finance expens es at the group-wide level for the years 2002 to
2004. It then divided this figure by the total group-wide turnover for the same period, in this way

678 Footnote omitted.
679 See, para. 7.483.

arriving at an average finance ratio at the group le vel, again for the period 2002 to 2004. This ratio
was then multiplied by each investig ated company's turnover during the period of investigation. The
resulting amount was the finance cost used by the investigating authority for the purpose of
calculating cost of production and constructed normal value.
680
7.531 The investigating authority explained its determ ination of both companies' finance costs on
essentially the same terms:
"Reference is made to paragraph (20) of the general disclosure. In the case of your
company, financial expenses incurred in the years 2002 to 2004 by the group
company were accordingly allocated to the salmon cost of production of the IP."
681
7.532 Paragraph 20 of the General Disclosure Docume nt related to the investigating authority's
findings in respect of the write-down of licenses and financial expenses. It reads as follows:
"For these reasons, the Commission confirms that these write-downs relate to
expenses that are incurred and must be borne by the companies concerned. It is
further confirmed that these costs should be attributed to the prime business activities
including salmon farming, thus the claim is rejected. As with extraordinary expenses,
it was also considered appropriate to have one third of all costs incurred by the
relevant companies in the last three years allocated to salmon production, on the basis
of turnover."
682
7.533 The Definitive Regulation provides no additional insight into the investigating authority's
calculation of the finance costs of [[XXX]] and [[XXX]].
(iii) Whether the investigating authority was entitled to calculate finance costs on the basis of a
three-year average
7.534 The EC explains that initially, both [[XXX]] a nd [[XXX]] reported their costs of production
using an "alternative approach" – an approach that followed neither project accounting or
conventional accounting. 683 According to the EC, the investigating authority rejected the figures
reported in their questionnaire replies "because of irreconcilable differences with the annual
accounts".684 Consequently, the investigating author ity resorted to using [[XXX]] and [[XXX]]
annual accounts, which it argues were "implic itly ... based on the project accounting
methodology".685 In making this statement, we understand the EC to be of the view that the annual
accounts reflected costs incurred in farming different generations of salmon, from fertilized egg to
harvested salmon. Because, in the view of the EC, th ree years is the average time it takes to farm one
generation of salmon, it argues that the establishmen t of finance costs through the application of a

680 Definitive Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-45; Definitive Disclosure to
[[XXX]], 28 October 2005, Exhibit NOR-54. See also, [[XXX]] Worksheet, prepared by Norway, Exhibit
NOR-130.
681 Definitive Disclosure to [[XXX]], 28 October 2005, Exhibit NOR-45; Definitive Disclosure to
[[XXX]], 28 October 2005, Exhibit NOR-54. The stat ement in [[XXX]] disclosure identifies the [[XXX]] as
[[XXX]]. No similar identification of the name of th e [[XXX]] is made in Definitive Disclosure made to
[[XXX]].
682 General Disclosure Document, 28 October 2005, Exhibit NOR-67.
683 EC, Answer to Panel Question 111. See also, Exhibit EC-37, where the EC indicates that both
companies used "an alternative approach to allocate costs to the IP", reporting all costs ("eggs/smolt, feed, direct
labour, vaccine/medications, other farming costs, harves ting costs, processing costs, selling expenses, general
and administrative expenses, financial expenses, bad debts, NRC") on this basis.
684 EC, Answer to Panel Question 117(a); and Exhibit EC-37.
685 EC, Answer to Panel Question 117(a).

three-year average was rational, and produced a "r esult in all likelihood ... similar to the one that
would have been found had reporte d costs been properly based on the companies' project accounting
system and not been made on pu rpose for the investigation". 686 In other words, as we understand it,
the EC argues that the investigating authority was ju stified in calculating the companies' finance costs
on the basis of a three-year average because this refl ected the nature of the figures the investigating
authority had actually used to derive the other co sts used in its determination of the cost of
production.
7.535 Norway considers that the investigating author ity was not entitled to determine finance costs
on the basis of a three-year average because both [[XXX]] and [[XXX]] did not report their costs on
the basis of project accounting. That is, accordi ng to Norway, [[XXX]] and [[XXX]] did not report
the costs associated with the quantity of salmon harvested during the period of investigation. Instead,
both companies reported costs associated with all salmon production activities undertaken during the
period of investigation, including salmon growth and harvesting. As such, the relevant finance costs
for the calculation of their costs of production we re those reported by the companies in their
questionnaire replies. Moreover, Norway argues that the investigating authority did not reject the cost
of production figures reported by [[XXX ]] and [[XXX]]. It contends that the EC used almost all
reported data, rejecting only very few figures for which it made adjustments that Norway contests. To
this end, Norway has presented a number of tables derived from information contained in the
investigated parties' questionnaire replies and i ndividual company disclosures to substantiate its
assertions.
687 We have closely reviewed these tables a nd the information on which they are based and
agree with Norway that the investigating author ity did not reject the cost of production figures
reported by [[XXX]] and [[XXX]].
 [[XXX]]

7.536 [[XXX]] reported costs of production are set out in an Excel worksheet titled [[XXX]].
Norway submitted this worksheet as Exhibit NOR-132. The investigating authority's calculation of
[[XXX]] cost of production can be found in Annex 3 of its Definitive Disclosure to [[XXX]], Exhibit
NOR-45. The final cost of production per kilogram determined by the investigating authority is set
out in the Excel worksheet titled [[XXX]], Annex 3, and is further relied upon in the worksheet titled
"COP". It can be seen from the former of the two worksheets, that the investigating authority used 16
of the 18 cost of production figures reported by [[XXX]]. The two cost elements not relied upon
relate to the investigating authority's adjustment s for smolt costs and finance costs, which Norway
contests.688 Thus, the facts as they have been presented to us in this dispute do not support the EC's
assertion that the investigating authority rejected [[ XXX]] reported costs, and used another basis to
derive its costs of production. Rather, the facts show that the investigating authority based its
determination of [[XXX]] cost of production on all but two figures reported in [[XXX]] questionnaire
response.
7.537 Moreover, the investigating authority's Definitiv e Disclosure also indicates that it did not rely
upon only the quantity of salmon harvested during the period of investigation for the purpose of
arriving at [[XXX]] per kilogram cost of production. The "COP" worksheet reveals that the
investigating authority identified an amount of [[XXX]] kilograms as the "total quantity produced
during the IP". This figure was derived from an amount of [[XXX]] kilograms, which had been
reported by [[XXX]] and adjusted downwards by on e per cent by the investigating authority. The
amount of [[XXX]] kilograms can be found in the [[XXX]] worksheet, which shows that it is derived
from the quantity of salmon harvested, plus "closing stock" minus "opening stock". We understand

686 EC, Answer to Panel Question 117(b).
687 Norway, Comments on EC Answer to Panel Question 117(a).
688 Norway's claims in respect of the investigating authority's adjustments to reported smolt costs are
addressed below at paras. 7.545-7.572.

that the reference to "stock" is a reference to "biomass", that is, salmon that are still in the growing
stage and not yet ready to be harvested. Thus, the figure used for total production in the period of
investigation was the sum total of harvested and non- harvested salmon in the period of investigation.
In our view, this evidence supports the conclusion that: (i) [[XXX]] did not report its per kilogram
costs of production on the basis of project accounting, but rather on the basis of all costs relating to its
salmon farming activities over the period of investiga tion; and (ii) that the investigating authority
calculated all but two of the costs used for the pur pose of arriving at [[XXX]] per kilogram cost of
production on the basis of information from the period of investigation.
 [[XXX]]

7.538 The cost of production figures reported by [[XXX ]] in section F-2-5 of its questionnaire
response are set out in Exhibit NOR-133, page 2. This worksheet shows that [[XXX]] reported costs
for the period of investigation on the basis of costs incurred in the years 2003 and 2004. The
investigating authority's calculation of [[XXX]] co st of production is set out in the Definitive
Disclosure, Exhibit NOR-54, Annex 3. The final co st of production per kilogram determined by the
investigating authority is revealed in the Excel worksheet that is titled "COP". This amount is derived
from another worksheet in the same Annex with the tit le [[XXX]]. All but three of the figures used in
worksheet [[XXX]] to derive the per kilogram cost of production amount that is referred to in the
worksheet titled "COP" are exactly the same as those reported by [[XXX]]. The only figures that
differ are those relating to the contested adjustments made for finance costs, depreciation and the cost
of smolt, which Norway contests.
689 Thus, as Norway alleges, 19 of 22 cost elements used by the
investigating authority to determine [[XXX]] per kilogram cost of production came directly from
[[XXX]] questionnaire response. We can therefore see no factual basis for the EC's assertion that the
investigating authority rejected the figures re ported in [[XXX]] questionnaire reply "because of
irreconcilable differences with the annual accounts".
690
7.539 As with [[XXX]], the Definitive Disclosure indicates that the investigating authority did not
rely upon only the quantity of salmon harvested during the period of investigation for the purpose of
arriving at [[XXX]] per kilogram cost of produ ction. [[XXX]] reported its total quantity of
production for the period of investigating using th e same methodology applied by [[XXX]]. The
[[XXX]] worksheet reveals that total production w as derived from adding "closing biomass" to the
total quantity of salmon "harvested during the peri od" and detracting "opening biomass". Thus, the
figure reported for total production in the period of investigation was the sum total of [[XXX]]
harvested and non-harvested salmon in the period of investigation. It can be seen from the same
worksheet that the investigating authority used this figure as the basis for its calculations. Once again,
we find that the evidence presented in the Defini tive Disclosure supports the conclusion that: (i)
[[XXX]] did not report its per kilogram costs of production on the basis of project accounting, but
rather on the basis of an all costs relating to its salmon farming activities over the period of
investigation; and (ii) that the investigating author ity calculated all but three of the costs used for the
purpose of arriving at [[XXX]] per kilogram cost of production on the basis of information from the
period of investigation.
7.540 We recall that the EC's response to Norway's complaint is premised upon two key factual
assertions: (i) that the investigating authority did not rely upon the data submitted by [[XXX]] and
[[XXX]] because it could not be reconciled with thei r annual accounts; and (ii) that after rejecting the
reported information, the investigating authorit y established each company's costs of production on
the basis of information drawn from their annual accounts, which the EC argues implicitly
incorporated project accounting. We can find no ev idence to substantiate these assertions. Indeed, as

689 Norway's claims in respect of the investigating authority's treatment of NRCs and adjustments to
reported smolt costs are addressed, respectively, above at paras. 7.463-7.516, and below at paras. 7.545-7.572
690 EC, Response to Panel Question 117(a); and Exhibit EC-37.

we have explained above, the facts we have reviewed indicate that the opposite to what the EC argues
took place, actually occurred during the investigation. The investigating authority accepted almost all
of the cost information reported by [[XXX]] and [[ XXX]], and thereby based its determination of the
companies' costs of production on data that was almost entirely reported by means of an "alternative
approach" – an approach that according to the EC reflected neither conventional or project
accounting. In this light, the EC's contention th at the investigating authority was justified in
calculating the companies' finance costs on the basis of a three-year average because this reflected the
nature of the figures the investigating authority ha d relied upon to derive the other costs used in its
determination of the cost of produc tion cannot be substantiated. In other words, there is no factual
basis to support the argument the EC has advanced to demonstrate that the finance costs calculated for
[[XXX]] and [[XXX]] were "associated" with prod uction and sale of the like product during the
period of investigation.
7.541 Norway argues that the average of the finance costs incurred by a company over a three-year
period does not provide an objective basis for maki ng conclusions about finance costs "associated"
with production and sale of the like product in the period of investigation. In our view, whether this is
the case will very much depend upon the factual circ umstances, and in particular, the methodology
used to collect costs used in the calculation of cost of production. Where costs of production are
derived through project accounting, and each project typically runs over three years, it seems to us
that the determination of finance costs (or any other recurring cost) on the basis of a three-year
average might well be an objective basis to approximate costs that would otherwise be reported
through project accounting.
691 However, where costs of production are not derived through project
accounting, the use of a three-year average to de termine one element of those recurring costs could
have distortive effects. This is particularly so when, as in the presen t case, the interest rates
associated with funding debt in the preceding years are different from those existing in the period of
investigation. In our view, in order to use a cost element derived on the basis of a three-year average
in circumstances where almost all other cost elements used in the calculation of cost of production are
determined through the use of a methodology that do es not even implicitly reflect three-year project
accounting, an investigating author ity must properly explain its deci sion. The required "association"
between a recurring cost derived on the basis of a three-year average and production of the like
product in the period of investigation cannot be imp lied when the cost of production is determined on
the basis of information relating to production activities in the period of investigation only.
7.542 We have found that almost all of the cost elem ents used in the calculation of the respective
costs of production of [[XXX]] and [[XXX]] were determined on the basis of an "alternative
approach" and therefore did not reflect three-year project accounting. Thus, for almost all relevant
cost elements, the investigating authority was satisfi ed that data pertaining to the cost of harvesting
and non-harvesting activities that took place solely w ithin the period of investigation were properly
"associated" with production and sale of the like produc t during the period of investigation. As such,
we believe it was incumbent upon the investigating authority to explain why, in the light of its
rejection of the companies' reported finance costs, it was appropriate to calculate finance costs on the
basis of a three-year average. The required " association" between finance costs calculated on the
basis of a three-year average and production of th e like product in the period of investigation could
not simply be implied. In this regard, we note that the only specific statement made by the
investigating authority in respect of the met hodology applied to determine [[XXX]] and [[XXX]]
finance costs was that it was considered "appropriate to have one third of [the finance] costs incurred
by the relevant companies in the last three year s allocated to salmon production, on the basis of
turnover". This does not explain how, in the light of the approach taken to determine almost all other

691 However, we do not consider this to be the case in respect of non-recurring costs. As non-recurring
costs, these must be appropriately a llocated over a period of time that may be different from the lifetime of a
"project". See, paras. 7.506-7.507.

cost elements, the three-year av erage finance costs were "associated" with production of the like
product during the period of investigation.
7.543 Thus, for all of the above reasons, we find that there is no factual basis to support the EC's
contention that the three-year average finance costs determined for [[XXX]] and [[XXX]] were
"associated" with the production and sale of the like product during the period of investigation. To
the extent that the investigating authority used these costs in the calculation of [[XXX]] and [[XXX]]
"costs of production", it failed to properly est ablish the constructed normal values used for the
purpose of determining the existence of dumping. Accordingly, we find that the investigating
authority acted inconsistently with Article 2.2 of the AD Agreement.
7.544 We note that Norway also claims that the inv estigating authority acted inconsistently with
Article 2.2 when it counted in the total amount of [[XXX]] finance costs for the period 2002 to 2004,
a loss of NOK [[XXX]] million that the [[XXX]] incurred in 2002 on the write-down of shares held in
[[XXX]].
692 Because we have found that the investiga ting authority erred in calculating [[XXX]]
finance cost on the basis of the average of the fi nance costs incurred from 2002 to 2004, we consider
that it is not necessary, for the purpose of resolv ing this dispute, to also address Norway's second
complaint against the investigating authority's calcu lation of [[XXX]] finance costs. In our view,
findings in respect of this element of Norway's complaint would do little to enhance the ability of the
DSB to make sufficiently precise recommendations and rulings in this dispute. Accordingly, on the
grounds of judicial economy, we make no findings in respect of Norway's claim that the investigating
authority acted inconsistently with Article 2.2 of the AD Agreement when it included among the
finance costs used to derive the three-year average of [[XXX]] fina nce costs, a loss of NOK [[XXX]]
million that the [[XXX]] incurred in 2002 on the write-down of shares held in [[XXX]].
3. Alleged Inconsistency of the EC's Treatment of Smolt Costs With Articles 2.2 and
2.2.1.1 of the AD Agreement
(a) Arguments of the Parties
(i) Norway
7.545 Norway claims that the investigating authorit y acted inconsistently with Articles 2.2 and
2.2.1.1 of the AD Agreement when it ma de adjustments to the reported smolt 693 costs of three
investigated companies, [[XXX]], [[XXX]] and [[XXX] ], resulting in the inclusion of an amount of
smolt costs in the calculation of the companies' respective costs of production that was not
"associated" with production and sale of salmon during the period of investigation.
7.546 Norway argues that the investigating authorit y treated all smolt costs incurred by [[XXX]]
and [[XXX]] as if related to the production of salmon in the period of investigation, when in fact they
were related to both production during the period of investigation and production in the period
immediately after the period of investigation. Norway submits that both [[XXX]] and [[XXX]] made
documented submissions requesting the investigating authority to allocate their respective smolt costs
to their costs of production in proportion to the salmon produced and sold during the period of
investigation. However, according to Norway, the investigating authority failed to properly consider
the two companies' representations, and summari ly dismissed the proposed allocation methods
because of the need for consistency in treatment betw een different producers. Norway argues that
the costs should have been allocated to the produ cers' costs of production in proportion to the salmon
produced and sold during the period of investigation. The investigating authority's failure to do so

692 See, para. 7.519.
693 Norway describes smolt as "juvenile salmon that take approximately 9 to 16 months to develop into

inflated the companies' costs of production by NOK [[XXX]] for [[XXX]] and NOK [[XXX]] for
[[XXX]]. Thus, Norway claims that the investig ating authority's actions were inconsistent with
Articles 2.2.1.1 and 2.2.
7.547 In respect of [[XXX]], Norway submits that the investigating authority improperly included in
its cost of production: (i) an amount of NOK [[XXX]] million, representing the entire cost of smolt
purchased in the last month of the period of inves tigation, which was not harvested until after the end
of the period of investigation; and (ii) the cost of smolt sold to unrelated customers at arm's length
prices during the period of investigation wit hout deducting the revenue of NOK [[XXX]] million
earned from those sales. Norway argues that [[ XXX]] submitted substantiated requests for the
investigating authority to exclude these amounts from its cost of production on various occasions.
However, according to Norway, [[XXX]] submissions were rejected because the relevant information
had not been presented at the time of the on-the-spot investigation. Norway contends that the inability
to verify these costs on-the-spot lay with the investigating authority, and not [[XXX]]. Thus, Norway
argues that the investigating authority's failure to accept the requested adju stments resulted in the
inclusion of costs in [[XXX]] cost of production that were not "associated" with the production and
sale of salmon during the period of investigation. The investigating authority's actions were therefore
inconsistent with Article 2.2.
(ii) European Communities
7.548 The EC argues that there is no factual basis to Norway's claims in respect of [[XXX]] and
[[XXX]] because the investigating authority reme died the matters raised by Norway between
Definitive Disclosure and the Definitive Regulation. Th e EC argues that this is evidenced by the fact
that the margins of dumping determined for these co mpanies in the Definitive Regulation were lower
than those contained in the Definitive Disclosure document.
7.549 As regards [[XXX]], the EC asserts that the appr oach taken by the investigating authority to
determining smolt costs was affected by [[XXX]] failu re to properly report its costs according to the
project accounting methodology that it was supposed to have implemented. According to the EC, a
valid project accounting methodology would have properl y dealt with the two cost items at issue.
However, the EC argues that [[XXX]] badly implemented the project accounting methodology.
Therefore, the investigating authority had to use annual accounts to determine smolt costs, and these
did not show that the smolt had been bought in the last month of the period of investigation, or that
the alleged sale of smolt had actually taken place. For this reason, the EC asserts that the
investigating authority could not have taken the a pproach advocated by [[XXX]] in respect of smolt
costs, because although valid under the project accoun ting methodology, it could not be matched with
an approach to calculating costs on the basis of annual accounts.
(b) Evaluation by the Panel
(i) [[XXX]] and [[XXX]]
7.550 We begin our evaluation of Norway's claims by first addressing the investigating authority's
calculation of the smolt costs used in the determin ation of [[XXX]] and [[XXX]] cost of production.
The EC argues that there is no factual basis to Norway's claims because it asserts that the
investigating authority decided, between the st ages of Definitive Disclosure and adoption of the
Definitive Regulation, that it was appropriate to accept the adjustments requested by the two
companies in respect of smolt costs.
694 Thus, in the view of the EC, the companies' final margins of
dumping correctly excluded the relevant smolt costs fr om their cost of production. The EC explains
the background to the investigating authority's decision in the following terms:

694 EC, Answer to Panel Question 125.

"In both cases, the companies had argued in their comments on disclosure and in
hearings that certain adjustments should be made to the costs actually incurred during
the investigation period. Pursuant to th e hearings that took place after definitive
disclosures, the investigating authoritie s accepted the claim on smolt quantities and
costs and in the definitive Regulation correspondingly reduced the margins of
dumping. In the case of [[XXX]] an a dditional correction was made regarding
processing costs in order to remove a clerical error pointed out by the company."
695
7.551 This is the only defence raised by the EC to Norway's claims in respect of these two
companies. The EC does not, in the alternative, contest Norway's claim that the inclusion of the
relevant smolt costs in the two companies' costs of production would be inconsistent with Articles 2.2
and 2.2.1.1 of the AD Agreement. Furt hermore, as we have noted elsewhere, 696 the EC agrees with
Norway that pursuant to Articles 2.2 and 2.2.1.1, only costs "associated" with production and sale of
the like product during the period of investigation may be included in the calculation of cost of
production. There is therefore no dispute between the parties as to whether the smolt costs were
"associated" with production and sale of salmon duri ng the period of investig ation. Thus, the only
question that is before us is whether the EC's as sertions can be substantiated by the facts of the
investigation.
7.552 Norway has consistently alleged that [[XX X]] and [[XXX]] were not provided with any
evidence indicating that their claims in respect of smolt costs had been accepted. On the other hand,
the EC has explained that "Norway should already possess all the information necessary to verify the
correctness of the investigating authorities' statemen t, because the relevant data were disclosed to the
companies".697 When specifically asked to substantia te its factual assertions on the basis of
"information and evidence that was before the inve stigating authority during the investigation", the
EC responded by making the following statement:
"The evidence of the EC authorities' decision is apparent in the margins of dumping
determined for the two companies in the de finitive Regulation, which are lower than
those announced in the definitive disclosure."698
In the same reply, the EC also referred to the two companies' responses to the Definitive Disclosures.
7.553 It is true that [[XXX]] and [[XXX]] both raised the investigating authority's treatment of their
reported smolt costs in their responses to the Definitive Disclosures. However, in each case, the smolt
cost issue was only one of several aspects of th e investigating authority's margin of dumping
determination that was contested. 699 Thus, it is impossible to confirm by reference to the companies'
responses to the Definitive Disclosure documents that the investigating author ity accepted all or part
of the smolt cost adjustment claims that had been made. Moreover, the fact that both [[XXX]] and
[[XXX]] challenged various aspects of the investig ating authority's cost of production calculations
implies that the decrease in th e margins of dumping between Definitive Disclosure and the Definitive
Regulation might well have been due to the investig ating authority's full or partial acceptance of any
one or more of the companies' other complaints. The EC has not explained how its factual assertions

695 EC, Response to Panel Question 125.
696 See, para. 7.491.
697 EC, Opening Statement at the Second Substantive Meeting of the Parties, para. 107.
698 EC, Response to Panel Question 125.
699 [[XXX]] response to the Definitive Disclosure criticized various aspects of the investigating
authority's calculation of its cost of production, including the amounts used for smolt costs, finance costs,
SG&A costs and the quantity of salmon produced duri ng the period of investigation. Exhibit NOR-136.
Likewise, [[XXX]] response to the Definitive Disclosure contested various aspects of the investigating
authority's calculation of its cost of production, including the amounts used for smolt costs, finance costs,
depreciation costs, processing costs as well as the treatment of write-downs for biomass. Exhibit NOR-98.

are substantiated in the light of the various comment s of the investigated parties on the investigating
authority's determination of dumping that are set out in their responses to the Definitive Disclosures.
Thus, the simple fact that the margins of dumping determined for the two companies in the Definitive
Regulation are lower than those announced in the Definitive Disclosures does not support the EC's
assertion that the investigating authority accepted the two companies' claims in respect of smolt costs.
7.554 There is therefore no factual basis to substantiate the EC's rejection of Norway's claim. Thus,
on the basis of the facts that have been presented before us, we find that there is no evidence to
conclude that the investigating authority accepte d the requested smolt cost adjustments between
Definitive Disclosure and adoption of the Definitive Re gulation. In other words, there is no factual
basis to support the EC's view that the investigating authority did not include the contested smolt costs
in the calculation of [[XXX]] and [[XXX]] costs of produc tion. In this light, and bearing in mind that
the EC has accepted that the smolt costs at issu e were not "associated" with production and sale of
salmon during the period of investigation, we find that the investigating authority acted inconsistently
with Articles 2.2 and 2.2.1.1 of the AD Agreement.
(ii) [[XXX]]
7.555 We next turn to address Norway's claims in respect of [[XXX]] requested smolt cost
adjustments.
7.556 The EC contends that, consistent with its normal accounting practice, [[XXX]] initially
reported its cost of production to the investigati ng authority on the basis of project accounting.
According to the EC, such an approach, if prope rly implemented, would have accounted for both of
the smolt cost adjustments at issue. However, th e EC asserts that [[XXX]] reported figures could not
be reconciled with its annual accounts, which indicated a higher level of costs than reported. As a
consequence, the investigating authority was left with no alternative but to determine [[XXX]] cost of
production on the basis of [[XXX]] annual account s and trial balances covering the period of
investigation.
7.557 While acknowledging that the cost of the NOK [[XXX]] million purchase of smolt should
have been excluded from [[XXX]] cost of production for the period of investigation, had such costs
been determined through project accounting, the EC argues that since project accounting was not
used, this amount could not be deducted.700 In this regard, the EC contends that the exclusion of these
costs was not simply a matter of checking the invoice date of the smolt purchase and concluding that
salmon grown from such smolt could not have been ha rvested during the period of investigation. It
also required information about the extent to which smolt purchased before the period of investigation
was harvested as salmon during the period of investig ation. However, unlike [[XXX]] and [[XXX]],
for whom the EC contends the investigating au thority accepted similar smolt cost adjustments,
701
[[XXX]] did not apparently apply a tracking syst em that would have permitted the investigating
authority to make the appropriate corrections. 702 In the absence of this in formation, the investigating
authority was unable to verify the requested adjustment and therefore, in the EC's view, it was entitled
to treat the costs reported in the annual accounts as "associated" with production and sale of salmon
during the period of investigation.
7.558 Similarly, the EC argues that the effect of the NOK [[XXX]] million sale of smolt to
unrelated parties on the costs of smolt for the period of investigation would have been properly

700 EC, FWS, para. 708; EC, Opening Oral Statement at the Second Substantive Meeting of the Parties,
para. 108.
701 However, we recall that we have found that there is no evidence to support the factual assertion that
the investigating authority accepted the smolt cost adjustments requested by [[XXX]] and [[XXX]].
702 EC, Response to Panel Question 126.

accounted for had project accounting been used to determine [[XXX]] cost of production. However,
because the requested adjustment could not be veri fied, the investigating au thority was entitled to
reject the adjustment.
703 Thus, as we understand it, the EC's defe nce to Norway's cl aim is centred on
the contention that the requested adjustments could not be verified on the basis of the information
contained in the annual accounts.
7.559 Norway notes that [[XXX]] presented its request for the two smolt cost adjustments in
response to the investigating authority's Informati on Note on Cost of Production, which was the first
time that [[XXX]] learned of the methodology the investigating authority intended to apply to
determine its cost of production. Thus, Norway submits that [[XXX]] requested the adjustments at
the earliest possible opportunity after the investigating authority had disclosed that it was including
the smolt costs at issue in its calculation of [[XXX]] cost of production. Norway argues that there is
no documented evidence that the investigating authority attempted to verify [[XXX]] claimed
adjustments. Furthermore, according to Norway, if the investigating authority considered that it
needed additional information, it could have asked [[XXX]] to provide it. However, it never made
any such request. Thus, Norway argues that the EC 's assertion that the investigating authority made
no adjustment because it could not verify the information submitted by [[XXX]] is not credible.
704
7.560 Before evaluating the merits of Norway's claim, we find it useful to first set out some of the
key facts surrounding the investigating authority's rejection of the requested adjustments.
 Facts

7.561 The Information Note on Cost of Production relating to [[XXX]] identified a number of
deficiencies in [[XXX]] questionnaire reply, relating to " inter alia" SG&A costs, income statements,
filleting costs and information about a related compan y. Overall, the investigating authority found
that [[XXX]] reported cost of production "appeared only to reflect part of the cost incurred on the
production of the product concerned". 705 It therefore rejected the reported costs and calculated
[[XXX]] cost of production on the basis of "[[XXX]] Accounts for the IP", that is, using "[a]ll costs in
[[XXX]] Accounts for the IP used as starting point". 706 The investigating authority then made five
separate adjustments, one of which was a "cost de duction of 4 per cent [[XXX]] for production which
did not relate to Salmon".707
7.562 In its response to the Information Note, [[XX X]] contested the NOK [[XXX] deduction made
for non-salmon production activities. 708 [[XXX]] argued that the appropriate adjustment for non-
salmon activities should have amounted to NOK [[XXX]], covering four separate items. Two of these
were the smolt cost adjustments at issue in this dispute. 709 [[XXX]] submitted a statement from its
auditor confirming their amounts as NOK [[XXX ]] for the purchased smolt adjustment, and NOK
[[XXX]] for the smolt sale adjustment. 710 The adjustments were explained by [[XXX]] in the
following language:
"c. The late smolt entry of 2004 in Oct ober is accounted for in September, and
must therefore be adjusted (deducted). Th is will also correspond to the late smolt

703 EC, FWS, para. 709; EC, Opening Oral Statement at the Second Substantive Meeting of the Parties,
para. 108.
704 Norway, Comments on EC Response to Panel Questions 93 and 126.
705 Information Note on Cost of Production - [[XXX]], Exhibit NOR-55.
706 Information Note on Cost of Production - [[XXX]], Exhibit NOR-55.
707 Information Note on Cost of Production - [[XXX]], Exhibit NOR-55.
708 [[XXX]], Response to the Information Note on Cost of Production, Exhibit NOR-56.
709 [[XXX]], Response to the Information Note on Cost of Production, Exhibit NOR-56.
710 [[XXX]], Response to the Information Note on Cost of Production, Exhibit NOR-56.

entry of 2003 which is accounted for in October and therefore during the
investigation period. The cost for this external smolt purchase is NOK, [[XXX]] mill.
d. We have deducted NOK [[XXX]] mill fro m costs related to external sales in
the smolt department. These costs are related to sale of a smolt group sold to a non-
related customer, cost connected to cod fry f acility, and cost connected to loss of fish
in one of the hatchery that is now clos ed. Related income are eliminated on the
income side."
711
7.563 The investigating authority confirmed the findi ngs made in the Information Note at the
provisional stage, stating only that:
"Your comments concerning the matters covered by adjustments 1 to 3 above,
contained in your letter da ted 16 March 2005, have b een noted and will be re-
examined at the definitive stage once all re quired information has been collected. If
extra information is required from your company we will inform you."712
7.564 [[XXX]] responded to the investigating aut hority's provisional findings making the same
arguments and providing the same auditor statem ents contained in the comments made to the
Information Note. The explanations given for the adjustments was essentially the same:
"c. The late smolt entry of 2004 in Oct ober is accounted for in September with
NOK [[XXX]], and must therefore be adjusted (deducted). This will also correspond
to the late smolt entry of 2003 which is accounted for in October 2003 and is
therefore fully included in the reported data in the investigation period.
d. We have deducted NOK [[XXX]] mill from costs related to external income
in the smolt department. These costs are related to sale of a smolt group sold to a non
related customer, cost connected to cod fry f acility, and cost connected to loss of fish
in one of the hatchery that is now closed. Corresponding income is eliminated in the
accounts receivables."
713
7.565 At the definitive stage, the investigating aut hority once again confirmed the findings made in
the Information Note, stating that the [[XXX]] adju stment made to costs of production for costs not
associated with the production of salmon would st and because the informati on used by [[XXX]] to
challenge this adjustment "was not verified on spot".714
 The adjustment for purchased smolt

7.566 The facts show that the investigating authorit y did not initially reject [[XXX]] adjustment of
NOK [[XXX]] million for purchased smolt costs. At the provisional stage, the investigating authority
noted [[XXX]] request and explained that it would re-examine the matter at the definitive stage of the
investigation. Furthermore, it stated that if an y additional information w as required, [[XXX]] would
be informed. No additional information was reque sted from [[XXX]]. At the definitive stage, the
investigating authority rejected the requested adjust ment because the information used by [[XXX]] to
justify its claim had not been verified during the on-the-spot investigation conducted in January 2005.

711 [[XXX]], Response to the Information Note on Cost of Production, Exhibit NOR-56.
712 [[XXX]], Provisional Disclosure Document, Exhibit NOR-58.
713 [[XXX]], Response to Provisional Disclosure Document, Exhibit NOR-57.
714 [[XXX]], Definitive Disclosure Document, Exhibit NOR-16.

7.567 The information verified during the on-the-spot investigation was essentially that contained in
[[XXX]] questionnaire reply, parts of which have been submitted as evidence in this dispute.
[[XXX]] costs of production were reported in a table attached to Section F of the questionnaire. This
table was submitted by Norway as Exhibit NOR-59. On reviewing the data contained in this
exhibit,
715 we find that an amount of NOK [[XXX]], representing "External purchase of [sic]
smolt/fry" in "Salmon autumn 04", appears as an ad justment ("Adjustment [[XXX]]") to the reported
costs of production. In addition, an amount of NOK [[XXX]] is booked for "External purchase of
[sic] smolt/fry" relating to "Salmon autumn 03", and included in the reported costs for the period of
investigation.
7.568 As we understand it, these figures match the adjust ments described by [[XXX]] at point "c."
of its comments on the investigating authority's di sclosures. Although presented in the context of
[[XXX]] own methodology for calculating costs of pr oduction, which was different from that applied
by the investigating authority, it is clear to us that "Adjustment [[XXX]]" was intended to reduce
[[XXX]] cost of production by the cost of purchased smolt incurred during the period of investigation
which related to salmon harvested outside of the pe riod of investigation. Thus, contrary to what
Norway asserts, it was not the case that the investigating authority did not have an opportunity to
verify the information underlying [[XXX]] requested adjustment during the on-the-spot investigation.
Indeed, in reviewing [[XXX]] reported costs of pr oduction, the investigating authority would have
been faced with precisely the same claim for an adjustment to pr operly account for the cost of
purchased smolt not harvested in the period of inves tigation that it was later faced with in [[XXX]]
comments on the disclosures.
7.569 We recall that the investigating authority re jected [[XXX]] reported costs of production
because they "appeared only to reflect part of the cost incurred on the production of the product
concerned".
716 The investigating authority found that they were "incomplete and understated". 717
Although there is no report indicating that the spec ific purchased smolt cost figure at issue was
verified and rejected, we do not believe that this means that there is no evidence to show that the
investigating authority was unable to verify the accuracy of that particular piece of data during the on-
the-spot investigation. In our view, given the par ticular circumstances of this case, the investigating
authority's overall view that [[XXX]] reported cost s of production were deficient overall is enough to
substantiate its conclusion that [[XXX]] purchased smolt cost adjustment could not be verified. In the
light of the large volumes of data that an investig ating authority must process during the course of an
investigation, we do not believe that an investigating authority must explain, for each and every piece
of cost data that is placed before it, why it ma y have rejected it, when it has reached a general
conclusion about the quality of the reporting of costs overall, as it did in the present case.
7.570 Thus, we find that Norway has failed to establish that the investigating authority erred when it
rejected [[XXX]] claimed adjustme nt for the cost of purchased sm olt relating to salmon harvested
outside of the period of investigation. Accordingly, we dismiss Norway's claim that the investigating
authority acted inconsistently w ith Article 2.2 when it decided not to accept [[XXX]] NOK [[XXX]]
million adjustment to its cost of production.
 The adjustment for income from smolt sales

7.571 As with [[XXX]] purchased smolt cost adjustme nt, the investigating authority justified its
rejection of [[XXX]] requested adjustment for income earned from sales of smolt to unrelated
customers on the basis of the conclusion that the in formation used by [[XXX]] to justify its claim had
not been verified during the on-the-spot investig ation conducted in January 2005. However, unlike

715 In particular, the Excel worksheet titled "COP-Section F".
716 [[XXX]], Information Note on Cost of Production, Exhibit NOR-55.
717 [[XXX]], Information Note on Cost of Production, Exhibit NOR-55.

the situation in respect of [[XXX]] claimed purchase d smolt cost adjustment, we can find no evidence
of an adjustment of this kind in the cost of production data first reported to the investigating authority.
Neither has the EC pointed to where in, [[XXX]] questionnaire reply (or any other submission that
was subject to the on-the-spot investigation), such an adjustment can be found or how the
investigating authority attempted to verify it "on-th e-spot". Thus, on the basis of the facts that are
before us, we agree with Norway that the first tim e that the investigating authority was presented with
[[XXX]] claim for a NOK [[XXX]] million adjustment to account for income earned from smolt sales
was after it had issued its Information Note on Cost of Production. In other words, [[XXX]]
requested adjustment for income earned from smolt sal es was not before the investigating authority at
the time of the on-the-spot investigation.
7.572 We recall that the EC has explained the investigating authority's actions in terms of its
inability to match [[XXX]] requested adjustment with the information c ontained in its annual
accounts. The EC has not argued that the investiga ting authority was justified in rejecting [[XXX]]
requested adjustment because it was submitted after the on-the-spot investigation. In other words, the
EC has not argued that the requested adjustment wa s rejected because too late to be verified on-the-
spot. Rather, the focus of the EC's defence to No rway's claim is on the investigating authority's
inability to verify the submitted data on the basis of annual accounts and trial balances. Thus, it
follows from the EC's explanation of the inves tigating authority's conclusion in the Definitive
Disclosure that the reason for rejecting [[XXX]] requ ested adjustment was that, at the time of the on-
the-spot investigation, the information underlying th e submitted data could not be verified. However,
as we have noted above, [[XXX]] requested adjust ment for income earned from smolt sales was not
before the investigating authority at the time of the on-the-spot investigation. There is therefore no
factual basis to support the investigating authority' s conclusion that the requested adjustment "was not
verified on spot",
718 in the sense that has been advanced by the EC. It follows that the investigating
authority's rejection of [[XXX]] requested adjustment rested on a flawed assessment of the facts that
were before it. Consequently, the investigating au thority's conclusion that th e unadjusted smolt costs
were "associated" with production and sale of salm on during the period of investigation was also
flawed. Thus, we find that the investigating author ity acted inconsistently with Article 2.2 of the AD
Agreement.
4. Alleged Inconsistency of the EC's Treatment of Selling, General and Administrative
Expenses with Article 2.2.2 of the AD Agreement
(a) Arguments of the Parties
(i) Norway
7.573 Norway argues that Article 2.2.2 of the AD Ag reement requires investigating authorities to
calculate selling, general and administrative ("SG&A ") expenses used in the construction of normal
value on the basis of actual data pertaining to the production and sale of the like product in the
ordinary course of trade. Norway claims that the i nvestigating authority acted inconsistently with this
obligation when it used adjusted SG&A amounts in the calculation of [[X XX]] constructed normal
value instead of relying on [[XXX]] reported SG&A expenses, which represented the actual selling,
general and administrative, expenses incurred by [[XXX]] during the period of investigation. Norway
argues that the investigating authority failed to pr ovide any explanation at all for its rejection of
[[XXX]] reported G&A figures; and that the only stat ed reason for its rejection of the reported selling
expenses was that they did not reflect what it consid ered should be the higher expense associated with
making sales to unrelated domestic customers, compared with sales to related domestic customers.
Norway argues that this explanation was inadequa te because it failed to identify any specific selling

718 [[XXX]], Definitive Disclosure Document, Exhibit NOR-16.

functions undertaken by [[XXX]] sales company th at contributed to a difference in the amount of
expenses incurred for sales transactions to related and unrelated customers.
7.574 In addition, Norway submits that the i nvestigating authority treated [[XXX]] in a
discriminatory fashion, without justification or explanation, because it accepted all SG&A expenses
reported by companies such as [[XXX]], [[XXX] ] and [[XXX]], while rejecting those reported by
[[XXX]], even though, in its view, all of th ese companies reported such costs using the same
allocation methodology and even, in the case of [[XXX ]], sold to the same related domestic customer
([[XXX]]).
7.575 Finally, Norway claims that the investig ating authority acted inconsistently with
Article 2.2.2(iii) because the approach it applied to recalculate [[XXX]] SG&A expenses was not
"reasonable". In this regard, Norway argues that the investigating authority's method of calculating
[[XXX]] adjusted SG&A expenses resulted in the double counting of a subs tantial portion of the
company's reported cost of production for salmon; failed to take into account SG&A costs already
reported by [[XXX]]; and, did not address the percei ved deficiency identified by the investigating
authority as the reason for rejecting [[XXX]] reported SG&A expenses in the first place. In Norway's
view, a method of accounting for SG&A expenses cannot be considered "reasonable" where it suffers
from all these deficiencies and results in a substa ntial overstatement of a company's costs through
double counting.
(ii) European Communities
7.576 The EC argues that the investigating authority was justified in rejecting the reported SG&A
costs reported by [[XXX]], and that the alternative basis used to derive these costs was "reasonable",
within the meaning of Article 2.2.2(iii) of the AD Agreement. According to the EC, the reported
SG&A costs requested by [[XXX]] were understated because they related to domestic sales made in
low quantities where economies of scale could not be achieved. As regards G&A expenses, the EC
asserts that no documented evidence was presented to the investigating authority in either [[XXX]]
submissions or during the on-site investigation to demonstrate that the G&A expenses allocated by the
[[XXX]] to [[XXX]], which formed the basis of th e figures reported by [[XXX]], were incorporated
into its normal accounting system. In respect of selling expenses, the EC contends that the
investigating authority was faced with a transfer pr icing issue between related companies that it could
not resolve by reference to a market benchmark. Thus, in order to resolve, what it argues, was the
confusion surrounding [[XXX]] allocation of SG&A cost s, the investigating authority used the "other
operating expenses" item in the consolidated acc ounts of the [[XXX]] as a proxy for SG&A cost.
719
The EC argues that the investigating authority had no reason to believe that the consolidated accounts
were not accurate. Therefore, there was no reason to suspect that there could be double-counting of
costs charged by one group company to another.
(b) Evaluation by the Panel
7.577 We recall that the first sentence of Article 2.2.2 states in clear terms that the amounts for
SG&A cost used in the calculation of constructe d normal value "shall" be based on "actual data
pertaining to production and sales in the ordinary course of trade of the like product by the exporter or
producer under investigation". 720 Norway does not claim that th e investigating authority acted
inconsistently with this obligation because it failed to rely on data pertaining to sales in the ordinary
course of trade. Rather, Norway's claim is, in the first instance, concerned with the justification (and
alleged lack of reasons) provided by the investigatin g authority for its rejection of the reported SG&A
costs.

719 EC, FWS, para. 714.
720 See, para. 7.298.

7.578 Norway asserts that the SG&A cost information submitted by [[XXX]] was derived from
actual data taken directly from its audited accounts, maintained in accordance with Norwegian GAAP,
reflecting allocation methods that comp anies in the [[XXX]] frequently used. 721 Thus, according to
Norway, there was no basis to reject the reported info rmation. On the other hand, the EC contends
that the reported data understated actual SG&A expenses, and so the investigating authority was
entitled to reject the reported costs and derive them through the use of an alternative methodology.
Thus, as we understand it, the issue at the centre of the parties' dispute is essentially a factual one. It
is therefore useful, before turning to assess the merits of the parties' arguments, to first set out some of
the key facts surrounding the investigating authority's rejection of [[XXX]] reported SG&A costs.
 Facts

7.579 In its reply to the investigating authority' s questionnaire, [[XXX]] reported G&A and selling
expenses separately, on a per kilogram basis, under the headings "Administrative cost" and "Sales and
marketing cost".
722 The information was presented in table form, together with various other cost
items reported for the purpose of determining [[XXX]] full cost of production.
7.580 The narrative section of [[XXX]] questionnaire repl y explained that [[XXX]] was part of the
[[XXX]] of vertically integrated companies active in the business of farming, slaughtering and
packing salmon and trout. [[XXX]], the parent co mpany, performed all administrative functions for
the companies belonging to the [[XXX]]. The costs associated with these function were "allocated to
the various profit centres".
723 According to Norway, this meant that the cost associated with the
administrative functions performed by [[XXX]] were allocated according to a standard methodology
to all of the companies in the [[XXX]].724
7.581 [[XXX]] questionnaire reply indicates that it made all of its sales of salmon through a related
sales company, [[XXX]]. 725 Almost all of the domestic sales made by [[XXX]] through [[XXX]]
were to another related company [[XXX]]. 726 The relationship between [[XXX]] and [[XXX]] was
explained in the following terms:
"One of our main customers is [[XXX]]. The mother company of [[XXX]], [[XXX]],
holds 39 per cent of the shares of [[XXX]], the mother company of [[XXX]], and is
therefore regarded as a company related to [[XXX]]. The salmon is sold on ordinary
commercial terms to [[XXX]]."
727
7.582 [[XXX]] received the same price obtained by [[X XX]] for its sales, which were for the most
part made to [[XXX]]. [[XXX]] then invoiced [[XXX]] the cost of its selling services.728
7.583 In the Information Note on Cost of Production, the investigating authority rejected [[XXX]]
reported SG&A costs and used instead a proxy fo r these costs derived from the 2003 Profit and Loss
Account for the Group. The investigating authority explained its decision and the approach taken to
calculate [[XXX]] SG&A expenses in the following terms:

721 Norway, FWS, paras. 1029, 1032, 1033 and 1045.
722 [[XXX]], Questionnaire Reply, Excel file [[X XX]], Exhibit NOR-132 and Excel file [[XXX]],
Exhibit NOR-138.
723 [[XXX]], Questionnaire Reply, Exhibit NOR-139.
724 Norway, FWS, para. 1030.
725 [[XXX]], Questionnaire Reply, Exhibit NOR-139.
726 [[XXX]], Questionnaire Reply, Exhibit NOR-141.
727 [[XXX]], Questionnaire Reply, Exhibit NOR-139.
728 [[XXX]], Questionnaire Reply, Exhibit NOR-141.

"SGA costs were not reported in the format requested. In particular, no break-down
was given on SGA relating to total turnover, product concerned sold on the domestic
market and for export, to related and unre lated customers. Subsequently, SGA costs
were re-assessed on the basis of the 2003 Profit and Loss Account of the Group
Company (see table attached). In addition, a trader's mark-up was added to the SGA
in order to cater for the activities of a trader involved in the export of the product
concerned. The mark-up added (5 per ce nt) does not correspond to the costs actually
incurred by [[XXX]] but constitutes an approximation (confidentiality reasons)."
729
7.584 [[XXX]] contested these findings, arguing that the reported SG&A costs were established on
an arm's length basis and presented in its audited acc ounts. It also contested the methodology applied
to recalculate its SG&A costs, arguing inter alia that on the basis of data from its 2004 accounts, the
investigating authority's methodology would result in the calculation of a negative SG&A expense.730
7.585 The investigating authority maintained its rej ection of [[XXX]] reported SG&A costs in its
provisional findings, but modified the methodology used to calculate the amounts used in the
construction of [[XXX]] normal value. The investigating authority explained its decision as follows:
"The principles of assessing SGA have not changed compared to the methodology set
out in the information note. However, in order to allocate SGA to domestic sales to
unrelated customers a re-assessment was made on the basis of the turnover ratio of
unrelated sales against total sales. Details are contained in spreadsheet "SGA factor".
In effect, the total amount of SGA incurred was allocated to unrelated sales only. For
the purpose of determining provisional measu res, this is considered a reasonable
estimate of the SGA incurred on domestic sales to unrelated customers."
731
7.586 Once again, [[XXX]] contested th e investigating authority's findings, arguing that it was
ignoring reported SG&A costs based on its audited accounts and appl ying an unreasonable
methodology to recalculate them, which could result inter alia in triple counting certain costs.732
7.587 In the Definitive Disclosure provided to [[XXX] ] the investigating authority continued to
reject the reported SG&A costs, but changed, fo r a third time, the methodology applied to determine
the relevant costs to use in the construction of [[XXX]] normal value. Thus, the investigating
authority explained:
"Selling, general and administrative costs have been re-assessed on the basis of "other
operating expenses" borne by the group comp any. By taking recourse to this
approach, it is ensured that the full SGA incurred are actually allocated on the product
concerned. It is also noted that normal value is constructed on the basis of SGA
applicable on domestic sales to unrelated customers. This SGA should be higher than
the SGA incurred for sales to related customers ([[XXX]])."733
7.588 [[XXX]] maintained its objection to both the re jection of its reported SG&A costs as well as
the revised methodology used to dete rmine those costs. In particular , [[XXX]] argued that the use of
the Group's consolidated "other operating expenses" resulted in using an SG&A amount that was 18
per cent of its cost of production in the constructi on of normal value. In addition, [[XXX]] submitted

729 [[XXX]], Information Note on Cost of Production, 8 March 2005, Exhibit NOR-142.
730 [[XXX]], Comments on Information Note on Cost of Production, 16 March 2005, Exhibit NOR-
129.
731 [[XXX]], Provisional Disclosure Document, 22 April 2005, Exhibit NOR-143.
732 [[XXX]], Comments on Provisional Disclosure Document, 27 May 2005, Exhibit NOR-134.
733 [[XXX]], Definitive Disclosure Document, 28 October 2005, Exhibit NOR-45.

that several irrelevant cost elements (smolt co st, feed cost, overhead, other farming cost and
processing cost) were included in the amount of cons olidated "other operating expenses". As such,
the use of "other operating expenses" as the benc hmark for SG&A costs was bound to result in an
unreasonably high outcome. [[XXX]] submitted a break-down of these various cost elements and an
auditor's statement attesting to the correctness of the reported figures with Norwegian law and "good
accounting practice".734
 Norway's claim under Article 2.2.2 of the AD Agreement

- General and administrative expenses
7.589 We recall that in responding to Norway's claims in respect of the investigating authority's
rejection of [[XXX]] reported G&A costs, the EC asserted that there was no documented evidence
that the allocation of costs reported by [[XXX]] wa s incorporated in its normal accounting system nor
that [[XXX]] was able to demonstrate that this was the case during the on-the-spot investigation. 735
Norway argues that this explanation of the inves tigating authority's rejection of [[XXX]] reported
G&A costs amounts to "ex-post rationalization".736 We agree.
7.590 Having reviewed the investigating authority' s disclosures to [[XXX]], we can find no
evidence to substantiate the EC's assertion that th e reason why the investigating authority rejected
[[XXX]] reported G&A costs was that [[XXX]] had faile d to show that the cost allocations used to
derive the reported figures were incorporated into its normal accounting system. The reason given for
rejecting [[XXX]] reported SG&A costs in the In formation Note on Cost of Production was simply
that they "were not reported in the format requested". 737 The explanation provided in the provisional
disclosure gives no further insight into the reason for rejecting [[XXX]] reported G&A costs.
Likewise, the explanation set out in the definitiv e disclosure does not substantiate the EC's assertion
that [[XXX]] failed to document th e consistency of the allocation methodology used to report G&A
costs with its annual accounts. Moreover, in respon se to a specific question from the Panel asking it
to reconcile the asserted basis for the investigati ng authority's rejection of [[XXX]] reported G&A
costs with the statements made by the investigati ng authority in the disclosures, the EC confirmed its
view that [[XXX]] had failed to properly substa ntiate the allocation methodology applied, and in
addition submitted that:
"[[XXX]] was unable to demonstrate that the reported SGA expenses pertained to its
domestic sales. The SGA expenses we re understated since the domestic sales
concerned low quantities where no economies of scale could play as compared to the
situation on the important volume of export sales."738
7.591 However, in making the above statements and co nfirming its initial factual assertions, the EC
did not refer to any piece of evidence or information that was before the investigating authority at the
time of the investigation.
7.592 Thus, we find that there is no factual basis to support the EC's contention that the
investigating authority rejected [[XXX]] re ported G&A costs because it considered that no
documented evidence was presented in either [[XXX]] submissions, or during the on-site
investigation, to demonstrate that the G&A e xpenses allocated by the [[XXX]] to [[XXX]] were
incorporated into its normal accounting system. Th ere is therefore no basis to conclude that the

734 [[XXX]], Comments on Definitive Disclosure Document, 8 November 2005, Exhibit NOR-136.
735 EC, FWS, para. 711.
736 Norway, SWS, para. 292.
737 [[XXX]], Information Note on Cost of Production, 8 March 2005, Exhibit NOR-142.
738 EC, Response to Panel Question 120.

investigating authority's rejection of [[XXX]] reported G&A costs rested on an unbiased and objective
assessment of the facts before it. Accordingly, we find that in rejecting [[XXX]] reported G&A costs
the investigating authority acted inconsistently with Article 2.2.2 of the AD Agreement.
- Selling expenses
7.593 Although the investigating authority's initial reason for rejecting [[XXX]] reported selling
costs was that they had not been "reported in the format requested",
739 the Definitive Disclosure
reveals that the investigating authority rejected [[XXX]] reported selling costs because it considered
them to be an unreliable measure of selling costs to unrelated customers. This can be understood
from the following statement:
"It is also noted that normal value is co nstructed on the basis of SGA applicable on
domestic sales to unrelated customers. This SGA should be higher than the SGA
incurred for sales to related customers ([[XXX]])."740
7.594 Thus, the EC argues that the investigating au thority was justified in rejecting [[XXX]]
reported selling costs because it was confronted with a problem of "transfer pricing".741
7.595 The facts show that [[XXX]] made all of its dom estic market sales through a related "sister"
company [[XXX]], which in turn sold almost all of [[XXX]] salmon to a related customer [[XXX]].
[[XXX]] parent company, [[XXX]], held a 39 per cent interest in [[XXX]], which is the parent
company of [[XXX]]. The price received by [[ XXX]] for sales through [[XXX ]] was the same as the
price invoiced from [[XXX]] to [[XXX]]. [[XXX]] would invoice [[XXX]] the cost of administering
its salmon sales to [[XXX]] and it was this cost that was reported by [[XXX]] as its selling expense.
7.596 Thus, the entire chain of sale from [[XXX]] to the final customer [[XXX]] involved the
transfer of salmon, and the invoicing of costs and prices, from one related company to another. In
particular, [[XXX]] paid its "sister" company [[XX X]] to sell its salmon, almost all of which was
purchased by [[XXX]]. In retu rn, [[XXX]] would receive the price obtained by [[XXX]] from
[[XXX]]. [[XXX]] parent company owned 39 pe r cent of [[XXX]], which owned 100 per cent of
[[XXX]]. In the light of the corporate relations hips lying at the centre of [[XXX]] sales transactions,
we cannot fault the investigating authority for su specting that the invoiced costs and prices may not
have been reliable. In this regard, we note that Article 2.3 of the AD Agreement explicitly envisages
the possibility of finding export price information unreliable when it is de rived from related-party
transactions. Similarly, pursuant to Article 2.1, related-party transactions may be a basis for finding
domestic sales outside of the ordinary course of trade.
742 We see no reason why the related-party
nature of an investigated party's selling activities mi ght not also affect the reliability of its reported
selling costs.
7.597 Norway also argues that in rejecting [[XX X]] reported SG&A costs, the investigating
authority treated [[XXX]] in a discriminatory fashion, without justification or explanation, compared
with [[XXX]], [[XXX]] and [[XXX]], even though all of these companies apparently reported SG&A
costs using the same allocation methodology as [[ XXX]]. Furthermore, in the case of [[XXX]],
Norway contends that not only was the allocation methodology the same, but also its sales of salmon
were made to the same related customer [[XXX]].
743

739 [[XXX]], Information Note on Cost of Production, 8 March 2005, Exhibit NOR-142.
740 [[XXX]], Definitive Disclosure Document, 28 October 2005, Exhibit NOR-45.
742 See, e.g., Appellate Body Report, US – Hot-Rolled Steel, para. 141.
743 Norway, FWS, para. 1047.

7.598 We note that as far as selling costs are concerned, the investigating authority's rejection of
[[XXX]] reported costs was not based on the methodol ogy used to derive those costs, but rather the
related-party nature of the sales transactions from wh ich they were derived. Thus, the fact that the
investigating authority accepted the reported SG&A costs of [[XXX]], [[XXX]] and [[XXX]], which
were derived through application of the same methodology as [[XXX]], does not demonstrate that
[[XXX]] was treated in a discriminatory fashion. Moreover, while it is true that [[XXX]] sold its
salmon production to the related company [[XXX]], the facts that have been presented to us do not
demonstrate that these sales were made through [[ XXX]]. Indeed, the information that we have
reviewed indicates that [[XXX]] sold directly to [[XXX]], without using the services of any
intermediate seller.744 To this extent, the facts surroundi ng [[XXX]] sales transactions, from which
were derived its reported SG&A costs, were diffe rent from those underlying [[XXX]] reported selling
costs. In this light, the investigating authority' s rejection of [[XXX]] reported selling costs did not
amount to discriminatory treatment compared with how the investigating authority treated [[XXX]].
7.599 Thus, on the basis of the facts that are before us , we consider that the investigating authority's
conclusions about the reliability of [[XXX]] re ported selling expenses did not result from an
evaluation of facts that was biased or not objective. Therefore, we find that Norway has failed to
establish that the investigating authority acted inconsis tently with Article 2.2.2, first sentence, when it
rejected [[XXX]] reported selling expenses.
 Norway's claim under Article 2.2.2(iii) of the AD Agreement

7.600 Norway claims that, even if the investigating authority was entitled to reject [[XXX]] reported
SG&A costs, the methodology applied to recalculate [[XXX]] SG&A costs was not "reasonable", and
therefore inconsistent with Article 2.2.2(iii) of the AD Agreement. This provision reads:
"For the purpose of paragraph 2, the am ounts for administrative, selling and general
costs and for profits shall be based on actual data pertaining to production and sales in
the ordinary course of trade of the lik e product by the exporter or producer under
investigation. When such amounts cannot be determined on this basis, the amounts
may be determined on the basis of:

(iii) any other reasonable method, provided that the amount for profit so
established shall not exceed the profit normally realized by other exporters or
producers on sales of products of the same general category in the domestic
market of the country of origin."
7.601 We recall that after rejecting [[XXX]] reported SG&A costs, the investigated authority relied
upon an allocation of costs from the "other operating expenses" reported in the [[XXX]] consolidated
accounts. Norway notes that this methodology r esulted in the addition of NOK [[XXX]] to [[XXX]]
per kilogram cost of produc tion, increasing the company's costs by almost 20 per cent.
745 I n
particular, Norway argues that according to the investigating authority' calculations, [[XXX]] "costs to
sell industrial grade salmon to its customers in Norway were (1) significantly greater than the
company's smolt costs, … (2) nearly 40 pe r cent of its salmon feed costs; and (3) over three times

744 [[XXX]], Comments on Definitive Disclosure, 8 November 2005, Exhibit NOR-147; [[XXX]]
Letter to the Commission on double counting of harvest costs, 20 March 2006, Exhibit NOR-148.
745 Norway, SWS, para. 301.

[[XXX]] labor costs for growing salmon."
746 Norway believes there were essentially three problems
with the methodology applied by the investigating authority:
"First, it resulted in the double counting of the SG&A expenses already reported as
part of [[XXX]] cost of production. Sec ond, it involved the unfair inclusion of
SG&A costs incurred within the [[XXX]] that were not associated with salmon
produced by [[XXX]] (e.g., G&A costs incu rred for smolt sold to unaffiliated
customers). Third, and most importantly, by relying on the broad category of " other
operating expenses " as a "proxy" for SG&A costs, the EC double counted a
significant number of other operating costs items that had already been accounted for
in [[XXX]] reported cost of production fo r salmon (e.g. costs for smolt, feed,
harvesting, and other farming and processing operations)."
747
7.602 The EC explains that the consolidated account s do not tell which part of the SG&A cost
originate from [[XXX]] or from the other group comp anies, because they d escribe the costs incurred
for the group as a whole. Thus, assuming that the c onsolidated accounts had been properly prepared,
and the EC argues that the investigating authority ha d no reason to doubt that this was the case, there
would have been no double-counting of costs. Furthermore, the EC argues that there was no reason
why the investigating authority should have redu ced the costs allocated from the consolidated
accounts by the SG&A costs originally reported by [[XXX]], because it contends that [[XXX]]
reported SG&A costs were replaced by the consolidated SG&A costs.
748
7.603 The investigating authority's calculation of [[ XXX]] full cost of production, including SG&A
cost was provided to [[XXX]] in the Definitive Disclosure. Annex 3 of this disclosure is an Excel file
containing several worksheets. The investigating au thority's final cost of production calculations are
found in the worksheet with the title "COP". This worksheet shows that the per kilogram cost of
production for head-on gutted salmon was determined by adding together "farming cost" of NOK
[[XXX]], "wellboat cost" of NOK [[XXX]], "harvesting cost" of NOK [[XXX]] and "processing cost"
of NOK [[XXX]]. To this was added SG&A cost of NOK [[XXX]]. The "full cost" of NOK [[XXX]]
was then multiplied by a weight conversion ratio of 0.90, resulting in a final per kilogram cost of
production of NOK [[XXX]].749
7.604 The same worksheet confirms that the am ount of NOK [[XXX]] SG&A cost was derived
from the consolidated accounts of the [[XXX]]. This is evidenced by the explicit cross-reference to
the worksheet titled "Group results", which shows how the amount of NOK [[XXX]] was determined.
Likewise, the "COP" worksheet reveals that the "farming cost" amount of NOK [[XXX]] was derived
from information contained in the worksheet title d [[XXX]]. The [[XXX]] worksheet indicates that
the "farming cost" amount of NOK [[XXX]] was made up of 12 different cost items. Among these
was the amount of NOK [[XXX]] that [[XXX ]] had reported as "Administrative cost".750 The amount
of NOK [[XXX]] that [[XXX]] had reported as "Sales and marketing cost", was excluded from the
calculation of "farming cost", and cost of production.
7.605 Thus, our review of the investigating authorit y's calculation of [[XXX]] cost of production
reveals that it failed to remove from its calculation of [[XXX]] co st of production part of the reported
SG&A costs that it had refused to accept. In particular, although appare ntly rejecting [[XXX]]
submission of G&A costs, these costs were neverthel ess included in [[XXX]] cost of production. To
the extent that the SG&A costs derived from [[X XX]] data were intended to act as a "proxy" for

746 Norway, Comments on EC Response to Panel Question 124. Emphasis original.
747 Norway, SWS, para. 300.
748 EC, FWS, para. 714; EC, Response to Panel Question 124.
749 [[XXX]], Definitive Disclosure Document, Exhibit NOR-45.
750 [[XXX]], Definitive Disclosure Document, Exhibit NOR-45.

selling, as well as G&A costs, the investigating authority's calculation of [[XXX]] SG&A costs
rendered those expenses greater than what they shou ld have been, in effect counting two amounts for
G&A costs. In our view, a methodology for calcula ting SG&A that inflates SG&A costs above what
they should have been cannot be "reasonable" within the meaning of Article 2.2.2(iii). Accordingly,
we find that the investigating authority acted in consistently with Article 2.2.2(iii) of the AD
Agreement when it determined [[XXX]] SG&A costs on the basis of data pertaining to the [[XXX]]
consolidated accounts without excluding the G&A costs originally reported by [[XXX]] from the
calculation of its cost of production.
5. Alleged Inconsistency of the EC's Treatment of [[XXX's]] Purchased Salmon Costs with
Articles 2.2 and 2.2.1.1 of the AD Agreement
(a) Arguments of the Parties
(i) Norway
7.606 Norway claims that the investigating authority' s adjustment to [[XXX]] cost of production for
purchased salmon costs was inconsistent with Artic les 2.2 and 2.2.1.1 of the AD Agreement because
it overstated [[XXX]] costs of production by NOK [[ XXX]] million. In particular, Norway submits
that the investigating authority improperly determ ined the cost of production of [[XXX]] by adding
the company's costs of purchasing salmon from domestic producers (NOK [[XXX]] million) to its
cost of production, without taking account of th e revenue received (NOK [[XXX]] million) from the
same domestic producers for slaughtering services performed by [[XXX]] in respect of the same
purchased salmon. As a consequence, Norway argu es that the investigating authority overstated
[[XXX]] actual cost of purchased salmon (which was added to the cost of production) by NOK
[[XXX]] million.
7.607 Norway submits that the investigating authority was fully aware of the NOK [[XXX]] million
figure because it was reported in [[XXX]] questionna ire response as a deduction from the company's
salmon processing costs. Moreover, Norway notes th at the investigating authority even referred to
this amount in its Definitive Disclosure for the pur pose of establishing [[XXX]] slaughtering costs.
Thus, according to Norway, the EC has no justificat ion for asserting that the investigating authority
was unfamiliar with the figure and that it could not be verified during the on-the-spot investigation
conducted on [[XXX]] premises.
(ii) European Communities
7.608 Initially, the EC contested Norway's claim becau se, in its view, [[XXX]] never submitted the
figure of NOK [[XXX]] million to the investigating authority. Subsequently, the EC acknowledged
that the figure had been reported as a deduction from [[XXX]] costs of production, but argued that
[[XXX]] was unable to justify the deduction during verification of its accounting records. Finally,
after reconsidering its position and the data submitte d by [[XXX]] during the investigation, the EC
stated, in response to a Question from the Pane l, that [[XXX]] purchases of live salmon and
slaughtering activities for third parties could be isolated from its own-farming activities. Thus, the EC
concluded that the "gross purchase costs of NOK [[XXX]], and harvesting/ slaughtering revenue of
NOK [XXX]] should be taken out of the results of [[XXX]], and the quantity of salmon should be
limited to the farmed fish harvested during the investigation period".
751

751 EC, Answer to Panel Question 128.

(b) Evaluation by the Panel
7.609 As described in the above argumen ts section, the EC's response to Norway's claim in respect
of the investigating authority's treatment of [[XXX]] purchase salmon costs has evolved during the
course of this proceeding. We understand the EC's final position to be that expressed in its response
to Panel Question 128, where it explicitly acknowledg ed that the investigating authority should not
have included [[XXX]] slaughtering revenue of NOK [[XXX]] in its cost of production. In making
this statement, we understand that the EC has accep ted that the cost of production determined for
[[XXX]] in the investigation was overstated by at l east this same amount. In this light, and recalling
our findings in respect of the obligations on inv estigating authorities when constructing normal value
under Articles 2.2 and 2.2.1.1,
752 we uphold Norway's claim, and therefore find that the investigating
authority acted inconsistently with these provi sions when it added the amount of NOK [[XXX]],
representing revenue from the slaughtering services provided by [[XXX]] to third parties, to its cost of
production.
G. A
LLEGED INCONSISTENCY OF THE EC'S INJURY DETERMINATION WITH ARTICLES 3.1, 3.2,
3.4, AND 3.5 OF THE AD AGREEMENT
1. Arguments of the Parties
(a) Norway
7.610 Norway raises three principal challenges to the EC's injury determination. First, Norway
argues that the EC violated Articles 3.1 and 3.2, and consequently Article 3.5, because it failed to
correctly determine the volume of dumped imports to be considered in its injury analysis. Second,
Norway argues that the EC violated Articles 3.1. and 3.2, and consequently, Article 3.5, because it
failed to adequately examine the existence of price undercutting. Finally, Norway argues that the EC
violated Articles 3.1 and 3.4 because it failed to objectively examine price trends affecting EC
producers.
7.611 With respect to the allegedly incorrect volume of imports, Norway asserts that Article 3.1
requires the investigating authority to examine objec tively "the volume of the dumped imports", and
that Article 3.2 requires an examination of whethe r there has been a "significant increase in dumped
imports", while Article 3.5 requires that the authority must demonstrate that "the dumped imports are,
through the effects of dumping, as set forth in pa ragraphs 2 and 4, causing injury". Thus, Norway
argues that under Article 3.5, it is the imports found to be dumped under Article 3.2 that must cause
injury.
7.612 Norway asserts that, in the circumstance of this case, the dumping determinations made with
respect to sampled producers could not be applied to non-sampled exporters, referring in this regard to
the Appellate Body's decision in EC – Bed Linen (21.5 – India), which held that while it is possible to
rely on findings concerning dumping by sampled producers to draw conclusions concerning dumping
by non-sampled producers, this is not always the case.753 In Norway's view, the circumstances of this
case are such that it is not possible to extrapolat e from sampled producers to non-sampled companies,
because of the different operations and cost stru ctures of the companies sampled (production and
exporting) and the non-sampled companies (exporting only). Since, Norway maintains, the dumping
determinations regarding sample d exporting producers do not provide positive evidence that imports
from non-sampled exporters are also dumped, the EC erred in treating all imports from Norway as

752 See, paras. 7.483-7.487, 7.491 and 7.528.
753 Appellate Body Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type
Bed Linen from India – Recourse to Article 21.5 of the DSU by India ("EC – Bed Linen (Article 21.5 – India )"),
WT/DS141/AB/RW, adopted 24 April 2003, DSR 2003:III, 965, para. 138.

dumped. Finally, Norway asserts that the EC wa s required to treat as non-dumped, and therefore
exclude from its injury analysis, imports from Nordlaks, with respect to which it found a de minimis
margin of dumping.
7.613 With respect to price undercutting, Norway observes that Article 3.1 requires that the
investigating authority must examine "the eff ect of the dumped imports on prices" of the like
domestic product, while Article 3.2 provides that the authority must consider whether there was
"significant price undercutting" by the dumped imports. In Norway's view, the mere fact that imports
have lower prices than like domestic products does not necessarily mean that the effect of the dumped
imports is significant price undercutting, as the pric e difference could be e xplained by some other
factor, such as a price premium enjoyed by domestic products. In this case, Norway notes that the EC
found that the dumped imports undercut the price of the domestic product by 12 per cent. Norway
argues that the EC failed to address, in the Defi nitive Regulation, the fact, which it had previously
acknowledged in the disclosure of essential facts, that the domestic product enjoyed a price premium
of 12 per cent. Thus, Norway argues, the price difference between the imported and domestic
products simply reflects the usual price premium en joyed by domestic products. Taking account of
this price premium, Norway argues that there was no price undercutting.
7.614 Third, Norway argues that the EC erred in c onsidering the price trends for the domestic
industry. Norway notes that the EC examined the prices of the sampled domestic producers in Euros,
and concluded that prices had dropped by 9 per cent. However, Norway maintains that this price
"decrease" is a mathematical construct and stems entirely from an appreciation in the value of the
Euro in comparison to the pound sterling over the pe riod considered. Norway asserts that the EC was
required to evaluate the evidence concerning pri ce trends from the perspective of the sampled
companies being examined, which incurred most of their costs in pounds sterling, and made 70 per
cent of their sales in the UK, in pounds. Norway argues that, when prices trends are examined in
pounds sterling, instead of a decline in prices, prices remained constant and did not fall.
(b) European Communities
7.615 The EC asserts that it acted appropriately in treating all imports from Norway as dumped in
its injury analysis. The EC maintains that it wa s appropriate in the circumstances of this case to
extrapolate from the findings of dumping for sampled companies (producing exporters) to non-
sampled companies (including non-producing exporters). In this regard, the EC argues that non-
producing, or independent, exporters essentially serve the same function as the exporting departments
of exporting producers, and that therefore there is no reason to conclude that their experiences would
be any different, and it was therefore appropriate to treat their exports as dumped on the basis of the
evidence of dumping by sampled producers. The EC argues that the facts and circumstances at issue
in the EC-Bed Linen dispute were very different from those in this case, and that these differences
warrants a different outcome in this case. The EC points out that in EC – Bed Linen (Article 21.5 -
India), producers accounting for 53 per cent of the imports in the sample were found not to be
dumping, and the only evidence of dumping was the evidence obtained from the sampled producers.

In this case, the EC maintains that all of the sampled companies were found to be dumping (including
one company having a de minimis dumping margin), and the examined producers accounted for
30 per cent of all imports. For the EC, the extrapolation from the sample to all imports was
appropriate in this case, as there were no imports from sampled producers that were not dumped.
Moreover, the EC maintains that among the imports from the sampled exporting producers, the EC
also examined and included imports from those companies that exported to the Community via
traders, and these imports also were found to be dumped.
7.616 The EC also maintains that it had other s ources of information (besides the findings of
dumping for the sampled producers) indicating that imports from the non-sampled companies were
dumped. The EC notes that Eurostat data was u sed in the assessment of the imports from non co-

operating companies, which were not in the sample , and asserts that the price levels of the non-
sampled companies were very similar to those of the sampled companies.
754 The EC asserts that it
concluded that non-cooperating co mpanies were not dumping less than the sampled companies,
because there was no reason to distinguish, in the interpretation of the Eurostat data, between the
sampled and non-sampled companies. Non-coopera ting companies accounted for approximately
20 per cent of all the imports. For the EC, this implies that the investigating authority had positive
evidence that approximately 50 per cent of all imports were dumped.
7.617 Finally, the EC maintains that the fact that Nordlaks had a de minimis dumping margin does
not mean that it was not dumping, and therefore does not require that its imports be excluded from the
injury analysis. The EC asser ts that the concept of a de minimis dumping margin is a legal rule
relevant in some situations under the AD Agreement, but not in this circumstance. The EC agrees
that, in theory, if 95 per cent of the exports of sampled companies had zero or de minimis margins,
that sample could not be the basis for an extr apolation that all imports from the country in
question are dumped. However, it argues, Nordlaks ' exports accounted for a small percentage of the
volume of exports of the sampled companies, and this cannot be considered significant when all other
companies included in the sample are dumping.
7.618 The EC maintains that it properly examined pri ce undercutting. The EC asserts that Norway
appears to be arguing that a failure to discuss the price premium in the Definitive Regulation is the
problem. However, the EC maintains that it actually considered and examined the effect of the price
premium and, having found that it was not a factor which could affect its price undercutting analysis,
did not mention it in the Definitive Regulation. Thus, the EC asserts that Norway's argument is
misconceived. The EC notes that the price premium was a ddressed in the disclosure, and that the
premium was taken into account in calculating the non-injurious MIPs - to the benefit of Norwegian
exporters, as it resulted in lower MIPs. Moreover, the EC maintains that the price premium does not
play a role in a price undercutting analysis. For the EC, price undercutting is a "snapshot" of the
market situation and reflects nothing but the real price differential. The EC also notes that, under
Article 3.2 of the AD Agreement, price undercutting is not the only relevant factor in considering the
effect of dumped imports on prices, and that in this case, the EC also established price depression and
price suppression. Finally, the EC observes that the conclusion that 12 per cent price undercutting
equals the usual price premium of 12 pe r cent is not mathematically correct. 755 The EC maintains,
even under the Norwegian approach, there would still be 1.44 per cent price undercutting.
7.619 The EC observes that Norway's claim concerni ng the evaluation of price trends is based,
factually and legally, on the proposition that pounds sterling was the operating currency of the
companies examined in the sample. However, th e EC asserts, Norway is incorrect on both the facts
and the law. Moreover, the EC maintains that even if Norway were correct, this would not
demonstrate a violation of Articles 3.1 and 3.4 in the EC's assessment of the domestic industry, as
there is no legal obligation to examine prices in "operating currency". The EC maintains that the
results of its analysis would have been the same regardless of which currency was used, so long as
that use was consistent.756 Moreover, the EC observes that a significant part of the transactions of the
domestic industry took place in Euro, and those sales showed price declines. 757 Finally, the EC
observes that even if there were no price decline, this would not m ean that the assessment of the EC
investigating authority violated Articles 3.1 and 3. 4 of the Anti-Dumping Agreement. Article 3.4 of

754 Relying on Exhibit EC-10.
755 The EC calculates that, assuming the price of EC product is 100 and the price of the Norwegian
product 88 (i.e., 12 per cent price undercutting), the pric e premium should be calculated as 112 per cent of the
price of the Norwegian product (i.e.,. 112 per cent of 88, or 98.56 per cent)
757 Exhibit EC-13.

the AD Agreement specifically provides that none of the factors listed in Article 3.4 shall be given
decisive guidance in the examination of the dumped imports on the domestic industry.
2. Evaluation by the Panel
7.620 In our evaluation of Norway's claims regarding the domestic industry, we noted that whether
the EC defined the domestic industry in a proper mann er may well be decisive in the consideration of
other claims in dispute, i.e., subsidiary claims regarding initiation, as well as claims regarding injury
and causation. We concluded by finding that the EC 's approach to defining domestic industry in this
case resulted in an investigation concerning a dom estic industry that did not comport with the
definition set forth in Article 4.1. Thus, it is clear to us that the EC analyzed the wrong industry in
considering the issue of injury. In addition, the EC's examination of the volume, price effects, and
impact of dumped imports is ba sed on determinations regarding dumping which we have determined
are inconsistent, in various ways, with the AD Ag reement. Thus, it seems clear to us that the
investigating authority's analysis of injury was not based on an objective examination of positive
evidence concerning proper determinations of dumping and a proper definition of the domestic
industry, and that the injury determination is th erefore not consistent with the requirements of
Article 3.1 of the AD Agreement. Nonetheless, the cl aims raised by Norway in this dispute relate to
discrete elements of the investigating authority's an alysis and determination that are capable of being
assessed independently, and we will therefore consider them.
758
(a) Volume of dumped imports
7.621 Norway raises two claims concerning the vol ume of dumped imports. The first of these
concerns the EC's treatment of imports from Nordlaks, for which a de minimis margin of dumping
was calculated, as dumped imports in making its injury determination. We begin by considering the
meaning of the term "dumped imports" in the context of injury determinations under Article 3.
7.622 Article 3.1 provides:
"A determination of injury for purposes of Article VI of GATT 1994 shall be based
on positive evidence and involve an objective examination of both (a) the volume of
the dumped imports and the effect of the dumped imports on prices in the domestic
market for like products, and (b) the consequent impact of these imports on domestic
producers of such products."
Thus, Article 3.1, requires consideration of th e volume, price, and consequent impact of dumped
imports on the domestic industry. Articles 3.2, 3.4 and 3.5 set out more specific guidelines for the
consideration of the volume, price effects, impact on domestic producers, and causation, and similarly
require consideration of dumped imports.

7.623 Norway's claim that imports attributable to Nordlaks were wrongly treated as dumped in the
EC's injury determination thus raises the question of the interpretation of the term "dumped imports"
in Articles 3.1, 3.2, 3.4 and 3.5 of the AD Agreem ent. Previous panel and Appellate Body decisions
have made clear that dumping is a determination made with reference to a product from a particular

758 We note that, in addition to making findings neces sary to resolve the matter before it, a panel is
required to "make such other findings as will assist the DSB in making the recommendations or in giving the
rulings provided for in the covered agreements." Article 11, DSU. The Appellate Bo dy has stated that "[s]uch
"other findings" could, for instance, relate to implementation, to the extent that such findings "will assist the
DSB in making the recommendations or in giving the rulings provided for in the covered agreements".
Appellate Body Report, European Communities – Export Subsidies on Sugar ("EC – Export Subsidies on
Sugar"), WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, adopted 19 May 2005, para. 331.

producer/exporter.
759 Thus, it seems clear, and previous panels have concluded, that an investigating
authority is entitled to consider all imports attributable to a producer found to be dumping as "dumped
imports" in its analysis of injury.760
7.624 There is no dispute between the parties as to the relevant facts. The EC calculated a de
minimis margin of dumping for Nordlaks,761 and found that the amount of the definitive anti-dumping
duty for Nordlaks shall be 0.0 per cent. 762 In its analysis of volume, price effects, impact on domestic
producers, and causation, the EC considered all imports from Norway to be dumped, including
imports attributable to Nordlaks. Thus, Norway's claim in this case raises the question, not previously
resolved by any panel or the Appellate Body, whether imports for which a finding of de minimis
dumping margins is made may be treated as "dumped imports" for purposes of injury analysis.763
7.625 We consider that imports attributable to a producer or exporter for which a de minimis
margin of dumping is calculated may not be treated as "dumped" for purposes of the injury analysis in
that investigation. Article 5.8 of the AD Ag reement provides that there shall be "immediate
termination in cases where the authorities determine that the margin of dumping is de minimis". Thus,
it is clear that no anti-dumping duties can be impos ed on such imports. In our view, a finding of de
minimis dumping margins is a finding that there is no legally cognizable dumping by the producer or
exporter in question. If there is no legally cognizable dumping by a particular producer or exporter, as
a result of a finding of de minimis margins, then it seems inescapable to us that imports attributable to
such producer or exporter may not be treated as "dumped" imports for any aspect of that investigation.
In our view, it would be illogical to treat such imports as "dumped" imports for purposes of the injury
determination, when they cannot be consider ed as "dumped" for purposes of imposition of anti-
dumping duties as a result of the investigation.
7.626 As noted above, this specific issue has not b een resolved by any previous panel or the
Appellate Body, but a number of panels have made statements suggesting that the answer to this
question is as we have concl uded. Thus, the Panel in EC-Bed Linen, observed, with respect to a
producer for which de minimis margins were calculated that "i mports attributable to such a
producer/exporter may not be considered as "dumped" for purposes of injury analysis."
764 T h e
subsequent EC – Bed Linen (Article 21.5 – India) Panel similarly commented that "the question of
which imports are to be considered dumped is readily answered – 'dumped imports' are all imports
attributable to producers or exporters fo r which a margin of dumping greater than de minimis is
calculated."
765 The Panel in Argentina – Poultry agreed with these statements, finding that "the term
"dumped imports" refers to all im ports attributable to producers or exporters for which a margin of

759 Panel Report, EC – Bed Linen, para. 6.114, Appellate Body Report, EC – Bed Linen, para. 51.
760 Panel Report, EC – Bed Linen, para. 6.136.
761 Definitive Regulation, Recitals 32-33.
762 Definitive Regulation, Article 1, para. 3.
763 We note the EC's contention that whether Nordlaks' imports were excluded from the volume of
dumped imports would not have made any significant difference on the facts of this case. Essentially, this is an
allegation of harmless error, which is not cognizable in our evaluation of the investigating authority's
determination. See, EC, FWS, para.352. Moreover, as we discuss above, Norway's claim raises a question of
legal interpretation, which must be addressed before any consideration of the facts may be undertaken. If we
conclude that imports from producers with a de minimis margin of dumping may not be treated as dumped
imports for purposes of the injury analysis, then the vo lume of such imports is irrelevant. Conversely, the
volume of imports can have no relevance in our analysis of the legal question. Since we do not consider the
evidence concerning the volume of imports attributable to Nordlaks to be relevant to our analysis, we do not
consider the information in Exhibit EC-12, relied on in this regard by the EC. See also, paras. 7.835 - 7.860.
764 Panel Report, EC – Bed Linen, para. 6.138.
765 Panel Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen
from India – Recourse to Article 21.5 of the DSU by India ("EC – Bed Linen (Article 21.5 – India)") ,

dumping greater than de minimis has been calculated." 766 These statements lend support to our
conclusion that imports for which a de minimis margin of dumping is calculated may not be treated as
dumped for purposes of analysing injury.
7.627 The EC recognizes that the consequence of a finding of de minimis dumping is that no duties
may be applied to the imports in question, as it has stated that it does not, as a matter of policy,
impose anti-dumping duties on imports from producers with a de minimis margin.767 T h e E C ,
however, argues that the non-imposition of duties is a different issue from the question whether a
company with a de minimis margin of dumping is in fact dumping and injuring the domestic
industry.768 In the EC's view, while the inclusion of imports from companies with de minimis margins
in the volume of "dumped" imports for injury analys is may, in some cases, be inappropriate, this was
not such a case, and the exclusion of imports attributable to Nordlaks would not have had any
significant effect on injury analysis. 769 We do not agree with the EC's view that the injury analysis is
"a distinct part of the anti-dumping action a nd has to be considered on its own merits". 770 We can
conceive of no rational basis on which the imports which are not legally cognizable as "dumped"
because a de minimis margin has been calculated for the producer/exporter in question could be
included in the volume of dumped imports taken into account in assessing the question of injury. In
our view, the consequences from a determination that there is no le gally cognizable dumping must be
taken into account in the injury analysis.
7.628 Moreover, whether it is permissible to treat imports for which a de minimis margin is
calculated as dumped for purposes of injury analys is when no anti-dumping duties can be imposed on
them is not, in our opinion, a question of fact to be addressed on the basis of the circumstances in
different investigations. Rather, we consider that the issue raises a question of interpretation of the
term "dumped imports". We consider that an in terpretation of "dumped im ports" in Article 3 which
would allow an investigating authority to includ e in the volume of dumped imports for purposes of
injury analysis imports attributable to a producer/exporter for which a de minimis margin has been
calculated is impermissible. As noted above, Artic le 5.8 requires termination of the investigation
upon a determination of de minimis margins for imports from a particular foreign producer or
exporter, and thus leads to the conclusion that ther e is no legally cognizable dumping. A consistent
interpretation of the term "dumped" requires th at such imports be excluded from the "dumped
imports" considered in the analysis of injury (and causation, of course). We therefore conclude that
the EC acted inconsistently with Articles 3.1 and 3. 2 by treating imports attributable to Nordlaks as
dumped in its injury analysis.
7.629 The second of Norway's claims with respect to the volume of dumped imports concerns the
treatment of imports attributable to producers/e xporters who were not individually examined in
making the dumping determination ("unexamined exporters") as "dumped imports" for purposes of
the injury determination under Article 3. Norway argues that an investigating authority may treat
imports from unexamined exporters as dumped in its injury determination if there is evidence to
support extrapolating from the selected examined producers to all imports, but asserts that the facts
preclude such treatment in this investigation. No rway's argument is rooted in the fact that the
enterprises selected for individual examination by the investigating authority for dumping consisted
exclusively of Norwegian producers who also e xported ("exporting producers"), while many of the
unexamined exporters were exclus ively exporters ("non-producing exporters"). Norway argues that
findings of dumping for the examined exporting producers may not be relied upon as evidence as to
whether imports from unexamined non-producing e xporters were dumped, as the business activities,

766 Panel Report, Argentina – Poultry Anti-Dumping Duties, para. 7.303
767 The EC refers to this as a "long-standing EC policy". EC, Answer to Panel Question 34, para. 157.
768 EC, Answer to Panel Question 34.
769 EC, FWS, para. 352.
770 EC, Answer to Panel Question 34.

cost structures, and pricing of these two groups are different. The EC, on the other hand, argues that
extrapolation from the findings of dumping for the ex amined producers to all imports was appropriate
in this case. The EC asserts th at all examined producers were found to be dumping, a finding which
covered 30 per cent of total imports from Norway, and maintains that this alone is sufficient to
extrapolate to all imports. In addition, the EC asserts that other evidence supported the conclusion
that imports from unexamined exporters were dumped, in cluding the fact that, pursuant to Article 6.8,
all imports from non-cooperating companies were f ound to be dumped. The EC points specifically to
Exhibit EC-10, which it argues shows that price levels of the examined producers were very similar to
those of the unexamined producers.
771
7.630 Norway's argument in this regard is based on the same facts as its claim of error in the EC's
decision to include in the limited examination only exporting producers, and not exporters that did not
also produce salmon. We have found elsewhere in our report that the EC did not err in this regard
and that therefore the selection of the companies was not, for that reason, inconsistent with
Article 6.10 of the AD Agreement.
772 In our view, the fact that a number of the unexamined
producers were non-producing exporters does not undermine the relevance of the findings of dumping
for the examined producers as evidence that imports from unexamined producers are dumped for
purposes of the injury analysis. 773 The purpose of limited examination in an anti-dumping
investigation is to allow an investigating authorit y to draw conclusions about dumping for all foreign
producers and exporters on the basis of a detailed examin ation of less than all of them. In our view, if
the selection for limited examination is made cons istently with the AD Agreement, then the
investigating authority may treat the findings of dumping made with respect to that group of
companies as evidence of dumping by all unexamined companies, regardless of possible differences
between some or all of them and the examined companies. To do otherwise would limit the utility of
Article 6.10 of the AD Agreement, as it would requi re the investigating authority to gather and
consider information for unexamined producers, which it would not otherwise do as a result of a
decision to conduct a limited examination, in order to be able to make individual judgments as to
possible differences between the examined producers and unexamined exporters. In our view, there is
no obligation to consider facts concerning the individual operations of unexamined exporters per se in
order to decide the extent to which findings for the examined producers may be relied upon in
drawing conclusions concerning whet her imports attributable to une xamined exporters are dumped.
Moreover, in our view, it would be illogical to acce pt the principle that conclusions about dumping
can be based on the examined companies for purposes of the imposition of anti-dumping duties on
unexamined companies, but not accept that those same conclusions about dumping may serve as
evidence that imports attributable to unexamined exporters are dumped in the same investigation.
7.631 The question of treatment of imports attributable to unexamined producers was addressed by
the Appellate Body in the EC - Bed-Linen implementation dispute. In implementing the original
Panel and Appellate Body decisions in the EC - Bed Linen dispute, the EC re-examined the dumping
determinations for examined producers, and found th at three of the five producers examined were
dumping, and two were not. The producers found not to be dumping accounted for 53 per cent of
total imports of the five examined producers. In its injury analysis in the implementation context, the
EC excluded the imports attributable to the tw o non-dumping producers from the volume of dumped

771 Norway contests the propriety of this Exhibit, No rway First Oral Statement at para. 111, asserting
that it contains information that the EC cannot demonstrate was before the investigating authority, was not made
available under Article 6.4, was not disclosed under Article 6.9, and was not identified or mentioned in the
published determinations, and supports impermissible ex post explanations for the EC's determination. We deal
with these objections separately, at section VII.J.4, below.
772 See, para. 7.181.
773 In fact, in a case where, as here, the unexamin ed exporters source their exports from producers for
which determinations of dumping were made, as they do not, themselves, produce the product they export, we
can see no reason why those determinations of dumping would not be compelling evidence that the exports by
non-producing exporters are dumped. See, footnote 339

imports in its injury analysis, but included all impor ts attributable to producers which were not in the
group selected for limited examination. The Panel concluded that this was permissible.774
7.632 The Appellate Body reversed. The Appellate Body noted that there was no specified
methodology for determining the volume of dumped imports, but stated that any such methodology
must be based on positive evidence and an objective examination of relevant evidence. The Appellate
Body concluded that the fact that producers accounti ng for 47 per cent of total imports attributable to
examined producers were found to be dumping was not a sufficient basis to justify treating imports
from unexamined producers/exporters as dumped for purposes of the injury analysis. The Appellate
Body determined that an objective examination of that evidence alone could not lead to the conclusion
that imports from unexamined producers were dumped,
775 and concluded that there must be other
evidence to justify treating imports from unexamine d producers as dumped for purposes of the injury
investigation.776 While a calculation of dumping margins for each individual producer/exporter was
clearly not required, as Article 6.10 permitted limite d examination, the Appellate Body considered
that other evidence could be relied upon in dete rmining whether imports from unexamined producers
were dumped imports.777
7.633 We are troubled by the Appellate Body's decision in this regard. The Appellate Body's report
indicates that an investigating authority may consider "different and additional evidence" to evaluate
whether imports from unexamined producers are dumpe d for purposes of injury analysis. In this
regard, the Appellate Body's Report refers to ev idence "such as witness testimony and different types
of documentary evidence about critical aspects of the market, conditions of competition, production
characteristics, and statistical data relating to the volume, prices, and effects of imports" as evidence
that may form part of the evidence an inv estigating authority may take into account "when
determining, on the basis of an "objective examin ation" whether or not imports from non-examined
producers are being dumped." 778 However, Article 2.1 of the AD Agreement makes clear that "a
product is to be considered as being dumped" only if the export price is less than the normal value,
and establishes detailed rules for that calculation. The Appellate Body has, in the context of sunset
reviews, found that a determination of likelihood of dumping based on a dumping margin calculated
using a methodology inconsistent with Artic le 2 of the AD Agreement is unacceptable. 779 Thus, it is
unclear to us how such "other evidence" can pr ovide a legally sound basis for a conclusion that
imports attributable to unexamined producers are dumped. In our view, the fact that imports from
unexamined producers are, under the AD Agreement, recognized as dumped for purposes of the
imposition of anti-dumping duties, and that those duties may be collected in amounts limited by
calculations made pursuant to Article 2 of the AD Agreement, does establish a legally sound basis for
the treatment of those imports as dumped for purposes of the injury analysis.
7.634 Moreover, while the Appellate Body found, in EC- Bed Linen , that in a case where not all
examined producers are found to be dumping, an inv estigating authority must consider other evidence
in deciding the extent to which imports from unexamined producers may be treated as dumped for
purposes of injury analysis, we do not see why the opposite should also be the case. That is, we see
no reason why, if all examined producers are found to be dumping, an investigating authority should
be required to consider "other evidence" that mi ght indicate that imports from some unexamined

774 Panel Report, EC-Bed-Linen (Article 21.5-India), para. 6.144.
775 Appellate Body Report, EC-Bed-Linen (Article 21.5-India), para. 132.
776 Appellate Body Report, EC-Bed-Linen (Article 21.5-India), para. 124. In that case, the EC had
proffered no evidence, other than the determination with respect to the sampled producers, with respect to the
question of dumping by unexamined exporters, and thus the Appellate Body did not go on to consider the
whether there was a sufficient basis for the treatment of imports from unexamined producers as dumped.
777 Appellate Body Report, EC – Bed-Linen (Article 21.5-India), para. 129 and fn. 162.
778 Appellate Body Report, EC – Bed-Linen (Article 21.5-India), para. 129 and fn. 162.
779 Appellate Body Report, US – Corrosion Resistant Steel Sunset Review, para. 130.

producers are not dumped. This would again undermine the utility of Article 6.10, as it would require
the investigating authority to c onsider evidence concerning companies not included in the limited
examination. In our view, a finding that all impor ts attributable to examined producers are dumped
may be treated as evidence that all imports attrib utable to unexamined producers are dumped for
purposes of the injury analysis without a further examination of the nature of the operations of
examined and unexamined producers.
780 Of course, in this case, the EC erred in concluding that all
examined producers were dumping, as we have fou nd above that the EC erred in treating imports
from Nordlaks as "dumped imports". We have also found that the EC erred in the determination of
the companies to be included in the group examined. Thus, not all examined sampled producers were
found to be dumping, and to the extent that the EC extrapolated to all imports on the basis of a
conclusion that all imports attributable to the examined producers were dumped, it erred.
7.635 Finally, we note the EC's argument that th ere was other evidence relied upon in determining
the treatment of imports attributable to unexami ned exporters as dumped. We can, however, discern
nothing on the face of the Provisional or Definitive Regulation which supports the EC's argument that
other evidence was considered at the time, or that any analysis was undertaken as to whether imports
attributable to unexamined exporters were dumped. There is no reference to any consideration of
other evidence or any discussion of whether to treat imports from unexamined producers as dumped.
Paragraph 40 of the Provisional Regulation, cited by the EC in this regard, relates to the calculation of
the dumping margin to be applied to "non-cooperating companies".
781 However, the mere fact of
calculating a dumping margin to be applied to im ports from these companies does not, in our view,
demonstrate that the investigating authority cons idered, on the basis of that calculation, whether
imports attributable to those companies were dump ed for purposes of injury analysis. The EC also
refers to Exhibit EC-10 in this regard. However, there is no indication that this information was
considered by the investigating authority in or der to justify a conclusion that all imports from
unexamined exporters were dumped for purposes of the injury determination, and we have not taken it
into account in our analysis.782
7.636 Therefore, we conclude that that the EC erre d in treating imports attributable to a company
for which a de minimis margin was calculated as dumped, and further erred in treating all imports
from unexamined producers and exporters as dumped, in the context of its injury determination. As a
result, the EC acted inconsistently with Articl es 3.1 and 3.2 in considering the volume of dumped
imports. We do not consider it necessary to address Norway's consequential claim of violation of
Article 3.5, which is based on the same considera tions addressed above. A finding of violation of
Article 3.5 would add nothing to the resolution of this dispute, nor would it aid in any potential
implementation, and therefore the exercise of judicial economy in this respect is warranted.
(b) Price undercutting and price trends
7.637 Norway's claims concerning the EC's ex amination of price undercutting are under
Articles 3.1, 3.2, and 3.5 of the AD Agreement. Artic le 3.2 is at the core of Norway's argument, so
we begin by considering the text of that provision, which states, in pertinent part:
"With regard to the effect of the dumped imports on prices, the investigating
authorities shall consider whether there has been a significant price undercutting by

780 Moreover, a finding that all sampled producer/exporters were dumping is persuasive evidence of
dumping by unexamined non-producing exporters, who are presumably exporting the products produced by the
sampled companies found to be dumping.
781 Defined as "exporters in Norway which did not cooperate or did not make themselves known" to the
782 We note that we have, elsewhere in our report, declined to exclude Exhibit EC-10 from
consideration in this dispute. See para. 7.846.

the dumped imports as compared with the price of a like product of the importing
Member, or whether the effect of such imports is otherwise to depress prices to a
significant degree or prevent price increases, which otherwise would have occurred,
to a significant degree. No one or several of these factors can necessarily give
decisive guidance."
7.638 It is clear that the text of Article 3.2 provides no methodological guidance as to how an
investigating authority is to "consider" whether th ere has been significant pr ice undercutting. It is
also clear that while the question of significant price undercutting must be considered, a finding of
significant price undercutting is not necessary to a findi ng that dumped imports have had an effect on
prices. In our view, price undercutting may be demonstrated by comparing the prices of the like
product of the domestic industry with the prices of the dumped imports, as the EC did in this case.
Where the prices of imports are lower than the domestic prices, it seems clear to us that there is, as a
factual matter, price undercutting. The significance of any such undercutting would, in our view, be a
question of the magnitude of such price difference, in light of other relevant information concerning
competition in the domestic market between the impo rts and the domestic product, the nature of the
product, and other factors. It is in this context that the question of a price premium may be relevant.
7.639 Where, as here, the investigating authority has found that the domestic product benefits from
price premium over the imports, it s eems to us that a conclusion of significant price undercutting
could not be reached by an objective investigating au thority without some consideration of that price
premium. The EC suggests that, having referred to the price premium in the General Disclosure
Document, it "might have actually considered and examined the effect of the price premium and,
having found that it was not a factor which coul d affect its price undercutting analysis, did not
mention it in the Definitive Regulation."
783 The EC then goes on to explain why, in its view, the
existence of a price premium is irrelevant to the analysis of price undercutting, and can only be taken
into account when considering the injury margin, as it purports to have done in this case.
7.640 Even assuming the EC is correct in its views c oncerning the irrelevance of a price premium,
we can see nothing in either the General Disclos ure Document or the Definitive Regulation which
would indicate that the investigating authority actua lly considered whether, much less found that, the
price premium was not a factor which could affect the price undercutting analysis. The General
Disclosure Document identifies the price premium as "up to a maximum of 12 per cent", and
concludes that this price premium should be take n into account in establishing the injury margin.
784
There is no further discussion of the price premium by the investigating authority, and the EC has
brought nothing before the Panel indicating that th e investigating authority considered the relevance
of the price premium and concluded that it could not affect the price undercutting analysis. Merely
that the price premium was taken into account in calculating the injury margin does not demonstrate
that it was considered and deemed irrelevant to the evaluation of price undercutting. Having identified
the existence of a price premium for the domestic product over the imports, we consider that an
unbiased and objective investigating authority could not conclude, without explanation, that such
price premium had no bearing on the issue of whether there was significant price undercutting. Thus,
the investigating authority's finding of significan t price undercutting is no t consistent with the
requirements of Articles 3.1 and 3.2.
7.641 Similar considerations govern our evaluation of Norway's arguments with respect to the
adequacy and objectivity of the EC's consideration of price trends. Again, in light of the lack of
guidance in the AD Agreement on criteria or methodology for an evaluation of price trends, there is
no basis to conclude that the assessment of price trends in Euro is per se inconsistent with Articles 3.1
and 3.4. As with price undercutting, the price trends, whether calculated in Euro or pounds, are not

783 EC, FWS, para. 358.
784 Exhibit NOR-67, para. 122.

themselves decisive. Rather, they are relevant to an assessment of the condition of the domestic
industry, and the issue of causation.
7.642 We are not persuaded by Norway's argument that an investigating authority is obligated to
consider price trends in the "operating currency" of the domestic industry, which it alleges in this case
to be pounds sterling. Domestic industries in the EC may operate in one or more of the currencies
circulating in the EC. We can see no basis in the AD Agreement for the conclusion that the
investigating authority must determine, for individual producers in the domestic industry, which is the
"operating currency", and examine all aspects of the in jury analysis in that currency. While in a
particular case, this might be possible, if all dom estic producer operate in the same currency, that
possibility does not justify the conclusion that such analysis is required. As we have discussed
elsewhere in our findings, the assessment of injury to the domestic industry is not based on separate
examination of the individual members of that indu stry. Thus, it seems reasonable to us that an
investigating authority would select a single currency in which to undertake its analysis. So long as
that analysis is unbiased and objective, and based on positive evidence, we see no reason to disallow
it. The investigating authority in this case considered all the relevant information in Euros, thus on a
consistent basis.
7.643 We are unwilling to conclude that the requireme nt to consider positive evidence necessarily
entails the conclusion that the only proper basis for an analysis of pr ice trends is information in the
same currency as the normal record-keeping of indi vidual companies in the domestic industry. We
simply cannot conclude that such detailed met hodological rules can be, or were intended to be,
derived from the general prescriptions in Article 3.1, and the relevant factors addressed in Articles 3.2
and 3.4 of the AD Agreement.
7.644 We do consider, however, that whatever dete rminations are made by an investigating
authority, and whatever information is relied upon in making those determinations, must be carefully
considered, and the conclusions ade quately explained. Norway argues that the consideration of price
trends in Euro masked the true situation of the domestic industry in this case,
785 and that this argument
was made to the investigating authority during the investigation. 786 We can find no indication that the
investigating authority even considered the possibi lity that price trends in Euro might not paint a
relevant and accurate picture of the situation facing the domestic industry. Particularly where an issue
like this has been brought to the attention of the in vestigating authority by interested parties, the
failure to address it in any way leaves us unable to c onclude that the determination made with respect
to price trends was one that could be reached by an unbiased and objective investigating authority.
7.645 Thus, while we do not find any obligation for an investigating authority to choose one
currency over another in conducting its examination of the information before it, there is an obligation
to explain the relevance of the information to the de terminations made. Particularly where, as in this
case, arguments are made by parties that the currenc y used in the analysis may make a difference to
that analysis, it would seem imperative that the inve stigating authority consider and resolve the issue
before it makes factual findings based on the info rmation before it. Thus, a failure by the
investigating authority to even address the parties' arguments, and to resolve them, leaves us unable to
conclude that the investigating authority's findi ng of declining prices is consistent with the
requirements of Articles 3.1 and 3.4.
7.646 Therefore, we conclude that the EC's examination of the volume of dumped imports and price
undercutting were not consistent with Articles 3.1 and 3.2 of the AD Agreement and its examination
of price trends was not consistent with Articles 3.1, 3.2, and 3.4 of the AD Agreement. In the absence

785 It is equally possible that converting all relevant data, including import prices, into pounds sterling,
might mask the true situation of the domestic industry.

of adequate explanations for th e findings on these factors based on the information before the
investigating authority at the time, relied upon by the investigating authority in finding injury, we
conclude that the finding of injury was not one that could be made by a reasonable investigating
authority on the basis of the facts and arguments before it. We do not consider it necessary to address
Norway's consequential claims of violation of Article 3.5, which are based on the same considerations
addressed above. A finding of violation of Article 3.5 would add nothing to the resolution of this
dispute, nor would it aid in any potential implementation, and therefore the exercise of judicial
economy in this respect is warranted.
H. A
LLEGED INCONSISTENCY OF THE EC'S CAUSATION DETERMINATION
1. Arguments of the Parties
(a) Norway
7.647 Norway argues that the EC violated Articles 3.1 and 3.5 of the AD Agreement in its causation
determination by failing to ensure that injury caused by two other known factors – (1) the EC
producers' increased costs of production, and (2) surging imports from Canada and the United States –
were not improperly attributed to dumped imports . Norway asserts that Article 3.5 requires an
investigating authority to establish that there is a "genuine and substan tial" causal relationship
between the dumped imports and th e domestic industry's injury, 787 and that in establishing the
existence of this relationship, Article 3.5 requires the investigating authority to avoid attributing injury
to dumped imports that is, in fact, caused by other factors.
7.648 With respect to increased costs of production, Norway argues that the EC failed to address the
argument that EC producers failed to reduce costs of production, and that those costs were a cause of
injury to the domestic industry. Norway argues that the EC did not adequately examine developments
in the EC industry's costs of production and that its analysis masked the fact that the domestic
industry's costs of production rose significantly during the period considered, by examining price
trends in euros, instead of pounds sterling, the re levant currency for the sampled producers. Norway
maintains that because unit sales prices were constant in pounds sterli ng, while sales volumes
increased by 7 per cent, the sampled producers' re venues must have increased during the period
considered. However, during that same period, the profitability of the EC producers turned from
positive to negative. For Norway, this suggests th at losses sustained by the EC industry were caused
by an increase in costs of production that outst ripped the industry's increased revenues. Norway
asserts that these increased costs were attributable, at least in part, to the efforts of three of the five
sampled producers to transition to organic farming. Norway asserts that, if the EC industry's costs of
production had not increased significantly during th e period considered, the industry would have
continued to make profits in poun ds sterling. Norway asserts that the EC did not even acknowledge
that the evidence showed that the EC producers' costs had increased considerably, did not assess the
injurious effects of this development, and did no t "separate and distinguish" these injurious effects
from those attributable to dumped imports.
7.649 With respect to the increased imports from the United States and Canada, Norway notes that
during the period investigated, the EC industry's mark et share declined from 2.98 to 2.77 per cent,
while imports from all countries other than Norway rose from 15.5 to 19.4 per cent.
788 The market
share of imports from Canada and the United Stat es rose from a combined market share of 1.0 per

787 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada) , para. 132; see also
Appellate Body Report, United States – Definitive Safeguard Measures on Imports of Wheat Gluten from the
European Communities ("US – Wheat Gluten"), WT/DS166/AB/R, adopted 19 January 2001, DSR 2001:II, 717,
para. 69.
788 Provisional Regulation, Recital. 94 (Table 11).

cent, to 5.1 per cent, more than the EC industry's market share. In volume terms, Norway notes that
imports from Canada and the United States we re 31,564 ton during the period investigated,
significantly more than the production of the EC industry (22,000 tons)
789. Finally, Norway notes that
the prices of imports from Canada were 36 per cent lower than the EC price, and the prices of imports
from the United States were 39 per cent lower than the EC price. Thus, Norway maintains that
imports of salmon from Canada and the United States had the capacity to cause ma terial injury to the
domestic industry. Norway argues that the EC di smissed the significance of this information, and
specifically of the 560 per cent increase in imports from the Canada and the US, on the grounds that
these imports consisted mostly of wild salmon, wh ich, the EC found, did not compete with farmed
salmon. Norway maintains that the EC offers no f acts in support of these conclusions. Moreover, the
EC import statistics do not separate farmed and wild salmon.
790 Thus, Norway argues, there was no
basis for the EC to conclude that the surge in impor ts consisted of wild salm on. In addition, Norway
asserts that evidence in the record contradicts the EC's conclusion that farmed and wild salmon do not
compete. Thus, Norway maintains that the EC erred in dismissing Canadian and US imports as an
"other factor" causing injury to the domestic industry.
(b) European Communities
7.650 With respect to Norway's claims under Article 3.5, the EC notes that the AD Agreement does
not address how an investigating authority is to assess and "separate and distinguish" the injurious
effects of dumped imports and other factors. The EC cites in this regard the decision of the Appellate
Body stated in US – Hot-Rolled Steel:
"We emphasize that the particular methods and approaches by which WTO Members
choose to carry out the process of separati ng and distinguishing the injurious effects
of dumped imports from the injurious eff ects of the other known causal factors are
not prescribed by the Anti-Dumping Agreem ent. What the Agreement requires is
simply that the obligations in Article 3.5 be respected when a determination of injury
is made
."791
The EC asserts that what matters in the present ca se is whether the EC made a proper assessment and
evaluation of the specific facts of this case. Th e EC notes that it examined at least seven known
factors besides the volume of dumped imports and their effect on the state of the EC industry, and that
Norway challenges its assessment of only two of these.

7.651 The EC asserts that it did consider and address th e question of EC producer costs, referring to
paragraph 108 of the Provisional Regulation. Th e EC maintains that it considered the production
costs of both Norwegian and EC producers, and f ound that Norway enjoyed advantages in relation to
certain costs and the EC producers enjoyed advantages in relation to other costs, but that there were
no significant differences, and that both suffered lo sses. Thus, the EC maintains that it properly
considered whether the EC industry's production costs were an other factor causing injury. In
addition, the EC argues that Norway has failed to make a prima facie case that the domestic industry's
production costs increased and thus contributed to inju ry. The EC points out that Norway refers to an
increase of 14.9 per cent, but that this is calculated in pounds sterling, not the euro basis used by the
EC – in euros, the increase in production costs w as only 5.2 per cent. The EC notes that Norway's
argument is counterfactual, asserting that if the EC industry's costs had not increased, it would have
continued to make profits.
792 The EC points out that Norway has not given any reason to suggest that
production costs should not have increased, and in the absence of such an argument, the facts

789 Definitive Regulation, para. 38.
790 Provisional Regulation, Recital. 96.
791 Appellate Body Report, US – Hot-Rolled Steel, para. 224.
792 Norway, FWS, para. 586.

demonstrate that EC producers' costs did increase, a nd profits turned to losses. The EC also notes
that it found no significant differences between the pr oduction costs of the EC industry in comparison
with Norwegian producers. Consequently, the EC ma intains that Norway has not established that the
EC did not properly examine the developments in production costs of the EC industry, and has not
established that those developments caused or could have caused injury to the EC domestic industry.
7.652 The EC asserts that Norway's argument concer ning the examination of imports from the US
and Canada rests on an interpretation of Article 3. 5 of the AD Agreement requiring that the evidence
underlying every factual finding be cited, and that failure to do so makes any assessment of such facts
a violation if Article 3.5 of the Anti-Dumping Agr eement. The EC maintains that there is no support
for such an extreme interpretation of Article 3.5. The EC argues that the considerations set out by the
Appellate Body in US - Softwood Lumber VI (Article 21.5-Canada) 793 and relied upon by Norway
relate to the analysis of conflicting evidence, while in this case, the EC investigating authority was not
faced with conflicting evidence. In the absence of any legal requirement to explain each factual
finding, the EC maintains that Norway's claim must fail.
7.653 The EC goes on to argue that Norway did not make a prima facie case that the EC
determinations were incorrect. The EC first states that, in the course of judicial challenges to the
measure, it discovered what it calls a "technical e rror" in the Provisional Regulation, concerning the
volume of imports of salmon from the US and Canada , and provides, in Exhibit EC-15, the corrected
information. The EC asserts that the corrected in formation shows that imports from the US actually
decreased by 15 per cent, as did the market share of US salmon (from 5.2 per cent to 4 per cent).
While imports from Canada increased from 2705 tonn es to 6940 tonnes (from 0.5 per cent to 1.1 per
cent of market share), the EC asserts that these are negligible (referring to Article 5.8 of the Anti-
Dumping Agreement). As a result, the EC argues that decreased imports from the US and Canada had
a very little, effectively zero capacity to cause any injury to the EC domestic industry. The EC also
argues that the error in the original data did not a ffect the assessment by the investigating authority of
the effect of imports of salmon from the United States and Canada, which was based principally on
the fact that the majority of those imports were of wild salmon, which does not compete with farmed
salmon. The EC asserts that Norway has not challenge d this conclusion, but rather attacks the EC for
failing to explain what evidence supports it. The EC points out that Norway has not adduced any
evidence that would contradict that conclusion, and maintains that the fact that the imports of salmon
from the US and Canada consist of wild salmon are largely known, i.e. are industry knowledge,
confirmed by publicly available data and by the No rwegian government itself. Similarly, the EC
maintains that Norway has failed to demonstrate e rror in the conclusion that farmed and wild salmon
are not interchangeable.
2. Evaluation by the Panel
7.654 As discussed above, we have found that the EC 's approach to defining domestic industry in
this case resulted in an investigation concerning a domestic industry that did not comport with the
definition set forth in Article 4.1. As was the case in the context of injury, it is clear to us that the EC
analyzed the wrong industry in considering the i ssue of causation. Nonetheless we consider it
appropriate to make findings regarding Norway's claims. The claims regarding the investigating
authority's consideration of "other factors" causing injury, albeit with respect to a wrongly defined
domestic industry, are therefore addressed below.
7.655 We recall that it is our task to undertake a careful scrutiny of the EC's determination to assess
whether the conclusions therein could be reached by an unbiased and objective decision maker, taking
into account the facts that were be fore the investigating authority, and in light of the explanations
given.

793 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), para. 97.

7.656 Turning to the substance of Norway's claims, Norway argues that the EC failed to consider
the allegedly injurious impact on the domestic indus try of two "known factors" - increased production
costs, and imports of salmon from the United States and Canada – as possible causes of injury to the
domestic industry, as required by Article 3.5 of the AD Agreement, which provides in pertinent part:
"The authorities shall also examine any known factors other than the dumped imports
which at the same time are injuring the domestic industry, and the injuries caused by
these other factors must not be attributed to the dumped imports."
Previous panel and Appellate Body decisions make it clear that while an investigating authority is
required to consider the effects of other factors known to the investigating authority which may be
causing injury to the domestic industry, there is no required method of analysis in undertaking that
examination.
794

7.657 Norway argues that the EC industry experien ced significant increases in per unit costs of
production, which explains why, despite an increase in sales volumes, and constant prices (measured
in pounds sterling) the domestic industry incurred losses. Thus, Norway argues, had the industry's
costs of production not increased during the period, it would have been profitable, and thus, the
increase in costs was an important cause of injury to the domestic industry. Norway asserts that this
argument was raised by interested parties during the investigation,
795 and that the EC acknowledged
this when it noted that interested parties had c ontended that the failure of the domestic industry to
reduce costs had contributed to injury. 796 However, Norway contends that the EC failed to address
this issue.
7.658 The EC does not dispute that the domestic industry's costs increased, 797 although it does
dispute the magnitude of that increase. Norway calculated the increase in pounds sterling as 14.9 per
cent, and in Euros as 5.2 per cent. 798 The EC does not dispute these figures, but maintains that the
proper calculation is in Euros, and that the increases in the cost of production "are less significant" on
that basis.799 We note, however, that there is no mention of the increase in production costs, in either
currency, in either the Provisional or Definitive Regulation, and no discussion of the significance of
that increase.
7.659 Rather, what is in the Regulations is a discussion of the effect of "smaller less efficient
producers in the EC and high costs of production" – that is, a comparison between Norwegian salmon
farmers' costs, and the EC industry's costs.
800 Based on a comparison, the EC found that while
Norwegian producers had certain cost advantages, th e EC industry had certain other advantages, that
both were incurring significant losses, and that ther efore the argument that EC producers were less
efficient "was not substantiated and that this could not be cause of" injury. 801 In our view, this
analysis simply does not address the argument that an increase in the EC industry's costs was a cause
of the losses incurred by the industry.
7.660 The EC asserts that Norway has failed to make a prima facie case with respect to its argument
that increased costs were a cause of injury to the EC industry, and that in order to do so, Norway

794 Appellate Body Report, US – Hot-Rolled Steel, para. 178, Appellate Body Report, EC – Tube or
Pipe Fittings, para. 189, Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 154.
795 Norway, FWS, para. 582.
796 Norway, FWS, para. 581; Provisional Regulation, Recital 108.
797 EC, FWS, para. 413 ("it has been established that the production costs did increase.")
798 Norway, FWS, para. 585, Table 7.
799 EC, FWS, para. 411.
800 Provisional Regulation, Recital 108, Definitive Regulation, Recital 99.
801 Provisional Regulation, Recital 108, Definitive Regulation, Recital 99.

would have to explain to the Panel why it believes costs should not have increased as they did.802 We
do not agree. Norway has demonstrated that the fa cts before the investigating authority showed that
EC industry production costs increased, and that it was argued to the investigating authority that that
increase in costs caused injury. The Provisiona l and Definitive Regulations do not address this
contention. The EC has not brought forward any information that was before the investigating
authority or analysis on this issue. In the absence of consideration of this argument, the EC has not
demonstrated that an objective and unbiased inve stigating authority coul d have concluded that
increased production costs were not causing injury to the domestic industry, and therefore that injury
caused by this factor was not attributed to dumped imports. In these circumstances, our view is that
Norway has demonstrated that the EC failed to comply with Article 3.5 of the AD Agreement.
7.661 With respect to the EC's consideration of imports from the US and Canada, Norway has
challenged the EC's submission of exhibit EC-15, which presents "corrected" information on the
volume of imports from the United States.
803 Norway asserts that the EC has acknowledged that the
information post-dates the imposition of the measur e, and thus was not before the investigating
authority at the time it made its determination. No rway also asserts that the analysis presented by the
EC on the basis of this information is different from that relied on in the Provisional and Definitive
Regulations, and thus constitutes an impermissible ex post rationalization. The EC does not dispute
that the information in these two exhibits was corrected after the Definitive Regulation was
published, but rather argues that the correction of th e data in question "does not affect the outcome of
the determination", and asks us to take that into consideration in making our findings.804
7.662 We decline to consider the "corrected" information on the volume of US imports presented in
Exhibit EC-15 (and the information in EC-14). Ar ticle 17.5(ii) of the AD Agreement provides that a
panel shall examine the matter before it "based upon .. . the facts made available in conformity with
appropriate domestic procedures to the authorities of the importing Member." It is clear, and the EC
does not dispute, that the facts set out in the Exhibits were not available to the investigating authority
at the time it made its determination. Indeed, it is clear that the investigating authority cited and relied
upon different facts concerning the volume of impo rts from the United States, and the consequent
information on rate of increase and changes in market share. We cannot, therefore, take into account
the information in Exhibits EC-14 and EC-15 in our analysis of the EC's determination, as to do so
would effectively require us to make our own findings on the basis of new evidence. This is clearly
precluded by the applicable standard of review.
805
7.663 Norway asserts that the EC erred in concluding that it was "unlikely that imports from [the
United States and Canada] could have had a si gnificant impact on the situation of the [EC]
industry."806 Norway argues that this conclusion was based on factual findings which are deficient,
as there is no reference to any evidence in support of findings that the majority of salmon imports
from Canada and the US are of wild salmon, and th at wild and farmed salmon do not compete. Thus,
Norway argues, the EC failed to properly assess the injurious effect of these imports, and failed to
ensure that injury caused by these imports was not attributed to dumped imports. The EC argues that
Article 3.5 of the AD Agreement does not require an i nvestigating authority to cite to sources of its
factual findings, and that Norway does not challenge the factual findings or adduce any evidence to
contradict them. The EC notes that "the fact that the imports from the US and Canada consist of wild
salmon are [sic] largely known (i ndustry knowledge), confirmed by pub licly available data and ... by

802 EC, FWS, para. 413.
803 Norway also challenges the EC's submission of exhibit EC-14, which presents information on injury
factors such as market share reflecting the corrected data on the volume of US imports.
804 EC, Answer to Panel Question 1, para. 30.
805 See, para. 7.857.
806 Definitive Regulation, Recital 86.

the Norwegian government itself".
807 The EC argues that, in any event, Norway failed to make a
prima facie case that the investigating authority erred in its assessment of the effect of imports from
the United States and Canada.
7.664 In evaluating this claim, we note first that we do not disagree with the view of the EC that an
investigating authority is not obligated to cite or refer to every piece of evidence underlying its factual
findings. However, that does not mean that the factual findings of the investigating authority must be
accepted by the Panel unless the party challenging th ose findings adduces evidence that demonstrates
that they are erroneous. The Panel's task is to "d etermine whether the authorities' establishment of the
facts was proper, and whether its evaluation of tho se facts was unbiased and objective". In this case,
Norway, as we understand its argument, contends that the EC's establishm ent of the "facts" in
question, i.e., that the majority of salmon imports from Canada and the US are of wild salmon, and
that wild and farmed salmon do not compete, was im proper as there is no explan ation of, or reference
to, any evidence upon which those facts could be estab lished. In such a situation, the Panel cannot
itself determine whether the investigating authority's factual findings are correct. Rather, the Panel
must examine the information and arguments that were before the investigatin g authority in order to
determine whether the investigating authority came to those findings on a proper basis.
7.665 It is undisputed that the relevant import statis tics do not distinguish be tween wild and farmed
salmon imports from the United States and Canada.
808 The EC has pointed to no information that was
before the investigating authority which indicat es what proportion of those imports was of wild
salmon, and nothing that indicates that the majority w as of wild salmon. Instead, the EC asserts that
this fact is "industry knowledge", and confirmed by unspecified publicly available information, which
the EC has not put before the Panel. The EC also notes that in a separate EC safeguard investigation
concerning imports of salmon, Norway acknowledged that exports of salmon from the US and Canada
are mainly of wild salmon. 809 Norway points out that both the United States and Canada produce
farmed as well as wild salmon, and thus, the imports may well include some farmed salmon, which is
again undisputed by the EC. 810 It thus seems clear to us that the proportion of imports from the
United States and Canada consisting of wild salmon is a question of fact to which the answer is not
self-evident.
7.666 The Provisional and Definitive Regulations both refer to "information gathered during the
investigation" as the basis of the conclusion that the majority of imports from the United States and
Canada were of wild salmon, but do not indicate wh at that information was or how it was considered
by the investigating authority. The Panel asked the EC to "demonstrate what information in the file of
this investigation" supports these conclusions. 811 In response to the Panel's question, the EC points to
the information gathered in the separate safeguards proceeding, and argues that the basic facts cannot
differ from one proceeding to the other, especially when those proceedings were conducted in
parallel, and that the persons wo rking on the anti-dumping investigation could not erase knowledge
gained in the safeguards case. The EC also asserts that the investigating authority was in "intense
contact with the representatives of the salmon i ndustry", that it was "common industry knowledge",
that the investigating authority "conducted a comprehe nsive internet research", and that in any event,

807 EC, FWS, para. 441.
808 Provisional Regulation, Recital 96, Definitive Regulation, Recital 84.
810 Norway has submitted public inform ation concerning the volume of production of farmed and wild
salmon in the United States and Canada in exhibit NOR-78. However, that information was not before the
investigating authority, and we therefore do not consider it in our analysis, for the same reasons as set out above
concerning exhibits-EC14 and EC-15.
811 EC, Answer to Panel Question 37.

Norway never put any contrary evidence before the investigating authority, which could not "pursue
any unsubstantiated assertion which lacks credibility on its face".812
7.667 While we do not and cannot decide whether, i ndeed, the majority of imports of salmon from
the United States and Canada were of wild salmon, we do not consider that the investigating authority
properly established that fact during the course of the investigation. We do not dispute that the
persons working for the investigating authority in a particular anti-dumping dispute may have
knowledge and information gained from sources ot her than information submitted by interested
parties during an investigation – prior knowledge of a product, industry, or market, experience gained
in other investigations, or other types of investig ations, publicly available information, and "common
knowledge" may also all play a part in an investiga ting authority's efforts to establish the facts in a
particular investigation. However, in this case, such information is not reflected anywhere in the
published determinations, and the information obtained from these efforts has not been brought before
us in a form that demonstrates that it was available to and considered by the investigating authority in
establishing the facts. We consider it imperative that there be some indication in the published
determination, or at least some information on the matter in the files of the investigating authority
which can be identified for a reviewing panel, on th e basis of which that panel can determine how the
facts were established, beyond the undisputed good faith and hard work of the staff of the
investigating authority.
7.668 The same considerations apply to our examinati on of the EC's establishment of the fact that
wild and farmed salmon are not interchangeable. No rway has pointed to information that was before
the investigating authority that there was at least some competition between the two. The EC asserts
that this information does not demonstrate error in its conclusions that wild salmon "practically" is not
sold as a fresh product, but "mostly" as a canned produc t. However, in the absence of any indication
as to what information was considered and any explanation of how the investigating authority
assessed the relevant information, it is not possible for us to determine that the facts were properly
established.
7.669 We therefore conclude that the EC failed to properly examine known factors other than the
dumped imports which at the same time were causi ng injury to the domestic industry, and failed to
ensure that the injuries caused by these other factors were not attributed to dumped imports, in
violation of the requirements of Article 3.5 of the AD Agreement. Having found a violation of
Article 3.5 in this respect, we do not consider it either appropriate or necessary to consider whether
these same considerations constitute a violation of Article 3.1 of the AD Agreement, as to do so
would not further the resolution of this dis pute or serve as any guidance in the event of
implementation.

812 EC, Answer to Panel Question 37, paras. 170-172.

I. A
LLEGED INCONSISTENCY OF THE EC'S DECISION TO APPLY MINIMUM IMPORT PRICES AND
FIXED DUTIES WITH ARTICLE VI:2 OF THE GATT 1994 AND ARTICLES 9.1, 9.2, 9.3 AND 9.4
OF THE AD AGREEMENT
1. Alleged Inconsistency of the Imposition of Minimum Import Prices with Articles 9.1,
9.2, 9.3 and 9.4(ii) of the AD Agreement and Article VI:2 of the GATT 1994
(a) Arguments of the Parties
(i) Norway
7.670 Norway claims that the minimum import pri ces ("MIPs") imposed by the investigating
authority on investigated and non-investigated parties were inconsistent with Articles 9.1, 9.2, 9.3 and
9.4(ii) of the AD Agreement and Article VI:2 of the GATT 1994. Norway argues that the
investigating authority acted inc onsistently with these provisions because: (i) the MIPs imposed on
investigated parties were greater than their resp ective normal values; (ii) the MIPs imposed on non-
investigated parties were greater than the weight ed average of the normal values calculated for the
investigated parties; and (iii) the MIPs imposed on investigated parties were greater than their
respective margins of dumping.
 The assertion that the MIPs were greater than the relevant normal values

- MIPs imposed on investigated parties we re inconsistent with Article 9.2 of
the AD Agreement and Article VI:2 of the GATT 1994

7.671 Norway argues that in order to comply w ith the requirement under Article 9.2 of the
AD Agreement that anti-dumping duties be collected "in the appropriate amounts", an investigating
authority must ensure that any MIPs imposed on i ndividually investigated parties must not exceed
their respective normal values. Furthermore, according to Norway, any MIPs imposed on
individually investigated parties must not exceed their respective normal values because otherwise the
anti-dumping duties imposed would be greater than n ecessary "to offset or prevent dumping" within
the meaning of Article VI:2 of the GATT 1994. No rway contends that the EC failed to initially
disclose the investigating authority's calculation of the MIPs despite being asked to do so, once by the
Norway during consultations, and once by the Panel in Panel Question 39. According to Norway, it
was only in its answer to Panel Question 130, follow ing the second substantive meeting of the parties,
that the EC dislcosed its calculations based on the nromal values disclosed by the EC to the
investigated parties. Therefore, in its submissions to the Panel, Norway presented its own calculations
based on the normal values disclosed by the EC to the investigated companies during the
investigation. On the basis of these calculations , Norway asserts that the MIPs imposed by the
investigating authority on the investigated parties were greater than their respective normal values.
Thus, Norway claims that the MIPs imposed on th e investigated parties were inconsistent with
Article 9.2 of the AD Agreement and Article VI:2 of the GATT 1994.
7.672 Norway recalls that the MIPs applied to the investigated parties were based on the "non-
injurious" MIPs established for six different presentations of salmon, because these were found by the
investigating authority to be less than the co rresponding "non-dumped" MIPs calculated for each of
the individually investigated parties. However, according to Norway, the "non-dumped" MIPs that
were used for this purpose were greater than the relevant normal values of the investigated parties
because: (i) they were based on normal values ad justed to the CIF Community border level; and
(ii) they were derived through the application of a three-year-average NOK/EUR exchange rate,
instead of the exchange rate for the period of investigation. In Norway's view, these alleged
methodological errors had the result of inflati ng the "non-dumped" MIPs above the appropriate

normal values, which thereby flawed the compar ison between "non-injurious" and "non-dumped"
MIPs.
7.673 Norway also contends that the investigating authority's calculation of the "non-dumped" MIPs
was flawed because for five of the six presentati ons of salmon, it was based on costs of production
derived from the application of "weight conversi on factors" and not actual costs of production.
Norway argues that a producer's actual costs of producing one presentation of salmon cannot
necessarily be derived from the cost of produc ing another presentation simply by applying the
standard "weight conversion factors". Moreover, No rway submits that the investigating authority did
not use "standard" "weight conversion factors", and that as a consequence, the MIPs finally
determined were considerably higher than those that would be obtained had the investigating authority
used "standard" "weight conversion factors". To this extent, Norway argues that the "non-dumped"
MIPs for these five presentations of salmon were greater than the investigated parties' respective
normal values.
7.674 Finally, for one investigated party, Si nkaberg-Hansen, Norway argues that the EC
acknowledged in response to a question from the Panel that the investigating authority's determination
of dumping was unreliable, thereby invalidating the MIPs set for this company.
- MIPs imposed on non-investigated pa rties were inconsistent with
Article 9.4(ii) of the AD Agreement and Article VI:2 of the GATT 1994
7.675 Norway argues that, pursuant to Article 9.4(ii) of the AD Agreement, MIPs imposed on non-
investigated parties must not exceed the weight ed average of the normal values of all of the
investigated parties. Where this benchmark is su rpassed, the MIPs will not only be inconsistent with
Article 9.4(ii) but also Article VI:2 of the GATT 1994 because, according to Norway, they would
result in the collection of anti-dumping duties greater than necessary "to offset or prevent dumping".
Norway asserts that on the basis of its own calculations, the MIPs imposed on non-investigated parties
were greater than the weighted average of the normal values of the investigated parties. As such, the
MIPs imposed on the non-investigated parties were inconsistent with Article 9.4(ii) of the
AD Agreement and Article VI:2 of the GATT 1994.
7.676 Norway recalls that the MIPs imposed on th e non-investigated parties were based on the
"non-injurious" MIPs established for six different pr esentations of salmon, because for each different
presentation of salmon, these were found by the inves tigating authority to be less than the weighted
average of the "non-dumped" MIPs of the investigated parties. To the extent that the "non-dumped"
MIPs calculated for the investigated parties were fl awed, Norway argues that the weighted average of
the "non-dumped" MIPs of the investigated parties was also flawed. In add ition, Norway argues that
the weighted average of the "non-dumped" MIPs of the investigated parties was flawed for two other
reasons: (i) because the "non-dumped" MIP calculated for Grieg was used in the calculation of the
weighted average, and Grieg's normal value was alle gedly calculated on the basis of "facts available";
and (ii) because, according to the EC's explanati on of the investigating authority's methodology, an
individually determined "non-dumped" MIP calculated for Seafarm Invest was used in the calculation
of the weighted average, even though the Definitive Regulation reveals that the investigating authority
did not calculate an individual margin of dumping for this company, and treated it in the same way as
Marine Harvest.
 The assertion that MIPs were greater than the relevant margins of dumping

7.677 Norway argues that Articles 9.1 and 9.3 of the AD Agreement, and Article VI:2 of the
GATT 1994, require that any anti-dumping duties imposed on investigated parties cannot be greater
than their respective margins of dumping. Where this is the case, any anti-dumping duty imposed

would not be collected in "the appropriate amount", a nd therefore also inconsistent with Article 9.2 of
the AD Agreement.
7.678 Norway submits that the duty imposed on inv estigated parties through the contested MIPs
may vary with individual export transactions, and co uld even equal the entire amount of the MIP ("in
the theoretical event that the export pr ice is just marginally above zero")
813. As a result, Norway
argues that the amount of anti-dumping duty that may be collected through the MIPs imposed by the
investigating authority is not limited to the margin of dumping of any of the investigated parties.
Norway argues that the EC should have adopted a "m echanism" to ensure that the MIPs applied could
not result in the imposition of a duty that exceeds the maximum amount of ad valorem duty that it was
entitled to impose. According to Norway, the absence of any such mechanism meant that the measure
applied by the EC could not guarantee that the amount of duties imposed through the MIPs, when
expressed as a percentage of the relevant export price, did not exceed the margins of dumping
determined for the investigated parties. Thus, Norw ay claims that the EC acted inconsistently with
Article VI:2 of the GATT 1994 and Articles 9.1 and 9.3, and as a consequence, also Article 9.2.
(ii) European Communities
The assertion that the MIPs were greater than the relevant normal values

7.679 The EC notes that the investigating authority cal culated the MIPs in question on the basis of
the non-injury price, not the normal values of the inv estigated parties. In doing so, the EC contends
that the investigating authorit y assessed and confirmed that the MIPs imposed were below the
investigated parties' "non-dumped" MIPs. The EC rejects Norway's calculation of the investigated
parties' normal values showing that the vast majo rity of these were below the final MIPs imposed,
arguing that Norway's figures are speculative a nd based on mere hypotheses. Thus, the EC rejects
Norway's claim that it acted inconsistently with Article VI of the GATT and Articles 9.2 and 9.4 of
the AD Agreement.
7.680 The EC explains that the methodology applied by the investigating authority to calculate the
investigated parties' "non-dumped" MIPs fo r each presentation of salmon involved initially
establishing the "non-dumped" MIP for one of the presentations, whole fish. The investigating
authority did this by first identifying the full cost of production, including SG&A cost, for the most
common presentation – chilled head-on salmon. The investigating authority then applied a "standard
adjustment factor" of 0.9 to arrive at a cost of pr oduction for whole fish. It then added costs relating
to shipment to the EC border, CIF level, as well as an amount for profit calculated at 8 per cent of the
CIF value. For the five other presentations of salmo n, the investigating auth ority determined the full
cost of production by "applying the same standard adjustments" to each presentation. Once these
were determined for each presentation, they were ad justed by adding shipping costs to CIF EC border
and profit.
7.681 The EC justifies the investigating authority's ad justment to CIF level by arguing that it was
necessary in order to bring the normal values to the level that is traditionally used by the EC to charge
duties, and hence compare with the "non-injury" MIP, which was set at the same level. According to
the EC, an alternative approach would be to set th e MIPs at the actual normal value, and reduce the
invoice price of imported salmon by an amount corres ponding to transport and insurance costs. The
EC argues that the result of this alternative, in terms of duty imposed under the MIP, would be the
same as the approach adopted by the investigatin g authority. It argues, however, that it would
considerably add to the cost and bother of passing goods through customs control.

813 Norway, FWS, para. 662.

7.682 The "non-dumped" MIPs were initially derived in NOK. In order to compare them with the
"non-injury" MIPs, the investigating authority applie d a three-year-average exchange rate. The EC
defends the investigating authority's use of the thre e-year-average exchange ra te by arguing that the
application of this exchange rate followed logically from the fact that the costs used to calculate the
normal values were in part collected over the same three year period.
 The assertion that MIPs were greater than the relevant margins of dumping

7.683 In essence, the EC argues that Article 9. 4(ii) assumes that Members may impose anti-
dumping duties in the form of MIPs set at the level of a normal value calculated during an anti-
dumping investigation. According to the EC, the language of Article 9.4(ii) does not envisage an
upper limit on the duty that may be collected through th e application of MIPs. In this regard, the EC
contends that all that the text of Article 9.4(ii) rev eals is that the duty collected must be equivalent to
the difference between the export price and the nor mal value. Nevertheless, the EC acknowledges
that MIPs might on occasion result in the collection of a duty that exceeds the actual margin of
dumping for a particular import transaction. Howeve r, in the EC's view, this is not an anomaly,
because the same result may obtain when applying more conventional type of prospective anti-
dumping duties. In both cases, the EC argues that the AD Agreement provides for the possibility of
being reimbursed for duties collected in excess of the actual margins of dumping through the refund
procedure established under Article 9.3.2.
7.684 The EC finds further support for its view that Article 9.4(ii) does not limit the amount of anti-
dumping duty that may be collected through MIPs in the Panel's finding in the Argentina – Poultry
Anti-Dumping Duties case. The EC argues that there is no significant difference between the facts in
that case and those before the Panel in the present dis pute. Thus, although the issue of the kind of cap
suggested by Norway was not discussed in Argentina – Poultry Anti-Dumping Duties , the EC
contends that the Panel's ruling in that case clear ly established the legitimacy of MIPs and their
consistency with the requirements of Article 9 of the AD Agreement.
7.685 The EC also argues that the requirement in Ar ticle 9.3 to ensure that the "amount of anti-
dumping duty shall not exceed the margin of dumpi ng as established under Article 2", does not refer
to the margin of dumping determined in the original investigation, but rather the margin of dumping
relating to import transactions made after the impos ition of measures, calculated for the purpose of a
duty refund proceeding under Article 9.3.2. According to the EC, if this were not the case, there
would be no recourse for an importer to claim duty refund in a situation where the exporter no longer
dumped after the imposition of measures. Thus, the EC argues that the MIPs imposed on the
investigated parties cannot be foun d to be inconsistent with Article 9.3 for the sole reason that, at
certain price levels, they result in the collecti on of anti-dumping duties, which when expressed in
ad valorem terms, are greater than the margin of dumping calculated in the original investigation. For
the same reason, the EC argues that the MIPs cannot be found to be inconsistent with the respective
requirements in Article VI:2 of the GATT 1994 and Article 9.1 of the AD Agreement to ensure that
"an anti-dumping duty [is] not greater in amount than the margin of dumping" or "the amount of the
anti-dumping duty to be imposed be the full margin of dumping or less".
(b) Arguments of the third parties
(i) China
7.686 China considers that the MIPs imposed by the EC were inconsistent with the AD Agreement
because, with six different MIPs, the EC did no t impose "a single anti-dumping duty" against "a
single product" in a single investigation. Accord ing to China, there should be only one duty imposed
for each product investigated against each exporter/producer concerned. In China's view, the wording
of various provisions of the AD Agreement (Articles 2. 1, 6.10, 9.1, 9.2 and 9.3) demonstrates that the

drafters intended a strict corresponding relationshi p between a product (singular form), a margin of
dumping (singular form), an exporter/producer (singular form), and an antidumping duty (singular
form). Thus, China submits that once an investig ating authority has defined "a product", i.e., the
product under consideration, it is required to determine "an indivi dual margin of dumping" for "a
known exporter or producer" and impose "an anti-dumpi ng duty" against such a product and such an
exporter/producer.
(ii) Japan
7.687 Japan does not challenge the right of a WTO Member to assess and collect anti-dumping
duties through the imposition of prospective normal values and a non-injurious MIP, as applied by the
EC in the case at hand. However, Japan takes issue with the alleged lack of transparency in respect
the EC's calculation of the level of the MIP. In addition, Japan doubts the consistency of the duty
collection system applied by the EC with the obligations of Article VI of GATT 1994 and the
AD Agreement not to impose duties in excess of the margin of dumping found to exist.
7.688 Japan considers that the lack of transparency evident in the EC 's calculation of the MIPs is
more than simply a problem of procedure. In th e absence of a reasoned and adequate explanation of
the determination made, the conclusion of the EC that the non-injurious MIPs did not exceed the level
of the non-dumped MIPs, and that it therefore comp lied with its obligation under the AD Agreement,
becomes a mere assertion. In the absence of an adequate and reasoned expl anation, no meaningful
review by a Panel is possible.
7.689 Japan notes that Articles 9.1 and 9.3 of the AD Agreement and Article VI .2 of GATT 1994
make clear that an authority is not allowed to impose a duty in excess of the margin of dumping found
to exist. In the light of this obligation, Japan believes it is incumbent upon the authorities to
demonstrate through a reasoned and adequate explanation that the level of the duty imposed did not
exceed the level of the margin. Jap an invites the panel to examine whether the EC can be found to
have met its obligation under Articles 9.1 and 9.3 of the AD Agreement and Article VI .2 of
GATT 1994 in the absence of a clear and objective basis for the calculation of such duties.
(iii) United States
7.690 Consistent with Articles 9.1 and 9.3, the amount of any anti-dumping duty may not exceed
the margin of dumping. Article VI:2 of the GATT 1994, read in conjunction with Article VI:1,
provides that the margin of dumping is the price difference when a product is being introduced into
the commerce of the importing country at a price less than normal value. Article 9.4 of the
AD Agreement recognizes that a Member may utilize a prospective normal value system of assessing
antidumping duties. Assuming Norway's description of the EC's minimum import price ("MIP")
system is accurate, and based on the EC's descripti on in its own submission, the system appears to
operate in a similar fashion to a prospective normal value system. To the extent that the EC used
MIPs that exceed properly established normal valu es, the antidumping duties calculated on the basis
of such MIPs would exceed the margin of dumping. If this is the case, such action would be
inconsistent with Article VI:2 of the GATT 1994, and Articles 9.1, 9.2, 9.3 and 9.4 of the
AD Agreement.
(c) Evaluation by the Panel
(i) Facts
7.691 Before turning to address Norway's claims, we believe it is useful to briefly set out the
pertinent facts surrounding the investigating authority 's calculation of the MIPs for the investigated
and non-investigated parties.

7.692 We recall that, except for one company that obtained a de minimis margin of dumping, the
investigating authority established MIPs in respect of six different presentations of salmon at the same
levels for all investigated and non-investigated parties. These MIPs were based on the "non-
injurious" MIPs calculated for the different presen tations of salmon, because these were found to be
lower than each investigated party's "non -dumped" MIPs for the corresponding salmon
presentations.814
7.693 The Definitive Regulation reveals that the "c ompany-specific non-dumped" MIPs that were
compared with the "non-injurious" MIPs were calcula ted on the basis of "normal value, adjusted to
the net free-at-Community-border price". 815 However, neither the Definitive Regulation nor any of
the individual company disclosures explain how the investigating authority determined the "company-
specific non-dumped" MIPs for each of the individual presentations of salmon. The EC has explained
that this involved a number of steps, which we understand to be the following: First, for each
investigated party, the investigating authority calculated a "non-dumped" MIP for one type of
presentation, whole fish. To do this, the EC identif ied the actual cost of production, including SG&A
cost, calculated for another presentation, chilled head-on salmon, and adjusted this by a "standard
adjustment factor" of 0.9.
816 The EC has not explained what it means by a "standard adjustment
factor". However, we understand that the EC is referring to what is d escribed in the Definitive
Regulation as the "weight conversion factors, as contained in Council Regulation (EC)
No 772/1999".
817 Our understanding from the information contained in Council Regulation (EC)
No 772/1999 and the parties' responses to Panel Questi on 130, is that "weight conversion factors" are
factors that may be used to convert the we ight of one salmon presentation into another. 818 F o r
instance, the weight conversion factor of 0.9 fo r chilled head-on salmon means that 90kg of chilled
head-on salmon has a whole fish weight of 100kg. T hus, it follows from the EC's explanation that in
the investigation at issue, for each investigated part y, the investigating authority did not determine the
full cost of production of whole fish salmon on the b asis of actual data relating to the production of
whole fish. Instead, the investigating authority derived these production costs by applying a weight
conversion factor to the actual production costs determined for chilled head-on salmon.
7.694 The Definitive Regulation confirms that the in vestigating authority used "weight conversion
factors" when establishing the MIPs. However, it al so reveals that "[w]ith regard to the whole fish
fillets and fillets cut in pieces, processing costs were taken into account".819 The EC has not explained
how such processing costs were taken into account. No rway asserts that the fact that the investigating
authority took processing costs into account when determining the MIPs for "whole fish fillets and
fillets cut in pieces" means that it did not apply th e "standard" weight conversion factors set out in
Council Regulation (EC) No 772/1999 to all presenta tions covered by the MIPs. We agree with
Norway that the langauge in the Definitive Regulation appears to support this assertion.

814 A more detailed explanation of the rationale underlying the investigating authority's decision to base
the MIPs on "non-injurious" prices is set out above, paras. 7.403 - 7.408.
815 Definitive Regulation, Recital 129.
816 EC, Answer to Panel Question 130.
817 Definitive Regulation, Recital 132.
818 EC, Answer to Panel Question 130; Norway, Comme nts on the European Communities' Answer to
Panel Question 130. Council Regulation (EC) No 772/1999 of 30 March 1999 imposing definitive anti-
dumping and countervailing duties on imports of farmed Atlantic salmon originating in Norway and repealing
Regulations (EC) No 1890/97 and (EC) No 1891/97, Official Journal L101/1, 16 April 1999. Paragraph 17 of
Regulation 772/1999 states that the weight conversion factors used in that investigation are set forth in the
Notice of Initiation of that investigation. The Notice of Initiation reveals the following weight conversion
factors: "Gutted head-on" salmon – "0,90"; "Gutted head-off" salmon – "0,80"; "whole fish fillets above 300 gm
each" – "0,65"; and "other fillets or f illet portions normally weighing 300 gm or less" – "0,56", Official Journal
C400/4, 22 December 1998.
819 Definitive Regulation, Recital 132.

7.695 After it had derived the cost of production for whole fish salmon, the investigating authority
next adjusted this amount to account for transport expenses related to shipping the relevant salmon
presentation from Norway to the EC border at the level of CIF. The EC has not explained whether the
transport costs applied were actual costs incurred by the relevant investigated party, for example, on
its export sales, or whether it used some other basis for calculating these costs.
7.696 The investigating authority then added a figure representing an amount of profit of 8 per cent
on the CIF adjusted price. We note that the inves tigating authority used the same percentage profit
margin when constructing normal value.
820
7.697 Finally, in order to compare the "non-dumpe d" MIPs with the "non-injurious" MIPs, the
investigating authority converted the "non-dump ed" MIPs expressed in NOK into "non-dumped"
MIPs expressed in EUR on the basis of a three y ear average exchange rate covering 2002, 2003 and
the period of investigation. The investigating authority explained that it believed it was appropriate to
use a three year average exchange rate because "a number of important costs which [were] included in
the normal value [were] incurred over [the] producti on cycle" of salmon, which the investigating
authority considered to have an average duration of three years.821
7.698 The EC has submitted the following table to accompany its explanation of how the
investigating authority calculated the final "non-dumpe d" MIPs for each investigated party in respect
of one presentation – whole fish:822
NOK
Company
Volume
Exported to
EU
(kg WFE)
Final COP
WFE Ex-
W
Transport +
Tax +
Miscellaneous
cost per unit
CIF Turnover CIF per
unit
Non-
dumped
MIP
Fjord Seafood [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]]
Marine Harvest [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]]
Grieg Seafood [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]]
Stolt Seafarm [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]]
Follalaks [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]]
Hydroteck [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]]
Pan Fish [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]]
Seafarm Invest [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]]
Weighted
Average [[XXX]] [[XXX]] [[XXX]] [[XXX]]

820 Provisional Regulation, Recital 30.
821 Definitive Regulation, Recital 130.
822 Exhibit EC-77.

Euro (1 Euro = 7.942 NOK, three year average)
Company
Volume
Exported to
EU
(kg WFE)
Final COP
WFE Ex-W
Transport +
Tax +
Miscellaneous
cost per unit
CIF Turnover CIF per
unit
Non-
dumped
MIP
Fjord Seafood [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]]
Marine Harvest [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]]
Grieg Seafood [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]]
Stolt Seafarm [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]]
Follalaks [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]]
Hydroteck [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]]
Pan Fish [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]]
Seafarm Invest [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]] [[XXX]]
Weighted
Average [[XXX]] [[XXX]] [[XXX]] [[XXX]]

7.699 We note that the MIP imposed in the Defin itive Regulation on all investigated and non-
investigated parties in respect of "whole fish, fresh, chilled or frozen" salmon was EUR 2.80 per kg.
The above table shows that all of the "non-dumped" MIPs calculated for the in vestigated parties were
greater than the MIP imposed in the Definitive Regul ation. Likewise, the above table indicates that
the weighted average of the company-specific non-dumped MIPs for whole fish was also above
EUR 2.80 per kg.
7.700 The EC has not provided a similar table or e xplanation in respect of the "non-dumped" MIPs
calculated for all of the other salmon presentations. However, it argues that "[s]ince the figures for
other presentations are the result of applying the sa me standard adjustments that were used in the
calculations of the cost of production, the same result necessarily follows for them". 823 W e
understand this statement to mean that the "com pany-specific non-dumped" MIPs calculated for all
other presentations were based on a cost of produc tion derived using "weigh t conversion factors",
adjusted for shipping costs to the EC and a profit margin of 8 per cent.
(ii) Allegation that the MIPs imposed on the investigated parties were inconsistent with
Article 9.2 of the AD Agreement and Article VI:2 of the GATT 1994
7.701 As we understand it, the system of MIPs imposed by the investigating authority results in the
collection of anti-dumping duties through the applica tion of a "prospective reference price" which the
EC argues was less than the normal value. The Definitive Regulation explains that each time a
presentation of salmon is imported at a price below the relevant MIP for that presentation, the amount
of anti-dumping duty collected would be equivalent to the "difference between the actual price and
the minimum import price".
824 Thus, the MIP for each separate salmon presentation acts as a
"prospective reference price", which may result in the collection of variable amounts of anti-dumping
duty, depending upon the difference between the export price and the MIP.

823 EC, Answer to Panel Question 130.
824 Definitive Regulation, Recital 133.

7.702 Norway argues that Article 9.2 of the AD Agreement and Article VI:2 of the GATT 1994
require that MIPs imposed on investigated partie s not exceed the respective normal values of those
investigated parties. According to Norway, the MI Ps imposed by the investigating authority in the
present investigation were, for various reasons, gr eater than the normal values of the individually
investigated parties. The EC shares Norway's view that MIPs imposed on investigated parties must
not exceed their respective normal values. However, according to the EC, the MIPs imposed by the
investigating authority in the present investigation were lower than the respective normal values of the
investigated parties.
7.703 Norway's claim is focused on the level of MIPs set by the investigating authority for the six
different salmon presentations for all investigated parties. Although the collection of variable anti-
dumping duties on the basis of a "prospective normal value" or an equivalent or lower MIP is
permissible under the AD Agreement,
825 there is no explicit guidance in the GATT 1994 or the
AD Agreement on the maximum level at which the "prospective normal value" or MIP must be set for
investigated parties . In this regard, the parties agree that the relevant benchmark is the respective
normal values of the investigated parties. 826 According to Norway, this flows from the obligation in
Article 9.2 to collect anti-dumping duties in the "a ppropriate amounts", when read together with
various other provisions, including Articles 2.1 and 9.4 of the AD Agreement and Articles VI:1 and
VI:2 of the GATT 1994.
7.704 Article 9.2 of the AD Agreement is one of several provisions in Article 9 addressing the
"Imposition and Collection of Anti-Dumping Duties" . One of its requirements is that any anti-
dumping duties imposed must be collected "in the a ppropriate amounts". However, Article 9.2 does
not explain how to determine the "appropriate" am ounts of any anti-dumping duty to be collected.
The dictionary definitions of the word "appropriate " include "specially suitable (for, to); proper,
fitting".827 This suggests that the "appropriate" amount of anti-dumping duty is the amount of duty
that is "proper" or "fitting" in the context of an anti-dumping investigation.
7.705 Article VI:2 of the GATT 1994 reveals that the purpose of imposing and collecting anti-
dumping duties is to "offset or prevent dumping". Th is principle is reflected in Article 9.1 of the
AD Agreement, which provides that an anti-dumping duty may only be imposed when "all
requirements for the imposition have been fulfilled". It follows that the "appropriate" amount of anti-
dumping duty must be an amount that results in of fsetting or preventing dumping, when all other
requirements for the imposition of anti-dumping duties have been fulfilled. Dumping is defined in
both Article VI:1 of the GATT 1994 and Article 2.1 of the AD Agreement, in essentially the same
terms, as the introduction of a product into the comm erce of another country at a price which is "less
than its normal value". Thus, to the extent that an anti-dumping duty may be imposed to offset or
prevent dumping, it follows that it may only be co llected when the price of the imported product is
less than its normal value. No anti-dumping duty ma y be imposed (and therefore collected) when the
price of an imported product is above its normal va lue. To this extent, normal value constitutes a
point of reference for determining when anti-dumping duties may or may not be imposed and
collected.

825 Panel Report, Argentina – Poultry Anti-Dumping Duties, para. 7.359; Panel Report, United States –
Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing") ("US - Zeroing (EC) "),
WT/DS294/R, adopted 9 May 2006, para. 7.206; and Panel Report, United States – Measures Relating to
Zeroing and Sunset Reviews ("US – Zeroing (Japan)"), WT/DS322/R, adopted 23 January 2007, as modified by
Appellate Body Report, WT/DS322/AB/R, paras. 7.201, 7.205-7.206.
826 Norway, FWS, paras. 643-651; Norway, Answer to Panel Questions 69 and 90; EC, Answer to
Panel Question 90; EC, Oral Statement at the Second Substantive Meeting of the Parties, para. 71.
827 New Shorter Oxford English Dictionary, Clarendon Press, 1993.

7.706 All this suggests that normal value must also be determinative of the "appropriate" amount of
anti-dumping duty that may be collected in the context of the application of a MIP. Thus, it would not
be "appropriate" to collect anti-dumping duties throug h the imposition of a MIP that was greater than
normal value, because this would imply that anti-dumping duties could be collected even when export
price was above the normal value. Therefore, it follows that when collecting anti-dumping duties
through application of a MIP, the "appropriate" am ount of anti-dumping duty pursuant to Article 9.2
must be one where the maximum level of the MIP imposed on an i nvestigated party is its normal
value.
7.707 We find important contextual support for this conc lusion in Article 9.4. Article 9.4 explicitly
recognizes that a "prospective normal value" may be applied for the purpose of collecting anti-
dumping duties from parties not included in a lim ited investigation undertaken pursuant to
Article 6.10. To this end, Article 9.4(ii) estab lishes that for such non-investigated parties, an
investigating authority will be entitled to apply an ti-dumping duties in an amount not greater than the
"difference between the weighted average normal valu e of the selected exporters or producers and the
export prices" of the non-investigated parties. Ar ticle 9.4(ii) thereby sets the maximum level of the
"prospective normal value" that could be applied to non-investigated parties at the weighted average
of the normal values of the investigated parties. In our view, it would make sense to consider that
essentially the same benchmark – normal value – should be equally relevant when applying a
"prospective reference price" to investigated parti es. In this regard, we find the last sentence of
Article 9.4 to be particularly instructive. This sentence reads:
"The authorities shall apply individual duties or normal values to imports from any
exporter or producer not included in the examination who has provided the necessary
information during the course of the investigation, as provided for in subparagraph
10.2 of Article 6." (Emphasis added).
7.708 Thus, the last sentence of Article 9.4 explicitly recognizes that the benchmark for a MIP
applied to any individual exporter or producer that has provided information of the kind that could
result in the calculation of an individual margin of dumping in accordance with Article 6.10.2, may be
equivalent to its "individual ... normal values".
7.709 For all of the above reasons, we therefore c onclude that in order to comply with the
requirement in Article 9.2 of the AD Agreemen t that anti-dumping duties be collected in the
"appropriate amounts", Members imposing MIPs on inves tigated parties must ensure that they do not
exceed their respective normal values.
 Whether the MIPs imposed on investigated par ties were greater than their respective normal
values

7.710 We understand Norway to have argued that th e MIPs imposed on the investigated parties
exceeded their individual normal values for essentially four reasons: First, because for one company,
Sinkaberg-Hansen, Norway contends that the EC has practically admitted that the "non-dumped"
MIPs were based on a determination of dumping that was unreliable. Secondly, Norway asserts that
the "non-dumped" MIPs were set at CIF Communi ty border levels, thus raising them above the
respective normal values. Thirdly, to the extent that it used a three-year average exchange rate,
instead of the exchange rate for the period of investigation, to convert the "non-dumped" MIPs
expressed in NOK to EUR, Norway submits that the i nvestigating authority inflated those MIPs. And
fourthly, because in calculating the "non-dumped" MIPs, the investigating authority used "weight
conversion factors" instead of actual costs of production for five of the six presentations of salmon.
7.711 Below, we address the merits of each of Norway's assertions in turn. However, before doing
so, we recall that the MIPs established by the investigating authority were based on the "non-

injurious" MIPs, because these were found to be lower than the "non-dumped" MIPs. The level of the
"non-dumped" MIPs was therefore critical to the in vestigating authority's decision to set the MIPs
equal to the "non-injurious" MIPs. Thus, to the extent that we may find any flaw in the investigating
authority's calculation of the "non-dumped" MIPs that could potentially have caused them to be
overstated, we believe that the factual basis for th e investigating authority's conclusion that the "non-
dumped" MIPs were lower than the "non-injuri ous" MIPs must also be flawed, rendering the
imposition of the latter on the investigated parties in consistent with the obligation under Article 9.2 to
collect anti-dumping duties in the "appropriate amounts". In our view, it is neither necessary nor
permitted, under the standard of review set out in Article 17.6 of the AD Agreement, for us to
determine whether any error in the calculation of the "non-dumped" MIPs could in actual fact render
the "non-dumped" MIPs lower than the "non-injurious" MIPs. In this regard, we believe that it would
be sufficient, in order to conclude that the inves tigating authority has not sa tisfied the obligation set
out in Article 9.2, to find that the factual basis upon which the investigating authority took the
decision to base the MIPs on the "non-injurious" MIPs was erroneous.
- The "non-dumped" MIPs calculated for Sinkaberg-Hansen
7.712 In the table submitted by the EC to explain how the investigating authority calculated the
"non-dumped" MIPs for each of the investigated pa rties, the EC did not include the figures for two
companies, Nordlaks and Sinkaberg-Hansen. The e xplanation for not including Nordlaks was that it
was determined to have a de minimis margin of dumping in the investigation, and therefore not
subject to anti-dumping measures. However, the EC explained that it had not disclosed how
Sinkaberg-Hansen's "non-dumped" MIPs had been cal culated because, "in the light of the claims
made by Norway", it considered that Sinkaberg-H ansen's data "gave rise to doubts" about the
investigating authority's "calculation of the company's cost of production".
828 Thus, the EC
communicated that "the finding of dumping for Sinkaberg cannot presently be regarded as reliable",
noting that it would "continue to r econsider expeditiously the relevant data and when that process is
completed will take whatever action is appropriate regarding the measure and regarding the position
of Sinkaberg in particular".
829
7.713 As of the time of writing this report, the EC has not communicated the results, if any, of its
reconsideration of the position of Sinkaberg-Hansen . In any case, we understand the EC's statement
to be an admission that the investigating authorit y erred in determining Sinkaberg-Hansen's costs of
production during the investigation. In particular, we take the EC's statement to mean that it has
accepted that the investigating authority erred when it included Sinkaberg-Hansen's revenue from
slaughtering services provided to third companies in the calculation of its cost of production for the
purpose of determining constructed normal value.830 Thus, to the extent that the cost of production for
each investigated company was a central element of the investigating authority's calculation of the
company-specific "non-dumped" MIPs, we find that by overstating Sinkaberg-Hansen's cost of
production, the investigating authority also overstated the corresponding "non-dumped" MIPs.
- Adjustment of the normal value to the CIF Community border level
7.714 We recall that the investigating authority constr ucted normal value for most if not all of the
domestic sales of the investigated parties, on the basis of each investigated party's manufacturing
costs, SG&A costs and a profit margin of 8 per cent.
831 However, the "non-dumped" MIPs were not
strictly set at the levels of the investigated pa rties' constructed normal values. Rather the "non-

828 EC, Answers to Panel Questions 128 and 130.
829 EC, Answer to Panel Question 128.
830 Our findings in respect of Norway's claims c oncerning the investigating authority's calculation of
Sinkaberg Hansen's constructed normal value are set out above, paras. 7.609.
831 Provisional Regulation, Recitals 26 and 30.

dumped" MIPs were derived by adding transport a nd insurance expenses relating to the shipment of
salmon presentations from Norway to the CIF Community border level, to the full cost of production,
and then adding an amount of 8 per cent of this figure, representing the margin of profit.
7.715 The EC does not argue that the "non-dumped" MIPs were strictly equal to the investigated
parties' normal values. However, as we understand it, the EC contends that the adjustment made to
bring the normal value to the CIF Community bor der level was merely made for administrative
convenience. In essence, the EC argues that b ecause the export price of any salmon presentation
imported to the EC would be assessed by the EC customs authorities for the purpose of collecting
anti-dumping duties at the CIF Community border le vel, it makes administrative sense to set the MIP
at a normal value adjusted to the CIF Community border level. 832 In this manner, there would be no
need to reduce the CIF invoice price of imported salmon for transport and insurance costs incurred
between Norway and the Community border. Thus, the EC argues that the "result in terms of the duty
imposed under the MIP would be the same, but the process would considerably add to the cost and
bother of passing goods through customs control".833
7.716 As we have already noted, the MIPs imposed by the investigating authority will result in the
collection of variable amounts of anti-dumping du ty, depending upon the difference between the
export price and the MIP of the relevant presentation of salmon. 834 Because a MIP must be set at a
price that does not exceed the normal value, it follo ws that the collection of variable anti-dumping
duties implies the continued existence of dumping. Under Article 2.4 of the AD Agreement, the
comparison between export price and normal value that is required to determine the existence of
dumping must be made between prices at the same level of trade, normally the ex-factory level.
Thus, in normal situations, an investigating author ity will adjust export price to the ex-factory level
and compare this to a normal value that is also ad justed to the ex-factory level. Alternatively, in
situations outside of the norm, it may be appropria te to compare export price with normal value at a
level of trade that is different from ex-factory, for ex ample, at the level of distributors. In our view,
the principle that export price and normal value be compared at the same level of trade is of equal
relevance and importance to the assessment of variable anti-dumping duties through the application of
a MIP. However, unlike the situation when su ch a comparison is necessary for the purpose of
determining the existence of dumping, the AD Agreement provides no guidance on how any
adjustments to export price and/or normal value must be made in this context. For instance, there is
no indication of the appropriate level of trade that an investigating authority must use to assess the
relevant amount of duty. Neither is there any guidance on whether adjustments should be made in
advance of importation, when setting the MIP, or at the time of importation, when assessing the
amount of duty. In this light, we believe that the AD Agreement leaves investigating authorities with
a degree of discretion to make the adjustments consider ed to be most appropriate, in the light of all
relevant circumstances, provided that these do not r esult in the distortion of the relevant export price
or normal value.
7.717 In the present investigation, the investigati ng authority decided that the most appropriate
adjustment to make would be one that brought the " non-dumped" MIP to the level of trade of the CIF
Community border, because EC customs authorities traditionally assess ad valorem anti-dumping
duties at this level. In doing so, we note that the investigating authority did not add the CIF
adjustment figure to the normal value calculated for each investigated party, but only to the cost of
production. Thus, instead of adding transport an d insurance costs to the normal value (cost of
production plus profit), the investigating authority a dded these costs to the cost of production. The
investigating authority then added a further amount representing 8 per cent of the CIF adjusted cost of

832 EC, SWS, paras. 191-192; EC, Or al Statement at the Second Subs tantive Meeting of the Parties,
para. 71.
833 EC, Oral Statement at the Second Substantive Meeting of the Parties, para. 71.
834 See, para. 7.701.

production, as profit, to arrive at the "non-dumped" MIP. Obviously, 8 per cent of the CIF adjusted
cost of production is greater than 8 per cent of the cost of production. As such, the "non-dumped"
MIP derived by the investigating authority was in fact greater than the sum of the normal value
calculated for the purpose of the determination of dump ing plus the transport and insurance costs. In
other words, the figure that would result after the removal of transport and insurance costs from the
"non-dumped" MIP would be greater than the normal value. To this extent, the adjustment applied by
the investigating authority resulted in overstating norma l value. For this reason, we consider that the
"non-dumped" MIPs determined by the investigating authority exceeded the appropriate benchmark.
- Conversion of the "non-dumped" MIPs into EUR using a three year average
exchange rate
7.718 Norway argues that the investigating authorit y was not entitled to use a three-year average
exchange rate covering the years 2002, 2003 and the period of investigation when converting the
"non-dumped" MIPs into EUR for the purpose of comparison with the "non-injurious" MIPs and
arriving at the MIPs finally imposed. Norway not es that during this three-year period, the EUR
appreciated by 11.6 per cent against the NOK. Thus , by using the lower three-year average exchange
rate, instead of the exchange rate for the peri od of investigation, Norway submits that the
investigating authority effectively overstated normal value in EUR by 5.2 per cent.
835
7.719 In the present investigation, the investigating authority explained that it chose to apply a
three-year average exchange rate to determine each of the investigated parties' "non-dumped" MIPs
because "a number of important costs which [were] included in the normal value" were incurred over
a production cycle for salmon that was on average three years. 836 In other words, the investigating
authority chose to apply a three-y ear average exchange rate because "a number" of the costs used to
construct normal value were calculated on the same basis.
7.720 According to the EC's own explanation of the methodology applied by the investigating
authority to determine the costs of pr oduction of the investigated parties, 837 a three-year average was
used to determine one of 12 items of cost (NRCs) used in the calculation of the cost of production of
three investigated parties; and one of ten items of cost (finance costs) used in the calculation of the
cost of production of five investigated parties. Fo r two investigated parties, all cost elements were
derived from data relating to opera tions undertaken during the period investigation. Thus, the three-
year average approach to calculating costs was not a pplied uniformly to all investigated parties; and
only in respect of a very small proportion of the number of cost items used in the determination of
eight of the 10 investigated parties' costs of produc tion. In contrast, the three-year average exchange
rate was applied to convert all cost elements of the "non-dumped" MIPs into EUR for all ten
investigated parties.
7.721 We recall that we have found that the investiga ting authority's use of a three-year average to
calculate the NRCs of [[XXX]] and [[XXX]] and the finance costs of [[XXX]] and [[XXX]] was
inconsistent with the AD Agreement.
838 Thus, to the extent that the investigating authority justified
the use of a three-year average exchange rate in the calculation of the "non-dumped" MIPs on the
basis of its adoption of the same approach to the calculation of the underlying costs, we find that the
EC's defence to Norway's claim cannot be sustained. Moreover, even assuming arguendo that the use
of a three-year average exchange rate were appropr iate, we do not believe the application of such a
methodology to all cost elements of all investigated parties could be justified in the present case,
given that only one of many cost elements used in the determination of eight investigated parties'

835 Norway, FWS, para. 633.
836 Definitive Regulation, Recital 130, Exhibit NOR-11.
837 Exhibit EC-37.
838 See, paras. 7.510, 7.515 and 7.543.

costs of production was calculated on the basis of a three-year average, and that none of the cost
elements of two of the investigated parties were determined on this basis. Thus, we find that the
investigating authority's use of a three-year aver age exchange rate resulted in overstating the "non-
dumped" MIPs calculated for the investigated parties.
- Weight conversion factors used to derive cost of production
7.722 For five of the six presentations of salmon the investigating authority determined the
investigated parties' "non-dumped" MIPs by applying "weight conve rsion factors" to derive the
relevant costs of production (i.e., manufacturing and SG&A cost), and then adjusting these to the CIF
Community border level and adding a amount for profit.
7.723 Once again, we recall that the maximum level at which it is permissible to set a MIP imposed
on investigated parties, in order to comply with Article 9.2, is the normal value used for the purpose
of determining the existence of dumping. Rul es governing the calculation of normal value can be
found in Article 2 of the AD Agreement. Depending upon the particular circumstances of an
investigation, investigating authorities may determine normal value on the basis of one of three prices:
(i) the "comparable price, in the ordinary course of trade, for the like product" sold on the domestic
market;
839 (ii) the "comparable price of the like product when exported to an appropriate third
country";840 or (iii) the "cost of production in the count ry of origin plus a reasonable amount for
administrative, selling and general costs and for profits". 841 Guidance on how to calculate costs of
production, SG&A expenses and prof its can be found in Articles 2.2.1.1 and 2.2.2. These provisions
provide that the starting point should always be actual cost data and information reported by the
investigated party. However, in certain situa tions, investigating authorities may have recourse to
other sources of information. For instance, Artic le 2.2.2(iii) indicates that when the amounts for
SG&A expenses and profit cannot be based on actual data relating to sales made in the ordinary
course of trade, an investigating authority may derive these data through the use of "any other
reasonable method". Article 6.8 and Annex II of th e AD Agreement permit an investigating authority
to use "facts available" to fill a gap created when information necessary for it to make a determination
is not forthcoming from an investigated party. Thus, the AD Agreement does not exclude the
possibility that an approach which approximates an investigated party's costs of production may, in
certain circumstances, be appropriate. Therefore, we see no reason why the application of "weight
conversion factors" of the kind applied by the inves tigating authority in the present investigation must
be per se impermissible.
7.724 Likewise, although the facts appear to demonstrate that the investigating authority did not rely
upon "standard" weight conversion factors when deriving the "non-dumped" MIPs for all of the
presentations,
842 we do not consider that this alone is enough to show that the "non-dumped" MIPs
were flawed. There may well be good reasons for choosing to apply weight conversion factors that
result in a higher MIP than would otherwise be th e case through the application of "standard" weight
conversion factors. Therefore, in the same way that we consider it is possible, in certain
circumstances, under the AD Agreement to rely up on "standard" weight conversion factors, it may
also be possible to apply weight conversion factors that are different from the "standard".
7.725 We note that Norway has brought numerous detail ed claims in this dispute relating to the
investigating authority's calculation of constructe d normal value for the investigated parties.
However, Norway has not brought any specific claim under Articles 2 or 6.8 of the AD Agreement
against the investigating authority's use of the "weight conversion factors" for the purpose of

839 Article 2.1.
840 Article 2.2.
841 Article 2.2.
842 See, para.7.694.

calculating the investigated parties' costs of produc tion for five presentations of salmon. Moreover,
we note that in its comments on the EC's explanation of the methodology applied by the investigating
authority to derive the "non-dumped" MIPs, Norway explicitly identified "two objections" to the use
of weight converions factors: First, that they de part from a "cost-based approach to calculating the
normal value plus CIF"; and secondly, that the weight conversion factors applied by the investigating
authority were not "standard".
843 However, in raising these objections, Norway has not explained why
the investigating authority was required under the AD Agreement to apply a "cost-based approach"
when deriving the production costs of the differe nt salmon presentations, or use only "standard"
weight conversion factors. We recognize that the EC's disclosure of the details underlying the
calculation of the "non-dumped" MIPs only in response to Panel Question 130, following the second
substantive meeting of the parties, rendered Norway's task of constructin its arguments more difficult.
However, we do not understand Norway to argue that it is for this reason that we must find the use of
weight conversion factors resulted in a flawed calculation of the "non-dumped" MIPs. 844 Thus, while
it may be true that the investigating authority did not follow a cost-based appr oach in arriving at the
costs of production for five of the six salmon presentations, and while it certainly appears that it did
not apply "standard" weight conversion factors fo r all presentations of salmon, Norway has not
established that the investigating authority's approach was inconsistent with any of the disciplines for
calculating normal value under the AD Agreement. Fo r this reason, we cannot fault the investigating
authority's calculation of the "non-dumped" MIPs simp ly because of the fact th at for five of the six
presentations of salmon, it derived the relevant cost s of production through the application of "weight
conversion ratios".
- Conclusion
7.726 In summary, we have found that:
(i) For one investigated party, Sinkaberg -Hansen, the investigating authority
incorrectly calculated the "non-dumped" MIPs for all six presentations of
salmon because it erred in the calculation of this company's cost of
production;
(ii) For all investigated parties, the "non -dumped" MIPs for all presentations of
salmon were greater than their respective normal values because they were
inappropriately adjusted to the CIF Community border level;
(iii) For all of the investigated parti es, the "non-dumped" MIPs for all
presentations of salmon were overstated because of the use of a three year
average exchange rate to convert th ese prices from NOK to EUR, despite the
fact that only very few costs used in the calculation of these prices were
derived from information averaged over the same three-year period; and
(iv) Norway has not established that the investigating authority was not entitled to
use "weight conversion factors" in establishing the costs of production used
for the purpose of calculating the "non-dumped" MIPs for five of the six
presentations of salmon.
7.727 We recall that the MIPs established by the i nvestigating authority were based on the "non-
injurious" MIPs, because these were found to be lowe r than the "non-dumped" MIPs. To the extent

843 Norway, Comments on the European Communities' Answers to Panel Questions 130 and 131.
844 We note that Norway also challenges the investigating authority's alleged failure to provide a
reasoned and adequate explanation of its MIP calculati ons under Article 12 of the AD Agreement. Our views
on this claim are set out at para. 7.834.

that we have found that the "non-dumped" MIPs calculated by the investigating authority were greater
than the relevant normal values, greater than wh at they should have been or derived through the
application of a flawed methodology, the investigating authority's finding that the "non-injurious"
MIPs were less than the "non-dumped" MIPs rested on a flawed factual basis. Thus, in imposing the
MIPs on the investigated parties at the level of the "non-injurious" MIPs, the investigating authority
did not act consistently with the obligation to ensu re that anti-dumping duties must be collected in the
"appropriate amounts", within the meaning of Article 9.2 of the AD Agreement.
7.728 We note that Norway has not asserted any basis for its allegations that the MIPs are
inconsistent with Article VI:2 that is independent of its allegations of inconsistency with Article 9.2.
Accordingly, and in the light of our finding that th e investigating authority acted inconsistently with
the EC's obligations under Article 9. 2, we consider that it is not n ecessary, in order to resolve this
dispute, to make any findings in respect of Norway 's claim that the investigating authority's MIPs
were also inconsistent with Article VI:2 of th e GATT 1994. We therefore decline to do so, on the
grounds of judicial economy.
(iii) Allegation that the MIPs imposed on the non- investigated parties were inconsistent with
Article 9.4(ii) of the AD Agreement and Article VI:2 of the GATT 1994
7.729 Norway argues that the MIPs imposed on non-inv estigated parties were inconsistent with
Article 9.4(ii) of the AD Agreement and Article VI:2 of the GATT 1994 because they exceeded the
weighted average of the normal values of the inve stigated parties. We begin our evaluation of
Norway's claim by reviewing the text of Article 9.4(ii), which reads in relevant part:
"When the authorities have limited their examination in accordance with the second
sentence of paragraph 10 of Article 6, an y anti-dumping duty applied to imports from
exporters or producers not included in the examination shall not exceed:
(i) the weighted average margin of dumping established with
respect to the selected exporters or producers or,
(ii) where the liability for payment of anti-dumping duties is
calculated on the basis of a prospective normal value, the difference
between the weighted average normal value of the selected exporters
or producers and the export prices of exporters or producers not
individually examined,
provided that the authorities shall disregard for the purpose of this paragraph any zero
and de minimis margins and margins established under the circumstances referred to
in paragraph 8 of Article 6."
7.730 As we have already noted, 845 Article 9.4(ii) requires investigating authorities applying a
"prospective normal value" to ensure that an y amount of anti-dumping duty collected from non-
investigated parties does not exceed the difference between the "weighted average normal value of the
selected exporters or producers" and the export price of the non-investigated parties. The proviso in
Article 9.4 indicates that "margins established under the circumstances referred to" in Article 6.8 must
be disregarded "for the purpose of this paragraph ". In our view, this implies that the margins of
dumping calculated on the basis of "facts available" within the meaning of Article 6.8 must be
excluded when setting the benchmark for duty collec tion in accordance with either Article 9.4(i) or
(ii). If the exclusion of such margins were only required in respect of duty collection pursuant to
Article 9.4(i), we do not see why the drafters of the provision would have explicitly stated that the

845 See, para. 7.707.

proviso was intended to operate for the purpose of the entire paragraph. Moreover, we note that the
proviso is expressed in the same sentence that includes the tw o methodologies described in
Article 9.4(i) and (ii).
7.731 In the context of Article 9.4(ii), Norway argues that the exclusion of margins of dumping
established on the basis of "facts available" means that normal values that have been calculated on the
basis of "facts available" must be disregarded in setting the appropriate level of the applicable MIP
because normal values "are an integral part of the calculation of margins".
846 We agree. Whenever
"facts available" are used to determine an inves tigated party's normal value, the margin of dumping
that is determined for that party will be establis hed on the basis of "facts available", within the
meaning of Article 6.8. Thus, the requirement that "facts available" margins be disregarded for the
purpose of setting the "prospective normal value" referre d to in Article 9.4(ii) means that any normal
values of investigated parties calculated on the basi s of "facts available" must be excluded from the
calculation of the "weighted average normal value of the selected exporters or producers". To this
extent, we find that Article 9.4(ii) sets the maximu m level of the "prospective normal value" that may
be imposed on non-investigated parties at the weighted average of the normal values of the
investigated parties, excluding any normal values ca lculated for investigated parties on the basis of
"facts available" within the meaning of Article 6.8.
7.732 Norway asserts that the MIPs imposed on the no n-investigated parties did not meet this
standard. First, for the same reasons that we ha ve explained and addressed in the previous section,
Norway argues that the "non-dumped" MIPs calculate d for each of the investigated parties exceeded
their respective normal values. As such, the weight ed average of the "non-dumped" MIPs must have
necessarily also exceeded the weighted average of the investigated parties' respective normal values.
Secondly, Norway argues that the weighted average of the "non-dumped" MIPs of the investigated
parties was flawed because: (i) it was calculated in part on the basis of the individual "non-dumped"
MIP determined for Seafarm Invest, even thoug h the Definitive Regulation reveals that the
investigating authority did not calculate an individual margin of dumping for this company, and
treated it in the same way as another company, Marine Harvest; and (ii) it was calculated in part on
the basis of the normal value determined for Grieg Seafood through the application of "facts
available".
7.733 We note that the Definitive Regulation does not indicate whether the investigating authority
actually compared the "non-injurious" MIPs with the weighted average of the "non-dumped" MIPs
calculated for each of the investigated parties for each presentation of salmon. The EC has not argued
that the investigating authority actually undertook any such assessment. However, the EC argues that,
on the basis of the "non-dumped" MIPs that were dete rmined for the investigated parties, as well as
the relevant volume and CIF turnover data, the wei ghted average of the "non-dumped" MIPs of the
investigated parties for each presentation of sal mon was greater than each corresponding "non-
injurious" MIP.847
 Reliance on the "non-dumped" MIPs ca lculated for investigated parties

7.734 We recall that the investigating authority's finding that the "non-injurious" MIPs were less
than the "non-dumped" MIPs calculated for each of the investigated parties was deficient because the
"non-dumped" MIPs were greater than the relevant normal values, greater than what they should
otherwise have been and because derived thro ugh the application of a flawed methodology.
848 I t
follows that there is no objective factual basis to s upport the EC's contention that the "non-injurious"
MIPs were less than the weighted average of the "non-dumped" MIPs determined for the investigated

846 Norway, Comments on the European Communities' Answers to Panel Questions 130 and 131.
847 EC, Answer to Panel Question 130.
848 See, para. 7.727.

parties for each presentation of salmon. In other words, because the weighted average of the "non-
dumped" MIPs for investigated parties did not amount to the weighted average of the normal values
of the investigated parties, there is no objective f actual basis for concluding that the "non-injurious"
MIPs were lower than the weighted average of the normal values of the investigated parties. Thus, we
find that the investigating authority failed to comp ly with the obligation in Article 9.4(ii) of the
AD Agreement to ensure that any MIPs imposed on non-investigated parties did not exceed the
weighted average of the normal values of the investigated parties.
 Reliance on the "non-dumped" MIPs calculated for Seafarm Invest

7.735 In its response to Panel Question 130, the EC explained that the investigating authority
calculated individual "non-dumped" MIPs for all pr esentations of salmon for Seafarm Invest. Exhibit
EC-77 shows that these "non-dumped" MIPs were diffe rent from those calculated for Marine Harvest.
However, we can find no evidence of the investig ating authority having actually determined a
company-specific margin of dumping (normal value or export price) for Seafarm Invest. On the
contrary, the investigating authority's Definitive Disclosure to Seafarm Invest noted that it had
decided to treat this company in the same way as Marine Harvest. 849 Moreover, the Definitive
Regulation shows that Seafarm Invest was attributed the same margin of dumping as Marine Harvest,
11.2 per cent. Thus, to the extent that it is based upon the unsubstantiated calculation of separate
"non-dumped" MIPs for Seafarm Invest, the EC's co ntention that the weighted average of the "non-
dumped" MIPs calculated for all of the investigated parties was greater than the "non-injurious" MIPs
for each of the presentations of salmon, rests on a flawed factual basis. In other words, to the extent
that the EC's calculation of the weighted average of the "non-dumped" MIPs for investigated parties
relies in part on the "non-dumped" MIPs of Seaf arm Invest, which cannot be substantiated on the
basis of the evidence that is be fore us, that figure cannot amount to the weighted average of the
normal values of the investigated parties. There is therefore no objective factual basis for concluding
that the "non-injurious" MIPs were lower than th e weighted average of the normal values of the
investigated parties. Thus, we find that the i nvestigating authority failed to comply with the
obligation in Article 9.4(ii) of the AD Agreem ent to ensure that any MIPs imposed on non-
investigated parties did not exceed the weighted average of the normal values of the investigated
parties.
 Reliance on the "non-dumped" MIPs calculated for Grieg Seafood

7.736 We have found elsewhere in this report that the investigating authority determined Grieg
Seafood's filleting and finance costs, and thereby Grieg's constructed normal value, on the basis of
"facts available", in a manner that was inconsiste nt with Article 6.8 and paragraph 3 of Annex II. 850
The EC's explanation of the investigating author ity's methodology for calculating the investigated
parties' "non-dumped" MIPs confirms that the co st components of Grieg's constructed normal value
that were impermissibly derived from "facts available" were used to establish its "non-dumped" MIPs.
7.737 We recall that when setting MIPs for non-investig ated parties at the level of the weighted
average of the normal values of the investigated parties, investigating authorities must ensure that they
disregard normal values determined on the basis of "facts available". 851 The EC has argued that the
weighted average of the "non-dumped" MIPs for the investigated parties, including those of Grieg,
was greater than the "non-injurious" MIPs for all presentations of salmon. For this reason, the EC
submits that the MIPs imposed on non-investigated parties were consistent with Article 9.4(ii).
However, to the extent that the weighted aver age of the "non-dumped" MIPs calculated by the EC
included the "non-dumped" MIPs for Grieg, we be lieve that the comparison made by the EC is

849 Exhibit NOR-85.
850 See, paras. 7.372 and 7.336.
851 See, para. 7.731.

flawed. This is because the inclusion of Grieg's "non-dumped" MIPs means that the weighted average
of the "non-dumped" MIPs of the investigated pa rties that the EC relies upon does not represent the
weighted average of the normal valu es of the investigated parties that is referred to in Article 9.4(ii).
Thus, the conclusion that the MIPs imposed on non- investigated parties were consistent with
Article 9.4(ii) is erroneous because there is no objec tive basis to find that they were lower than the
weighted average of the investigated parties' normal values, excluding all normal values calculated on
the basis of "facts available" . To this extent, we find that the MIPs established for the non-
investigated parties were inconsistent with Article 9.4(ii).
 Conclusion

7.738 We have found that there is no objective factual basis to support the conclusion that the MIPs
imposed on non-investigated parties were lower than the weighted average of the normal values of the
investigated parties, excluding normal values calcu lated on the basis of "facts available", for the
following reasons:
(i) the weighted average of the "non-dumped" MIPs of the investigated parties
did not amount to the weighted average of the normal values of the
investigated parties, because the "non- dumped" MIPs used for this purpose
were greater than the relevant normal values, greater than what those normal
values should have otherwise been and derived through the application of a
flawed methodology;
(ii) the weighted average of the "non-dumped" MIPs of the investigated parties
did not amount to the weighted average of the normal values of the
investigated parties, because it includes the "non-dumped" MIPs allegedly
calculated for Seafarm Invest which ca nnot be substantiated on the basis of
the evidence that is before us; and
(iii) the weighted average of the "non-dumped" MIPs of the investigated parties
did not amount to the weighted average of the normal values of the
investigated parties, because it incl udes the "non-dumped" MIPs calculated
for Grieg Seafood on the basis of "facts available".
7.739 For all of the foregoing reasons, we find that the MIPs imposed on the non-investigated
parties were inconsistent with Article 9.4(ii). Once again, we note that Norway has not asserted any
basis for its allegations that the MIPs are inconsiste nt with Article VI:2 that is independent of its
allegations of inconsistency with Ar ticle 9.4(ii). Accordingly, and in this light, we do not consider it
is necessary, in order to resolve this dispute, to make any findings in respect of Norway's claim under
Article VI:2 of the GATT 1994. We therefore declin e, on the grounds of judicial economy, to make a
finding on whether the MIPs imposed on non-investig ated parties were also inconsistent with
Article VI:2 of the GATT 1994.
(iv) Allegation that the MIPs imposed on the investigated parties were inconsistent with
Articles 9.1, 9.2 and 9.3 of the AD Agreement and Article VI:2 of the GATT 1994
7.740 Norway contends that Articles 9.1 and 9.3 of the AD Agreement and Article VI:2 of the
GATT 1994 require that, when imposing measures on the basis of MIPs, investigating authorities
must ensure that the amount of duty collected do es not exceed the margin of dumping calculated in
the original investigation. Thus, according to Norway, in imposing a system of measures based on
MIPs on the investigated parties, the EC should have applied a mechanis m to ensure that the
collection of a duty greater than the ad valorem equivalent of the margin of dumping from the original

investigation was not possible. In Norway's view , the EC's failure to do so, meant that it acted
inconsistently with these provisions.
7.741 The EC argues that anti-dumping duties collected from investigated parties on the basis of a
MIP do not need to be capped at the ad valorem equivalent of the margin of dumping calculated in the
original investigation. In this regard, the EC subm its that investigating authorities applying MIPs to
investigated parties are entitled to collect anti-dumping duties in the amount of the difference between
the MIP that is imposed and the relevant export price of the transactions being assessed. The EC finds
support for this in Article 9.4(ii), which specifically envisages that the total duty amount to be
collected from non-investigated parties through the application of a MIP should be the difference
between the weighted average normal values of the investigated parties and the export price of the
relevant non-investigated party. In addition, the EC argues that the "margin of dumping" that is
referred to in Article 9.3 is the "margin of dumpi ng" that is determined for imports on which anti-
dumping duties have already been charged, in the co ntext of a refund proceeding under Article 9.3.2.
Thus, according to the EC, the obligation under Article 9.3 to collect anti-dumping duties in an
amount which does not exceed the "margin of dumping as established under Article 2" does not refer
to the margin of dumping in the original investiga tion, but to the margin of dumping determined for
the purpose of a refund proceeding.
7.742 In essence, we understand Norway to be arguing th at in the context of the application of a
MIP system to collect anti-dumping duties from investigated parties, the maximum amount of duty
that may be collected is set at the difference betw een the individual normal values of the investigated
parties and their individual export prices, provided that this difference does not exceed the ad valorem
equivalent of the margin of dumping calculated in the original investigation . In other words, Norway
contends that there is a cap on the amount of duty that may be collected through the use of the
application of a MIP from an investigated party at the level which corresponds to the margin of
dumping calculated in the original investigation.
7.743 As we have noted elsewhere in this report, Article 9 regulates the imposition and collection of
anti-dumping duties. Pursuant to Article 9.3, invest igating authorities must ensure that the amount of
the anti-dumping duty collected does not "ex ceed the margin of dumping as established under
Article 2". In our view, this obligation reflects Article VI:2 of the GATT 1994, which provides that
anti-dumping duties may be levied on any dumped product in an amount "not greater ... than the
margin of dumping in respect of that product". The parties argue that Article 9.3 of the
AD Agreement applies equally to all duty collection systems, including those relying on a
"prospective normal value" or allege dly equivalent MIP, as is the case in the present dispute. We
agree, and believe that the same may be said for Article VI:2 of the GATT 1994. Moreover, to the
extent that the AD Agreement is intended to impl ement Article VI of the GATT 1994, we consider
Article 9.3 to be particularly instructive in id entifying the circumstances when the obligation under
Article VI:2 will be satisfied.
7.744 The modalities for ensuring compliance with Arti cle 9.3 are set out in three sub-ordinate
paragraphs. The first of these, Article 9.3.1, addresses duty assessment in the context of retrospective
systems of duty collection. Retrospective dut y assessment systems operate by virtue of the
assessment of final liability for the payment of an ti-dumping duties on a retrospective basis, that is,
after imports have been undertaken. In US – Zeroing (Japan) , the Appellate Body explained that the
obligations on investigating authorities operating such systems include the requirement to:
"ensure that the total amount of anti-dumping duties collected from all the importers
of [the product under consideration] does not exceed the total amount of dumping

found in all sales made by the exporter or foreign producer, calculated according to
the margin of dumping established for that exporter or foreign producer ... ."
852
7.745 The Appellate Body made this observation in the context of its assessment of whether the
collection of anti-dumping duties on imports made on a transaction- or importer-specific basis
involved the calculation of margins of dumping. 853 In this regard, we note that it is well established
that duty collection or assessment proceedings take place after the imposition of an anti-dumping
measure, and relates to import sales made over a period of time which starts and finishes beyond the
period of investigation used in the original investig ation. Thus, the Appellate Body's reference to the
"total amount of dumping found in all sales by the exporter or foreign producer" must necessarily
refer to the amount of dumping corresponding to the margin of dumping calculated for sales made
after the original investigation. Therefore, the Appe llate Body's statement does not support the view
that the "margin of dumping" that is relevant fo r the purpose of determining the maximum amount of
anti-dumping duty that may be collect ed under Article 9.3 in a retrospective duty assessment system
must correspond to the ad valorem equivalent of the margin of dumping calculated in the original
investigation.
7.746 Article 9.3.2 explains how investigating author ities may go about ensuring that the amount of
anti-dumping duty does not exceed the "margin of dump ing as established under Article 2" when the
amount of anti-dumping duty is assessed "on a prospective basis". Article 9.3.2 reads:
"When the amount of the anti-dumping duty is assessed on a prospective basis,
provision shall be made for a prompt refund, upon request, of any duty paid in excess
of the margin of dumping. A refund of any such duty paid in excess of the actual
margin of dumping shall normally take place within 12 months, and in no case more
than 18 months, after the date on which a request for a refund, duly supported by
evidence, has been made by an importer of the product subject to the anti-dumping
duty. The refund authorized should normally be made within 90 days of the
above-noted decision." (Emphasis added.)
7.747 It is instructive for present purposes to note th at Article 9.3.2 requires that investigating
authorities assessing the amount of anti-dumping duty "on a prospective basis" must, on request,
refund any duty collected in excess of the "actua l margin of dumping". Arguably, the same
requirement applies to prospective normal value systems of duty assessment.
854 As the Panel in
Argentina – Poultry Anti-Dumping Duties observed, the dictionary definitions of the word "actual"
include "existing now; current". 855 Like that panel, we also consid er that this terminology indicates
that investigating authorities operating prospective normal value systems must, on request, provide for
a refund of duties paid in excess of the margin of dumping prevailing " at the time the duty is
collected".856 In other words, Article 9.3.2 establishes a mechanism for ensuring that the maximum
amount of anti-dumping duty that may be collected when duty is assessed on the basis of a
prospective normal value is equivalent to the marg in of dumping determined for the sales that are
subject to duty assessment.
7.748 Thus, to the extent that the operation of Articl es 9.3.1 and 9.3.2 is intended to result in the
final collection of anti-dumping duties in amounts corresponding to the levels of dumping found on
the export transactions that are subject to duty assessme nt, it follows that the "margin of dumping" for

852 Appellate Body Report, US – Zeroing (Japan), para. 156.
853 Appellate Body Report, US – Zeroing (Japan), paras. 152-156.
854 Panel Report, US – Zeroing (Japan) , para. 7.204; Appellate Body Report, US – Zeroing (Japan) ,
paras. 159-160.
855 Panel Report, Argentina – Poultry Anti-Dumping Duties, para. 7.361.
856 Panel Report, Argentina – Poultry Anti-Dumping Duties, para. 7.361. Emphasis added.

the purpose of Article 9.3 cannot be limited to the "margin of dumping" established during the
original investigation.857 We find additional contextual support fo r this conclusion in Article 9.4(ii),
which as we have previously explained, explic itly sets the maximum limit on the amount of anti-
dumping duties that may be collected from non-investigated parties through the application of a
prospective normal value or equivalent MIP at th e difference between the weighted average normal
values of the investigated parties and the export pri ce of the relevant non-investigated party. We see
no reason why an investigating authority should not be entitled to collect anti-dumping duties in the
same way through the application of a prosp ective normal value or equivalent MIP to investigated
parties. In this respect, we understand the Appellate Body to be of the same view:
"In a prospective normal value system , the authorities announce in advance a
prospective normal value that applies to future entries of a given product and anti-
dumping duties are assessed on the basis of the difference between this "prospective
normal value" and the prices of individual export transactions for that product."
858
7.749 For all of the above reasons, we find that the obligation in Article 9.3 to ensure that anti-
dumping duties are not collected in excess of the "margin of dumping as established under Article 2"
does not require that any anti-dumping duties collect ed not exceed the margin of dumping calculated
in the original investigation . Thus, in the specific context of prospective normal value systems of
duty assessment, such as the one applied by the EC in the present investigation, we do not believe that
Article 9.3 prevents investigating authorities fro m collecting anti-dumping duties from investigated
parties in excess of the ad valorem equivalent of the margin of dumping calculated in the original
investigation, when such an amount of duty represen ts the difference between an investigated party's
normal value and the export price of the transaction subject to duty assessment. On this basis, we find
that Norway has failed to establish that the EC acted inconsistently with Article 9.3 of the
AD Agreement and Article VI:2 of the GATT 1994 because of its failure to adopt a mechanism, in the
operation of the MIPs it imposed, which ensured that an anti-dumping duty greater than the ad
valorem equivalent of the margin of dumping from the original investigation could not be collected.
7.750 We note that Norway has also claimed that the MIPs adopted by the investigating authority
were inconsistent with Article 9.1 of the AD Agreement. Norway makes essentially the same
arguments in support of this claim presented to s ubstantiate its claims under Articles 9.3 of the
AD Agreement and Article VI:2 of the GATT 1994. Article 9.1 reads:
"The decision whether or not to impose an anti-dumping duty in cases where all
requirements for the imposition have been fulfilled, and the decision whether the
amount of the anti-dumping duty to be imposed shall be the full margin of dumping
or less, are decisions to be made by the authorities of the importing Member. It is
desirable that the imposition be permissive in the territory of all Members, and that
the duty be less than the margin if such l esser duty would be adequate to remove the
injury to the domestic industry". (Underline added.)
7.751 The focus of Norway's claim is on the underlined language.
859 As we understand it, Norway
argues that through this language Article 9.1 estab lishes that investigating authorities are entitled to
"impose" anti-dumping duties that are less than the full margin of dumping, but in no case can an
investigating authority "impose" duties that exceed the full margin of dumping. Irrespective of the
question whether the language Norway relies upon actually establishes any obligation to ensure that

857 Panel Report, Argentina – Poultry Anti-Dumping Duties, para. 7.361.
858 Appellate Body Report, US – Zeroing (Japan), footnote 367.
859 Norway, FWS, para. 658.

anti-dumping duties reflect the "full margin of dumping or less",
860 we recall that we have found that
pursuant to Article 9.3, the margin of dumping that is relevant for the purpose of the collection of
anti-dumping duties is that prevailing at the time of duty assessment. As such, even if Article 9.1
were an appropriate legal basis to bring the clai m that is before us, our findings in respect of
Article 9.3 imply that the MIPs established by the investigating authority were not inconsistent with
Article 9.1. We therefore dismiss Norway's claim under Article 9.1 of the AD Agreement.
7.752 Finally, we understand Norway's claim in resp ect of Article 9.2 to be consequential and
dependent upon its claims under Articles 9.1 and 9. 3 of the AD Agreement and Article VI:2 of the
GATT 1994. In the light of our findings in resp ect of Norway's core claims, we also dismiss
Norway's consequential claim under Article 9.2.
2. Alleged Inconsistency of the Imposition Of Fixe d Duties with Articles 9.1, 9.2 and 9.3 of
the AD Agreement
(a) Arguments of the Parties
(i) Norway
7.753 Norway submits that the fixed duties imposed by the investigating authority are anti-dumping
duties that fall within the scope of the AD Agreem ent, and therefore subject to the disciplines of
Articles 9.1, 9.2 and 9.3.
861 Relying on the same arguments advan ced in support of its contention that
Articles 9.1 and 9.3 of the AD Agreement prohibit th e imposition of MIPs that result in the collection
of anti-dumping duties greater than margins of du mping calculated in the original investigation, 862
Norway argues that any fixed duties applied to investigated parties must also not exceed the
respective margins of dumping determined in the orig inal investigation. Thus, in setting the fixed
duties for the investigated parties in the present proceeding, Norway contends that the investigating
authority was obliged under Articles 9.1 and 9.3 of the AD Agreement to ensure that they did not
exceed the respective margins of dumping calculate d in the original investigation. However,
according to Norway, for certain price ranges, the fi xed duties imposed by the investigating authority
could in fact be greater than the margins of dumpi ng determined for five of the investigated parties
during the original investigation. To this extent, Norway claims that the fixed duties imposed by the
investigating authority were inconsistent with Articles 9.1 and 9.3 of the AD Agreement, and as a
consequence, also Article 9.2.
(ii) European Communities
7.754 The EC argues that the fixed duties do not fall within the scope of the AD Agreement because
they do not amount to "specific action against dum ping" within the meaning of Article 18.1 of the
AD Agreement.863 In any case, in so far as the fixed duties imposed on the investigated parties may
result in the collection of anti-dumping duties great er than those permitted under Article 9 of the
AD Agreement, the EC submits that the inconsiste ncy would be justified unde r Article XX(d) of the
GATT 1994. In this regard, the EC notes that th e fixed duties are necessary to secure compliance
with the anti-dumping measures imposed on salmon imports, as well as the obligations under ordinary
customs law of the 27 EU Member States for importers to make truthful declarations regarding the
value of goods that they are entering into the EC. Thus, the EC contends that the fixed duties fall

860 Arguably, the first sentence of Article 9.1 could be read as suggesting that the only obligation it
imposes is to ensure that the two decisions that are referred to therein are taken "by the authorities of the
importing Member".
861 Norway's arguments in this respect have already been summarised above at para. 7.409.
862 See, paras. 7.677-7.678.
863 The EC's arguments in this respect have already been summarised above at para. 7.408.

within the terms of Article XX(d) of GATT 1994 because they are "necessary to secure compliance
with laws or regulations which are not inconsistent with the provisi ons of this Agreement, including
those relating to customs enforcement".
(b) Evaluation by the Panel
7.755 As we have outlined elsewhere in this report, 864 the fixed duties imposed by the investigating
authority formed part of the "double system of measures" applied at the end of the original
investigation to all imports of salmon from Norway . A fixed amount of duty equivalent to the
weighted average injury margin of 14.6 per cent was calculated for all six presentations of salmon,
and applied equally to imports of salmon from all No rwegian producers, whether or not investigated.
The fixed duties would only become payable when certain conditions are met. In summary, as
explained in the Definitive Regulation, the fixed duty will be payable when "it is found following
post-importation verification" that the "net free-at-C ommunity frontier price actually paid by the first
independent customer in the Community" (the "act ual price") is both below the price declared to
customs and below the relevant MIP, provided that the payment of the fixed duty would result in a
final import price at or above the MIP.865
7.756 We note that Norway has not challenged the le gality of the "double system of measures" –
that is, Norway has not challenged the investigating authority's imposition of both MIPs and fixed
duties. Rather, Norway's complaint in respect of th e fixed duties is confined to the assertion that for
certain price levels, the fixed duties collected w ill exceed the margins of dumping calculated for five
of the investigated parties during th e original investigation. In par ticular, Norway's claim is focused
on the situations when the payment of the fixed duty would have this result and the final import price
after payment of the duties would be above the MIP. Norway presents the following table to explain
and substantiate its factual assertions:866
 Product (all
fresh, chilled,
or frozen)
MIP (€) Actual Price
(€)
Fixed
Duty (€)
Ad
Valorem
Equiv.
Fjord Marine
Harvest
Seafarm
Invest
Stolt
Sea
Farm
Sinkaberg
Hansen
2.80/kg 2.41/kg (L) 0.40/kg 16.6% 15.0% 11.2% 11.2% 10.0% 2.6% 1 Whole fish
2.80/kg 2.79/kg (H) 0.40/kg 14.3% 15.0% 11.2% 11.2% 10.0% 2.6%
3.11/kg 2.67/kg (L) 0.45/kg 16.8% 15.0% 11.2% 11.2% 10.0% 2.6% 2 Gutted, head-
on
3.11/kg 3.10/kg (H) 0.45/kg 14.5% 15.0% 11.2% 11.2% 10.0% 2.6%
3.49/kg 3.00/kg (L) 0.50/kg 16.7% 15.0% 11.2% 11.2% 10.0% 2.6% 3 Other fish,
fresh, chilled
or frozen 3.49/kg 3.48/kg (H) 0.50/kg 14.4% 15.0% 11.2% 11.2% 10.0% 2.6%
5.01/kg 4.29/kg (L) 0.73/kg 17.0% 15.0% 11.2% 11.2% 10.0% 2.6% 4 Fillets of more
than 300 g,
skin on
5.01/kg 5.00/kg (H) 0.73/kg 14.6% 15.0% 11.2% 11.2% 10.0% 2.6%

864 See, paras. 7.691-7.700.
865 See, paras. 7.691-7.700.
866 Norway, FWS, para. 679.

 Product (all
fresh, chilled,
or frozen)
MIP (€) Actual Price
(€)
Fixed
Duty (€)
Ad
Valorem
Equiv.
Fjord Marine
Harvest
Seafarm
Invest
Stolt
Sea
Farm
Sinkaberg
Hansen
6.40/kg 5.48/kg (L) 0.93/kg 17.0% 15.0% 11.2% 11.2% 10.0% 2.6% 5 Fillets of more
than 300 g,
skin off 6.40/kg 6.39/kg (H) 0.93/kg 14.6% 15.0% 11.2% 11.2% 10.0% 2.6%
7.73/kg 6.62/kg (L) 1.12/kg 16.9% 15.0% 11.2% 11.2% 10.0% 2.6% 6 Fillets of less
than 300g
7.73/kg 7.72/kg (H) 1.12/kg 14.5% 15.0% 11.2% 11.2% 10.0% 2.6%

(L) = the lowest "actual price" at which the payment of the fixed duty would be necessary and result in a final import price
above the MIP.
(H) = the highest "actual price" at which the payment of the fixed duty would be necessary and result in a final import price
above the MIP.

7.757 The EC has not specifically contested the information contained in this table. Indeed, it is our
understanding that the EC acknowledges that for certa in price ranges, the application of the fixed
duties could result in the collection of anti-dum ping duties that exceed the margins of dumping
calculated for the above-mentioned investigated parti es in the original investigation. However, the
EC defends this result by arguing, firstly that the fixed duties are not anti-dumping duties falling
within the scope of the AD Agreement, and secondly, that, in any case, even if the fixed duties could
result in a violation of Article 9 of the AD Agreemen t, they are nevertheless justified under the terms
of the general exception set out in Article XX(d) of the GATT 1994.
7.758 We recall that we have already found that the investigating authority's imposition of the fixed
duties amounted to "specific action against dumpi ng" within the meaning of Article 18.1 of the
AD Agreement.
867 As such, the fixed duties are subject to the disciplines of Article 9. We therefore
first turn to address Norway's claim that the fixed duties were inconsistent with Articles 9.1 and 9.3
because of the fact that, for certain price ranges, they result in the collection of anti-dumping duties
greater than the margins of dumping determined for fi ve of the investigated parties during the original
investigation.
7.759 We note that Norway's claim is premised on th e same view of how Article 9.3 disciplines the
imposition and collection of anti-dumping duties that it advanced in respect of its claim relating to the
MIPs imposed by the investigating authority on the investigated parties.868 Namely, Norway contends
that the obligation on investigating authorities not to collect an amount of anti-dumping duty that
exceeds the "margin of dumping as established under Ar ticle 2" implies that investigating authorities
are not entitled to impose any measures that result in the collection of anti-dumping duties that exceed
the margin of dumping determined for investigated parties in the original investigation . In other
words, Norway sees the margin of dumping determin ed for investigated parties during the original
investigation as a cap on the maximum amount of anti-dumping duties that may be imposed on
investigated parties in duty collection proceedings.
7.760 We recall that we have already addressed Norway 's arguments in respect of Article 9.3, and
rejected them.
869 In particular, we have determined that the obligation in Article 9.3 to ensure that
anti-dumping duties are not collected in excess of the "margin of dumping as established under
Article 2" does not prohibit an investigating authority from imposing and collecting anti-dumping
duties in excess of the margin of dumping calculated in the original investigation . In the specific

867 See, paras. 7.411-7.418.
868 See, paras. 7.677-7.678.
869 See, paras. 7.740-7.749.

context of duty assessment conducted "on a prospective b asis", which is the situation that is before us
at present as regards the application of the fixed duti es, what is important in terms of compliance with
Article 9.3 (and Article 9.1 870) of the AD Agreement is that any duties imposed and collected on
investigated parties do not exceed the actual margin of dumping determined on the sales that are
subject to duty assessment. In essence, this follows from the fact that pursuant to Article 9.3.2,
investigating authorities must refund any duty collect ed in excess of the "actual margin of dumping"
for sales that are subject to duty assessment.871
7.761 Thus, we find that Norway's claim that the fixed duties imposed by the investigating authority
were inconsistent with Articles 9.1 and 9.3 of the AD Agreement cannot be upheld. Consequently,
we also dismiss Norway's claim in respect of Artic le 9.2 of the AD Agreement, which we understand
to be entirely dependent upon its claims under Articles 9.1 and 9.3 of the AD Agreement.
J. ALLEGED INCONSISTENCY OF THE EC'S CONDUCT OF THE PROCEEDINGS WITH ARTICLES 6.2,
6.4, 6.9, 12.2 AND 12.2.2 OF THE AD AGREEMENT
1. Alleged Inconsistency with Articles 6.4 and 6.2
(a) Arguments of the parties
(i) Norway
7.762 Norway claims that the EC acted inconsis tently with Articles 6.4 and 6.2 of the
AD Agreement because it failed to disclose non-confiden tial information contained in the record of
the investigation. Norway argues that Articles 6. 2 and 6.4 require an investigating authority to
provide access to all relevant information in the non- confidential record of the investigation, and that
the EC failed to do so, as demonstrated by the fact that a number of documents that had been filed by
interested parties were missing from the non-confid ential record that was accessible at the EC
Commission's premises. Norway refers in this rega rd to its letter of 4 August 2006, in which it
outlined the circumstances surroundi ng the EC's alleged failure to disclose all non-confidential
documents in the record. Norwegian officials insp ected the non-confidential record at the offices of
the EC, and concluded that numerous documents of whose existence Norway was aware were not in
the record. Norway notes that the EC did not provide a master list or index to the non-confidential
record on the basis that there is no requirement to do so in the AD Agreement. Annex 3-A to
Norway's letter of 4 August 2006 lists all the doc uments that were included in the non-confidential
record.872 Annex 3-B to that letter lists 68 documents that Norway knows, or has reason to believe,
were submitted in the investigation but that were missing from the record it was permitted to
inspect.873 Because Norway does not know what docu ments were submitted to the EC, the list
provided in Annex 3-B is indicative and not an exhaustive list of documents that were not disclosed to
Norway. Norway maintains that the missing do cuments cover all aspects of the investigation,
including the investigation of both dumping and injury . Norway asserts that the information in these
documents is relevant to the presentation of Norwegian parties' interests.

870 We believe our discussion on the relevance of Artic le 9.1 to Norway's claim in respect of the MIPs
to be equally pertinent to Norway's claim in respect of the fixed duties.
871 See, para. 7.747.
872 Exhibit NOR-13.
873 Exhibit NOR-13. Norway lists the following categories of documents as missing: (a) sampling
forms and questionnaire responses provided by EC domestic producers; (b) questionnaire responses (or other
communications) from EC "importers users and processors"; (c) questionnaire responses (or other
communications) from EC "users' associations"; (d) all submissions by the Government of Norway; (e) all
submissions by FHL; and (f) numerous submissions by all ten sampled Norwegian companies and by a related
company that was requested to provide a questionnaire response. Norway, FWS, para. 700 and footnotes 558-
561.

7.763 Norway also argues that certain exhibits presente d by the EC to the Panel in this case contain
information that was not before the investigating au thority, and must therefore be excluded from this
dispute. In the alternative, Norway argues that if the Panel concludes that this information was before
the investigating authority, the EC violated Article 6.4 by failing to disclose that information to
Norway.
874
(ii) European Communities
7.764 The EC considers that Norway's claims rega rding alleged lack of access to relevant non-
confidential information during the investigation ar e based on a fundamental misunderstanding of the
law, and fail to take into account that Norway was granted access on numerous occasions to all
relevant non-confidential information during the entir e duration of the investigation. The EC points
out that Norway's arguments refer to a lack of access to the "non-confidential" or "public" record,
without describing what that "record" is. The EC notes that the word "record" is in neither Article 6.2
nor Article 6.4. For the EC, these provisions do not impose any obligation on WTO members to
establish a "record" of all information submitted by an y interested party during the investigation, and
in particular, Article 6.4 does not regulate how a Me mber stores, manages, distributes internally, or
otherwise processes such information. In support of its view in this regard, the EC points to the fact
that proposals (by Norway) in the current negotiations on the AD Agreement would specifically
provide for such record-keeping requirements.
7.765 The EC also asserts that Article 6.4 does not require the investigating authority to fully
disclose all (non-confidential) documents submitted to all other interested parties, as it specifically
provides that information must be disclosed to inter ested parties if it is "relevant to the presentation of
their cases". For the EC, this mean s that the investigating authority may decide to which information
access should be granted. In any event, the EC emphasizes that it provided repeated and timely
opportunities for Norway to have access to all relevant information on numerous occasions.
Norwegian authorities reviewed the non-confidential files on six dates,
875 and the EC made available
to Norway all the non-confidential information it ha d gathered as of each of those dates. The EC
investigating authority did not e ngage into any assessment of whether or not requested information
was relevant to Norway's case or not. The EC asserts that the fact that documents are not in Norway's
files does not prove that Norway was not grante d access to all the non-confidential documents in the
investigation.
7.766 The EC maintains that it had no obligation to show the 68 "missing" documents referred to by
Norway. The EC argues that simply because Norway knows they were submitted does not mean that
they were relevant, non-confidential, and used by th e investigating authority. The EC maintains that
there were valid reasons for not including these documents in the investigation files, inter alia: lack
of a non-confidential version, subject matter not re levant to exporters, or government-to-government
correspondence.876 The EC maintains that the fact that Norwegian representatives did not find 68
"irrelevant or confidential or not used documents" when they inspected the files does not demonstrate
a violation of Article 6.4

874 Norway refers specifically to Exhibits EC-2, EC-10, EC-12, EC-13, EC-14, EC-15, and EC-16.
Norway, SWS, para. 228.
875 22 December 2004; 12 January 2005; 18 May 2005; 28 and 29 November 2005; and
23 December 2005.
876 EC, SWS, paras. 243-246.

(b) Arguments of third parties
(i) United States
7.767 Regarding Norway's claim relating to the proper interpretation and application of Articles 6.2
and 6.4 of the AD Agreement, the United States not es that Article 6.2 provides that "all interested
parties shall have a full opportunity for defence of th eir interests," and Article 6.4 provides in relevant
part that "authorities shall whenever practicable provide timely opportunities to see all information
that is relevant to the presentation of their cases, that is not confidential . . ., and that is used by the
authorities in an anti-dumping investigation." The US observes, with respect to the EC's assertion that
"the investigating authority may decide on whic h information access should be granted or not" 877
that, as the EC concedes, relevance must be asse ssed from the perspective of the interested party
presenting its case. 878 The US considers that the EC's asserti on that "the investigating authority may
not disclose information it has received from one inte rested party to another interested party, unless it
is relevant for the preparation of the latter's case," 879 is not supported by the text of Article 6.4, which
contains an affirmative obligation to disclose info rmation in certain circumstances, not a prohibition
against such disclosure. The US argues that Article 6.4 establishes a rule regarding when an authority
must disclose information, and not when it must withhold information.
(c) Evaluation by the Panel
7.768 We begin our analysis by considering the text of Article 6.4 of the AD Agreement, which
provides:
"The authorities shall whenever practicable provide timely opportunities for all
interested parties to see all information that is relevant to the presentation of their
cases, that is not confidential as defined in paragraph 5, and that is used by the
authorities in an anti-dumping investigation, and to prepare presentations on the basis
of this information."
This provision plainly and unambiguously requires an investigating authority, "whenever practicable"
to provide "timely" opportunities for any interested pa rty to see "all information" that is "relevant" to
the presentation of its case, that is not confidential, and that is "used" by the investigating authority.

7.769 It seems clear to us that the timeliness of th e opportunities must be assessed by reference to
the right of the interested parties to prepare presenta tions on the basis of the information seen. It is
similarly clear to us that whether particular in formation is relevant is not determined from the
investigating authorities' perspective, but with re ference to the issues to be considered by the
investigating authority under the AD Agreement.
880 Thus, information which relates to issues which
the investigating authority is required to consider under the AD Agreement, or which it does, in fact,
consider, in the exercise of its discretion, dur ing the course of an anti-dumping investigation,
presumptively falls within the scope of Article 6.4. 881 Clearly, an investigating authority may not
allow interested parties to see information whic h is properly treated as confidential under the

877 EC, FWS, para. 531.
878 EC, FWS, para. 531.
879 EC, FWS, para. 531.
880 We find support for this conclusion in the views of the Appellate Body in EC – Tube and Pipe
Fittings, paras. 145-146.
881 We thus reject the view of the EC that, in the context of whether information is relevant to the
presentation of an interested party's case, "the investigating authority may decide on which information access
should be granted". EC, FWS, para. 531.

AD Agreement.
882 Finally, the question of whether info rmation is "used" by the investigating
authority cannot, in our view, be assessed from th e perspective of whether the information is
specifically referred to or relied upon by the inves tigating authority in its determination. If the
investigating authority evaluates a question of fact or an issue of law in the course of an anti-dumping
investigation, then, in our view, all information rele vant to that question or issue that is before the
investigating authority must necessarily be considered by the investigating authority, in order to make
an objective and unbiased decision. Consequently, it seems clear to us that whether information is
"used" by the investigating authority must be asse ssed by reference to whether it forms part of the
information relevant to a particular issue that is be fore the investigating authority at the time it makes
its determination.883
7.770 We note that the EC contests strongly Norway's reliance on the concept of a "record" in the
investigation, arguing that this word does not app ear in the AD Agreement, and that there are no
obligation on WTO Members concerning how to or ganize the administrative details of an anti-
dumping investigation. The EC considers that ea ch Member "may choose the appropriate method of
ensuring that it complies with its WTO obligations", and that nothing in the AD Agreement governs
the "internal housekeeping prerogatives of a Member. 884 We do not disagree. As the EC points out,
there are no specific requirements governing how a WTO Member organizes and maintains its files,
how it receives and processes information and submissions, or how it ensures that it complies with its
obligations under the AD Agreement.
885 However, it is this latter aspect that we must assess –
whether the EC has complied with its obligations under Article 6.4 of the AD Agreement. If we find
that it has not, it will not be because it failed to organize its documentary information and
investigative files in a particular way, but because we have concluded that, however it organized such
matters, it failed to substantively comply with the obligation to provide timely opportunities for
interested parties to see all relevant, non-confidentia l information relevant to the presentation of their
cases.
7.771 The EC has not contended that the 68 documen ts listed in Exhibit NOR-13 were, in fact,
among the information seen by Norwegian represen tatives when granted access to non-confidential
information during the course of the investigation. Rather, the EC disputes the implication that it had
an obligation to show these docum ents to Norway. The EC admits that these documents were
submitted to the investigating authority,886 but considers that the investigating authority is not required
to include in the investigation files all documents submitted, and is only required to provide access
under Article 6.4 to information it has included in th e investigation files. The EC asserts that to
require otherwise would be "at odds with the functi ons of the investigating authority to determine
whether or not submitted documents are relevant or not for the investigation, whether they are
confidential and whether they should be used by the investigating authority." 887 We cannot agree. In
our view, unless information submitted to the investigating authority is rejected, that information must
remain in the investigating authorities' files, and if it is relevant, not confidential, and used by the
investigating authority, as discussed above, interested parties must be given timely opportunities to
see it.

882 Except to the extent that disclosure is made pursuant to protective orders, as provided for in
footnote 17 of the AD Agreement.
883 We find support for this conclusion in the views of the Appellate Body in EC – Tube and Pipe
Fittings, para. 147.
884 EC, FWS, para. 523.
885 The lack of such specific requirements is not surprising, given the various legal and administrative
structures pursuant to which Members operate their anti-dumping systems.
886 EC, FWS, para. 241, referring to the "frustration of a WTO Member not to find documents, that it
knows to have been submitted, also in the investigation file of an investigating authority", para. 242, referring to
asserted grounds "for not including the 68 documents into the investigation files."
887 EC, SWS, para. 241.

7.772 With these principles in mind, we consider the sp ecific allegations made by Norway in this
case. Norway has listed 68 documents 888 it is aware were submitted to the investigating authority,
which were not among the information which Norwegian representatives saw when given the
opportunity to see information during the investigation. 889 The EC responds that there were various
reasons why the 68 documents were not included in the investigation files. The EC has not identified
which particular documents were not included for which reasons, but has defended its position on the
basis of more general arguments.890
7.773 First, the EC asserts that a number of th e documents were submitted by exporters, and
contained confidential information, but that no non-confidential version was provided by the
submitting exporter, in violation of Article 6.5.1 of the AD Agreement. Ther efore, the investigating
authority did not include it in the files made available to interested parties under Article 6.4. While
we are concerned that the failure of parties to submit non-confidential versions of documents provided
to the investigating authority may result in limitat ions on the rights of interested parties to see
information as provided for in Article 6.4, there is no claim in this dispute that the EC wrongly treated
information as confidential. 891 Article 6.4 clearly excludes confidential information from the
information which must be made available for inter ested parties to see, and therefore, to the extent
that information in the 68 documents was c onfidential, we conclude that the EC did not violate
Article 6.4 by failing to provide timely opportunitie s for interested parties to see such confidential
information.
7.774 Next, the EC asserts that other documents rela ted to the question of "Community interest",
which does not correspond to any provision in the AD Agreement, and thus is not relevant to
exporters. As discussed above, in our view, informa tion pertaining to any issue that is considered and
decided by the investigating authority, even one wh ich is not specifically required to be considered
and decided under the AD Agreement, is to be c onsidered "relevant" within the meaning of
Article 6.4. Thus, to the extent that information in the 68 documents was not confidential, but related
to the question of "Community interest", we concl ude that the EC violated Article 6.4 by failing to
provide timely opportunities for interested parties to see such information.892
7.775 With respect to a letter from Dr. Jaffa, documen t No. 34 in Annex 3-B to Exhibit NOR- 13,
the EC argues that it was not germane to the invest igation or determinations. The EC asserts that
Dr. Jaffa was not an interested pa rty, did not represent any interested party, made representations to

888 Norway contends that the missing documents fell into four categories and contained information as
follows: 1) sampling replies and questionnaire rep lies of sampled and non-sampled EC producers, with
attachments; 2) submissions of EC "users" and "user" associations on the "deepened investigation on
Community interest"; 3) documents submitted by sampled and non-sampled Norwegian companies, including
sampling forms, and comments on the authority's Information Notes and disclosures; and, 4) communications
from other parties, including FHL and the Government of Norway, on dumping. Norway's SOS, para. 105.
889 In this regard, we note that we accept the re presentations of Norway as to what was in the
investigation files and seen by its representatives, and what documents it was aware had been submitted but
were not seen, as described in Exhibits NOR-13, NOR-90, NOR-91, NOR-88, and NOR-89. The EC has
brought forward no evidence that contradicts those representations, and we discount the unsupported suggestion
that there may have been mistakes made in copying the files seen. EC, FWS, para. 535.
890 In addition, Norway asserts that information in a series of exhibits presented to the Panel is not
properly before us, or, if it was in the investigation files and is therefore properly before us, was not among the
information which Norwegian representatives saw when given the opportunity to see information during the
investigation. Norway's allegations in this regard are addressed below, at paras. 7.835 - 7.860.
891 Nor is there any claim concerning the apparent lack of non-confidential summaries of some
confidential information submitted to the investigating authorities.
892 We note that the EC has not argued that this information was not "used" by the investigating
authority.

EC authorities (to which a reply was made as a matter of courtesy),
893 and continued to make
unsolicited observations, including the letter in quest ion, the substance of which was doubtful as to its
nature and accuracy, and no "non-limited" version w as provided for the file accessible to parties. The
EC states the investigating authority was "uncertain whether it could discard the letter right away" and
left the question open "given th at the issues raised we re issues regarding domestic production". The
investigating authority requested representatives of the EU Salmon Producers Group to comment on
Dr. Jaffa's letter on a provisional basis, and later decided not to consider the letter pertinent to the
investigation, and informed Dr. Jaffa that he was not considered to be an interested party. 894 We can
find nothing in this recounting of events that would provide a basis for declining to provide
opportunities for interested parties to see this documen t. It clearly contained information regarding a
relevant issue, domestic production, there is no contention that it was confidential, and in our view,
the fact that the investigating authority requested representatives of the domestic industry to comment
on it demonstrates that it was used by the investiga ting authority. There is no indication that the
investigating authority rejected Dr. Jaffa's submission as irrelevant, untimely, or for any other reason.
Thus, we conclude that the EC violated Article 6.4 by failing to provide timely opportunities for
interested parties to see Dr. Jaffa's letter.
7.776 Finally, the EC asserts that 15 of the documents referred to by Norway are Notes Verbales of
the Norwegian government, that were treated as "government-to-government correspondence, not to
be included in the file." 895 The EC contends that, should Norway (an interested party in the
investigation) have wanted them to be included in the file, it should have produced non-confidential
versions of them. However, there is no indica tion that the Government of Norway requested
confidential treatment of these submissions, nor is there any contention by the EC that the
investigating authority considered them to be c onfidential under Article 6.5 of the AD Agreement.
Nor has the EC argued that the information in these Notes Verbales is irrelevant, or was not used by
the investigating authorities. In th ese circumstances, we conclude that the EC violated Article 6.4 by
failing to timely provide opportunities for interested parties to see such information.
7.777 Having found that the EC violated Article 6.4 by failing to provide timely opportunities for
interested parties to see all non-confidential informat ion relevant to the presentation of their cases, we
do not consider it either necessary or appropriate to address Norway's claim, based on the same facts
and arguments, under Article 6.2 of the AD Agreem ent. A finding under Article 6.2 would be
exclusively a consequence of our findings under Artic le 6.4, and would therefore add nothing to the
parties' understanding of the obligations under the AD Agreement, or to the ability of the European
Communities to comply with our decision in the context of implementation.
2. Alleged Inconsistency with Articles 6.9 and 6.2
(a) Arguments of the parties
(i) Norway
7.778 Norway claims that the EC failed to disclose th e essential facts that formed the basis for the
EC's decision to impose duties, as required by Artic le 6.9, and thereby deprived Norway of a full
opportunity to defend its interests, as required by Article 6.2. Norway asserts that the disclosure by
the EC consisted of a draft of the Definitive Regula tion that largely fails to refer to any facts forming

893 We note that Dr. Jaffa similarly made unsolicited representations to the Panel in this proceeding,
two of which we made available to parties and third parties for comment. As discussed elsewhere in our
decision, we did not rely on the information in Dr. Jaffa's submissions in our findings. See above paras. 1.12 -
1.13.
894 EC, Answer to Panel Question 45, paras. 202-206.
895 EC, SWS, para. 246.

the basis for the EC's determination. Specifically , Norway argues that, in the disclosure documents
that the EC provided to the investigated Norweg ian producers, as well as to the other interested
parties, it failed to disclose the essential facts related to key elements of the EC's decision, such as:
definition of the product concerned; definition of the domestic industry; dumping; injury; causation
and non-attribution; and the remedy.
7.779 Norway maintains that the aim of disclosure is to "actually disclose to the interested parties
the essential facts which, being under consideration, are anticipated by the authorities as being those
which will form the basis for the decisi on whether to apply definitive measures." 896 Moreover,
Norway maintains that the investigating authority must actively identify the facts on which it will rely
in making its determination. In this case, th e EC made two disclosures by sending disclosure
documents to interested parties. Norwegian pro ducers received disclosure documents with annexes,
some of which were identical for all investigated producers, while other annexes were specific to each
producer. The "general" disclosure document consisted of a draft of the Provisional or Definitive EC
Regulation, while additional specific annexes addressed the calculation of dumping for each producer,
and the injury margin analysis. Subsequent to th e Definitive Disclosure in October 2005, the EC sent
additional documents to the investigated parties, including an information note on "developments"
following the Definitive Disclosure, which addressed "concerns" regarding the minimum import price
(MIP) for fillets, and finally a subsequent information note regarding the definitive MIPs for fillets.
7.780 Norway sets out a series of specific examples of how the EC failed to make adequate
disclosure with respect to (i) the dumping determin ation; (ii) injury – definition of the domestic
industry; (iii) causation and non-attribution; and, (iv) the determination of minimum import prices
(MIPs).
7.781 With respect to the dumping determination for some producers, Norway complains that, after
the definitive disclosure, the EC re-assessed the facts and made changes to the determination set out in
draft in the disclosure, but did not undertake any further disclosure (dumping margin for producers
PFN, Hydroteck and Sinkaberg-Hansen, which cha nged between the Definitive Disclosure and the
Definitive Regulation). Norway also argues that the EC failed to disclose that, at both the provisional
and definitive stages, it rejected the company- specific information submitted by Hydroteck and
recalculated the company's SG&A costs.
7.782 Norway claims that the EC failed to disclose to the interested parties the essential facts under
consideration concerning its determination of the scope of the domestic industry for purposes of its
injury determination. Norway asserts that the definitive disclosure documen ts do not refer to any
documents or facts that substantiate the EC's determination – rather, Norway maintains that instead of
disclosing the essential facts underlying its determ inations, the EC has simply disclosed its
determinations.
7.783 Similarly, Norway asserts that the EC failed to disclose the essential facts underpinning its
determination with respect to the evaluation of im ports from Canada and the US as an "other factor"
causing injury. Specifically, Norway argues that the EC failed to disclose any facts or references to
facts concerning import figures for wild salmon from Canada and the US, the circumstances of
competition between wild and farmed salmon, prices of wild salmon, etc.
7.784 Finally, Norway argues that the EC failed to disclose essential facts in connection with the
minimum import prices (MIPs). In this regard, Norw ay notes that the EC recalculated the MIPs for
fillets after the definitive disclosure, and sent th e interested parties an information note, which
Norway asserts failed to specify which particular documents and which facts in the record are relevant
for the EC's revised determination.

896 Panel Report, Argentina – Ceramic Tiles, para. 6.125.

7.785 Norway takes the view that, when an investig ating authority violates Article 6.9, it also
violates Article 6.2 of the AD Agreement. Norway recalls that Article 6.9 refers to the ability of
interested parties to "defend their interests", while Article 6.2 requires that interested parties be given
full opportunity for the defence of their interests throughout the anti-dumping investigation . As a
result, any violation of the disclosure obligation in Article 6.9 entails a violation of Article 6.2.
(ii) European Communities
7.786 With respect to Norway's claim under Article 6.9, the EC observes that that provision requires
the investigating authority to "inform all interested parties of the essential facts under consideration
which form the basis for the decision" (emphasis added), while Norway's arguments are based on an
alleged duty to disclose evidence. The EC considers that it is not required that the investigating
authority support every factual finding with a re ference to the supporting evidence, for example by
citing the relevant statistics, form or other document which is material for the fact. There is no duty to
specifically identify in the disclosure document the source on which the assembled facts are based.
Rather, the EC maintains that the obligation to disclose essential facts is satisfied by a simple
reference to them.
7.787 The EC goes on to address, in detail, the essential facts it disclosed to the parties prior to the
final determination. The EC refers to the standa rd of review, noting that Norway's arguments enter
into the area of factual assessments, which are for the investigating authorities to make in the first
instance, and that the Panel should be cautious in assessing whether a fact was essential and therefore
to be disclosed before imposition of the measure. The EC notes that it disclosed to all interested
parties, including the Government of Norway, a draft of the Definitive Regulation on
28 October 2005, which explained all the releva nt factors of the investigation, sometimes
incorporating by reference more detailed findings from the provisional stage. The EC considers it
plain that the essential facts regarding the dumping de termination, injury to the domestic industry,
causation and non-attribution and remedy determination are all set out therein. The EC provided at the
same time replies to individual exporters and shar ed the individual calculations relevant to their
situation with them.
7.788 With respect to Norway's claims concerning th e alleged failure to disclose the re-assessment
of dumping margins that changed between the defini tive disclosure and Definitive Regulation, the EC
asserts that nothing in Article 6.9 requires that there be additional disclosure relating to any re-
assessment in view of the comments received in response to a disclosure, or an individual explanation
of the re-assessment to an interested party after th e adoption of the definitive measure. The EC refers
in this regard to the text of the first sentence of Article 6.9, which provides that disclosure shall take
place "before a final determination is made". Thus, the EC acknowledges that it corrected its
definitive dumping margin found for PFN, Hydroteck and Sinkaberg-Hansen but considers that no
further disclosure under Article 6.9 was required. Nonetheless, the EC notes that telephone exchanges
and/or hearings held between definitive disclosur e and publication made clear the reasons for the
adjustments with respect to these three companies.
7.789 With respect to the disclosure regarding th e domestic industry, the EC maintains that
Norway's dissatisfaction with the failure to disclos e "documents that support or substantiate the EC's
assertions" is without legal basis, as there is no requirement in Article 6.9 of the AD Agreement to
disclose to Norway the evidentiary support of the EC's factual findings.
7.790 Similarly, with respect to the consideration of imports from Canada and the United States, the
EC again argues that Norway's complaint that ther e was "no reference to any documents and facts in
the record" substantiating the EC's statements is without legal basis. In addition the EC notes that
several interested parties had questioned the EC's interpretation of the information on these imports
after disclosure, and the EC explained its decision in the Definitive Regulation, a draft of which was

provided in the general disclosure. Thus, the EC considers it "devoid of any purpose" to claim non-
disclosure of essential facts under Article 6.9 of the AD Agreement.
7.791 With respect to the MIPs, the EC reiterates that there was no obligation to provide any further
disclosure after the disclosure of 28 October 2005, and therefore Norway's claim in this regard must
be rejected. Moreover, the EC notes that, on a purely voluntary basis, the EC sent out an information
note concerning the changes in the definitive MIP on 13 December 2005, which additional MIP
disclosure informed the parties that their latest in formation in reply to the definitive disclosure had
been assessed before taking a final decision.
7.792 Finally, the EC argues that there is no reason for the Panel to conclude that a violation of
Article 6.9 of the AD Agreement automatically trigge rs a breach of Article 6.2, as the first violation
would already require action to bring the measure into conformity with the AD Agreement.
(b) Evaluation by the Panel
7.793 There is no dispute about the facts surrounding the EC's disclosure of essential facts. An
initial disclosure was made prior to the impos ition of provisional measures, on 22 April 2005. 897 On
28 October 2005, approximately three months befo re the Definitive Regulation was adopted, the EC
sent definitive disclosure documents to interested pa rties. These consisted of a letter and annexes,
some of which were identical for all interested pa rties receiving the disclosure, others of which were
specific to the individual interested parties receiving them. All interested parties received a draft of
the Definitive Regulation, while individual interested parties also received, inter alia , specific
disclosure documents regarding calculation of dumpi ng margins and injury factors. All interested
parties were given an opportunity to make represen tations to the investigating authority following the
disclosure. Subsequent to the October 2005 discl osure, the EC sent interested parties further
communications, including an information note on ce rtain developments subsequent to the disclosure
regarding the minimum import prices for fillets, and a subsequent communication regarding the
definitive minimum import prices for fillets. Th e Definitive Regulation, which was issued on
17 January 2006, states that "oral and written comme nts submitted by the in terested parties were
considered and, where appropriate, taken into account for the definitive findings."898
7.794 In evaluating Norway's claims, we must consider first the text of Article 6.9 of the
AD Agreement, which provides:
"The authorities shall, before a final dete rmination is made, inform all interested
parties of the essential facts under consideration which form the basis for the decision
whether to apply definitive measures. Such disclosure should take place in sufficient
time for the parties to defend their interests."
The obligations of this provision are quite straight forward – the investigating authority shall inform
interested parties of "essential f acts under consideration" prior to ma king a final determination, but in
sufficient time for the interested parties to defend their interests.

7.795 Norway asserts that the EC failed to disclose es sential facts in numerous instances, but limits
its claim to four examples: essential facts concer ning (1) dumping; (2) definition of the domestic
industry; (3) causation and non-attribution of injury to other factors; and (4) the remedy, that is,
minimum import prices. With respect to the first and last of these, dumping and the remedy,
Norway's arguments regarding alleged failure to di sclose essential facts are based on the fact that the
Definitive Regulation is different from the draft of that regulation disclosed in October 2005.

897 We do not understand Norway to have made any claims regarding this disclosure.
898 Definitive Regulation, para. 6.

7.796 Norway suggests that the facts that are essentia l to a particular determination depend on the
substance of that determination, and that, for instan ce, the facts essential to a determination of injury
are different from the facts essential to a determination of no injury. Therefore, Norway argues, "if an
authority changes its mind about the substantive character of a determination it proposes to make, this
will likely entail a "change" in the essentia l facts supporting the new determination."
899 We do not
agree. We consider that "essential facts under cons ideration which form the basis of the decision
whether to apply definitive measures" are not only those facts that support a determination, but rather
are the body of facts essential to any determination that are being considered in the process of analysis
and decision-making by the investig ating authority. Thus, in our view, the essential facts to be
disclosed under Article 6.9 are not affected by the substance of the determination an investigating
authority may ultimately make. Indeed, they cannot be, as the essential facts to be disclosed are those
"under consideration which form the basis of the de cision" – that is, the disclosure of essential facts
precedes the decision. Thus, at the time of the Article 6.9 disclosure, no decision has yet been taken,
and, it seems to us, the disclosure of essential fact s may not enable an interested party to foresee the
ultimate decision.
7.797 We consider that Norway errs in arguing that Ar ticle 6.9 requires an investigating authority to
provide an additional disclosure, as in our view, the essential facts do not change simply because the
ultimate determination of the investigating authority is not that which was intimated in the disclosure.
Merely that the EC chose to provide information to interested parties subsequent to the definitive
disclosure
900 does not establish that there was an obliga tion to do so – the AD Agreement establishes
the minimum rights that must be afforded interested parties in an anti-dumping investigation, but does
not preclude a Member from affording additional ri ghts, so long as in doing so it does not violate
some provision of the AD Agreement.
7.798 The Panel's decision in Guatemala – Cement II does not suggest otherwise. In that case, the
investigating authority disclosed essential f acts prior to a provisional determination of, inter alia ,
threat of material injury. The investigation continued, with additional facts gathered, and ultimately a
final determination of material injury was made. The Panel found that disclosure of the essential facts
prior to the preliminary determination was "c learly inadequate" to satisfy Article 6.9. 901 Given that
different and additional facts, relating to differe nt and additional factors under the AD Agreement
must be considered by an investigating authorit y in finding threat of material injury, and present
material injury, it seems clear to us that the essential facts under consideration prior to the provisional
determination were different from those under consideration at the time of the definitive
determination. Here, however, the investigating au thority did not make a different determination
regarding dumping, but rather rea ssessed the facts before it, and revised its calculations resulting in a
different dumping margin than that foreshadowed in the disclosure.
7.799 How an investigating authority undertakes to disclose the essential facts does not change the
nature of the obligations under Article 6.9. Th e second sentence of Article 6.9 makes clear that the
disclosure of essential facts must be in sufficient time to allow parties to defend their interests. In our
view, this must entail the possib ility that, whatever decision may have possibly been foreseen or
foreseeable at the time of disclosure, the ultimat e decision may be a different one, based on the
defence of parties' interests following that disclosur e. Clearly, the investigating authority must, in
making its decision whether to apply definitive meas ures, take into account whatever information or
argument parties submit subsequent to disclosure to defend their interests. The alternative would
render meaningless the right of parties to receive disclosure of essential facts in sufficient time to

899 Norway, Answer to Panel Question 71, para. 239.
900 EC, FWS, para. 555.
901 Panel Report, Guatemala – Definitive Anti-Dumping Measur es on Grey Portland Cement from
Mexico ("Guatemala – Cement II") , WT/DS156/R, adopted 17 November 2000, DSR 2000:XI, 5295,
para. 8.228.

defend their interests. However, we do not consider that this possible change of outcome triggers a
requirement for additional disclosure under Article 6. 9. Thus, the fact that the EC undertakes
disclosure by providing a draft definitive regula tion does not mean that, should the investigating
authority ultimately issue a determination that diffe rs in some respect from the draft, an additional
disclosure is required. Such a change in the ultim ate determination is presumably what is envisioned
by the right given to parties to defend their interest s after the disclosure. The manner in which the EC
chooses to provide disclosure does not limit the inv estigating authority's obligation to take into
account comments and information submitted by inte rested parties after disclosure, and the
concomitant possibility that the investigating author ity may issue a definitive regulation that differs,
even in material respects, from that provided in draft form as part of the Article 6.9 disclosure.
7.800 With respect to dumping, Norway asserts that the margin of dumping determined for three
Norwegian producers, PFN, Hydroteck, and Sinkaberg -Hansen, changed in the interval between the
disclosure and the Definitive Regulation, without th ere having been "any additional disclosure of the
essential facts supporting [the] modified dumping determination." 902 Thus, Norway appears to treat
the disclosure of the draft definitive regulation al most as if it were a determination of dumping,
modified subsequently as revealed in the Definitiv e Regulation. In Norway's view, this situation
demands, under Article 6.9, a further disclosure of essential facts because, in its view, the essential
facts leading to the imposition of measures on these companies changed. 903 In our view, as discussed
above, Article 6.9 does not require more than on e disclosure prior to the imposition of definitive
measures.904
7.801 These same considerations apply with respect to Norway's arguments in connection with the
disclosure of essential facts relating to the minimu m import prices. In this case, following the
October 2005 disclosure, the EC recalculated th e minimum import price for fillets, and informed
interested parties of the newly calculated mini mum import prices on 13 December 2005. In that
communication, the investigating authority indicat ed that in light of comments received, it had
verified and cross-checked the information availa ble, including information provided by parties in
response to the definitive disclosure, and on that basis, recalculated the minimum import prices, and
provided a table setting forth those prices.905
7.802 In our view, this sequence of events demons trates precisely the purpose of Article 6.9.
Following the definitive disclosure, the investiga ting authority received further information which
prompted it to a re-consideration and adjustment of its views, resulting in a different determination
that than indicated in the draft definitive regulation at the time of the Article 6.9 disclosure. Norway's
argument would presumably require the investigating authority to disclose whatever new information
was provided, on the premise that the different result demonstrates that the new information
constituted "essential facts" within the meaning of Article 6.9. Article 6.9 would then mandate a
further opportunity for interested parties to defend th eir interests, and an endless stream of disclosures
and comments could ensue. Norway's position would result in an impossible situation for
investigating authorities, which must complete the investigation within the time limits set out in
Article 5.10 of the AD Agreement. Norway sugg ests that this could only happen because the
investigating authority decided that different fact s were essential to its determination, and that

902 Norway, FWS, para. 725.
903 Norway, FWS, para. 727.
904 This is not to be understood to mean that any disclosure, at any time prior to the imposition of
definitive measures, will satisfy the requirements of Artic le 6.9. There may well be circumstances, such as
those addressed by the Panel in Guatemala – Cement (II) , in which a disclosure is found not to satisfy those
requirements. However, in our view, merely because a definitive measure is different from that foreshadowed
in or anticipated on the basis of the disclosure does not necessarily mean additional disclosure should have been
made before that different determination is issued.
905 Exhibit NOR-19.

disclosure of these previously undisclosed essential facts is required. As discussed above, Norway's
view confuses the essential facts with the facts supporting the decision.
906
7.803 Based on the foregoing, we conclude that the EC's disclosure of essential facts regarding
dumping by PFN, Hydroteck, and Sinkaberg-Hansen, and regarding the minimum import prices, was
not inconsistent with Article 6.9 of the AD Agreement. As Norway's claim of violation of Article 6.2
is dependent on its claim of viola tion of Article 6.9, which we have rejected, we find no violation of
Article 6.2.
7.804 Norway's arguments concerning alleged failure to disclose essential facts concerning the
definition of domestic industry and causation and non-attribution raise a different question. In these
examples, Norway asserts that the EC failed to refer, in the disclosure, to "any document or fact that
supports or substantiates any of the EC's assertions " regarding the scope of the domestic industry, and
failed to disclose "any documents and facts on th e record substantiating the EC's statements"
regarding wild salmon imports from the United Stat es and Canada and lack of competition between
wild and farmed salmon.907
7.805 The word "fact" is defined variously as "Truth ; reality" and "A thing known for certain to
have occurred or to be true; a datum of experien ce" and "A thing assumed or alleged as a basis for
inference" and "Events or circumstances as distinct from their legal interpretation." 908 In our view,
essential facts to be disclosed under Article 6.9 may qualify under any of these meanings of the word
fact. We consider that the purpose of disclosure unde r Article 6.9 is to provide the interested parties
with the necessary information to enable them to comment on the completeness and correctness of the
facts being considered by the investigating auth ority, provide additional information or correct
perceived errors, and comment on or make arguments as to the proper interpretation of those facts.909
7.806 Norway appears to be of the view that the investigating authority must disclose the underlying
evidence on which it has relied, or will rely, in reachi ng factual conclusions. We do not agree. It is
clear that Article 6.9 requires disclosure of "essential facts" that are "under consideration" and "which
form the basis for the decision whether to apply definitive measures." This requirement is not
necessarily satisfied by the disclosure of the inves tigating authorities' conclusions on issues of fact
that must be resolved before a decision to apply definitive measures is taken. Neither, however, does
Article 6.9 require disclosure of all the evidence and information that is before the investigating
authority.
910 Indeed, one Panel has specifically held that access to the files of the investigating
authority does not satisfy the requirements of Article 6.9, as parties given such access would not know
which facts were essential and under consideration.911
7.807 As already indicated above, we consider that "essential facts under consideration which form
the basis of the decision whether to apply definitiv e measures" are the body of facts essential to the
determinations that must be made by the investiga ting authority before it can decide whether to apply

906 We note that in our view, the ability of interested parties to defend their interests in subsequent
review before domestic tribunals, as provided for in Article 13 of the AD Agreement, is irrelevant to the issue
here. The Article 6.9 disclosure is a procedural right accorded interested parties in furtherance of the general
right to defend their interests during the anti-dumping proceeding.
907 Norway, FWS, para. 736.
908 New Shorter Oxford English Dictionary, Clarendon Press, 1993.
909 This follows from the second sentence of Article 6.9, which establishes the timing of the disclosure,
as "in sufficient time for the parties to defend their interests."
910 We note that Article 6.4 establishes the right of interested parties to see all relevant, non-
confidential information used by the investigating authorities. Thus, to interpret Article 6.9 to require disclosure
of evidence would to some extent establish a redundancy.
911 Panel Report, Argentina – Ceramic Tiles, para. 6.129.

definitive measures. That is, th ey are the facts necessary to the process of analysis and decision-
making by the investigating authority, not only those that support the decision ultimately reached.
7.808 We do not consider that every element of factual evidence considered by the investigating
authority must be disclosed, or that every fact di sclosed must be footnoted to the specific source
information before the investigating authority. We can see nothing in Article 6.9 which would require
any particular form of disclosure, or any particular degree of precision in tying facts to the
information before the investigating authority. While it would certainly be useful for the investigating
authority to indicate to interested parties the inform ation before the investigating authority on which a
disclosed essential fact is based, we cannot conclude that this is required.
7.809 Turning to the specific examples of alleged failu re to disclose essential facts, Norway argues
that the EC failed to disclose the identities of th e 15 EC producers constituting the domestic industry,
the identities of the excluded related producers, wh at the volume of production of related producers
(individual or collective) was, facts or documents providing the basis for the volume of production of
the domestic industry, the identities of the "silent " producers, whether their production volume was
included in domestic production, and which compan ies were excluded from the definition of the
domestic industry and their production volume, individual and collective.
912 It is undisputed that the
Definitive Regulation with regard to the definitio n of the domestic industry is identical to the
disclosure provided in October 2005. Norway's argument is that this disclosure was of the
determination, and not the facts underlying the determ ination. It seems clear to us that the essential
facts forming the basis for the EC's definition of the domestic industry 913 are set out in the Definitive
Regulation, which describes the factual basis on which the EC defined the domestic industry. Merely
that the evidence or information from which the inv estigating authority derived that factual basis is
not set out does not establish a violation of Article 6. 9. Thus, we find no violation of Article 6.9 in
this regard. As Norway's claim of violation of Ar ticle 6.2 is dependent on its claim of violation of
Article 6.9, which we have rejected, we find no violation of Article 6.2.
7.810 With respect to the essential facts relating to causation and non-attribution, Norway asserts
that the disclosure did not contain any facts or refe rence to facts concerning import statistics for wild
salmon from Canada and the United States, competition between wild and farmed salmon,
predominance of sales of wild salmon in tins or cans, lower prices for wild salmon, and taste
differences between wild and farmed salmon. As with the definition of domestic industry, there is no
dispute that the Definitive Regulation is identical to the disclosure on this issue. Again, it seems clear
to us that the essential facts form ing the basis for the EC's conclusion that imports from Canada and
the United States were not a cause of injury to the domestic industry are set out. We have, elsewhere
in this decision, found that the EC's conclusion in th is regard is not consiste nt with the requirements
of the AD Agreement. However, that finding do es not necessarily mean that the essential facts were
not disclosed – it simply means that the conclusion was not one that could be reached by an objective
and unbiased investigating authority on the basis of those facts. Thus, we find no violation of
Article 6.9 in this regard. As Norway's claim of vi olation of Article 6.2 is dependent on its claim of
violation of Article 6.9, which we have rejected, we find no violation of Article 6.2.

912 Norway, FWS, para. 735.
913 We note our conclusion elsewhere in this report that the EC's approach to defining the domestic
industry in this case resulted in an investigation concer ning a domestic industry that did not comport with the
definition set forth in Article 4.1 of the AD Agreement.

3. Alleged Inconsistency with Articles 12.2 and 12.2.2
(a) Arguments of the parties
(i) Norway
7.811 Norway's third claim is that the EC violat ed Article 12.2 and 12.2.2 because it failed to
provide a reasoned and adequate explanation for a number of its findings and conclusions. Norway
considers that the EC's publishe d determination – the Definitive Regulation – is characterized by a
general failure to explain how the facts in the r ecord support the factual an d legal determinations.
Norway first sets out its view of the obligation to provide a reasoned a nd adequate explanation
imposed by Article 12.
7.812 Norway asserts that these provisions require the investigating authority to provide a reasoned
and adequate explanation , among others, of how the evidence in the record supports the authority's
determination, citing US – Softwood Lumber VI (Article 21.5 – Canada) ,
914 and that the explanation
must demonstrate in a "clear and unambiguous" ma nner that the substantive conditions for imposition
of trade remedy measures have been satisfied, citing US – Line Pipe.915
7.813 Norway sets out examples of how, in its view, th e EC failed to comply with those obligations
in its determinations of: (1) th e product under consideration and the domestic industry; (2) the margin
of dumping for companies for whom the definitive ma rgin differed from the disclosed margin; (3) the
causal link; and (4) the level of the MIPs.
7.814 Norway recalls its claim that the EC failed to make a proper determination of the product
under consideration, and argues th at its substantive arguments al so demonstrate that the EC's
statement of reasons for the determination of the "product under consideration" fails to provide any
explanation of the "evidentiary path" that led the EC to its conclusion with regard to the four criteria it
used to assess likeness, namely, phy sical characteristics, production process, substitutability, and end
uses. In particular, Norway contends that the EC has not explained how the facts in the record
support its conclusions.
7.815 Second, Norway recalls its claim that the EC improperly defined the domestic industry under
Article 4.1, and asserts that the EC's determination on that issue failed to set forth a reasoned and
adequate explanation for many of the elements that make up this determination.
7.816 With respect to the dumping determination, Norw ay considers that there are many examples
of the EC's failure to explain its dumping determ inations for the ten sampled companies. For
instance, Norway recalls that the definitive disclos ure for PFN revealed a dumping margin of 24.5 per
cent, but in the Definitive Regulation, the EC re vised its determination to 17.7 per cent. Norway
asserts that the EC must have accepted some of PFN 's arguments, but that the Definitive Regulation
sets out no reasons for the change. Norway notes th at the EC also failed to provide any reasons for
changes to the dumping margins for Hydroteck a nd Sinkaberg-Hansen that occurred between the
Definitive Disclosure and the Definitive Regulation.
7.817 With respect to the causation determination, Norway recalls its claims of violation of
Articles 3.1 and 3.5 of the AD Agreement, and offers examples of the EC's alleged failure to provide
a reasoned and adequate explanation for its price undercutting and "non-attrib ution" analysis. These
relate to the failure to address the price premium, referred to in the general disclosure, in the
Definitive Regulation, the dismissal of the argument that any injury sustained by the EC industry was

914 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), para. 98.
915 Appellate Body Report, US –Line Pipe, para. 217

caused by an increase in the industry's costs of production without adequate explanation, and the
failure to provide a proper explanation of why im ports from Canada and the United States were not
another factor causing material injury to the domestic industry.
7.818 With respect to the MIPs, Norway recalls its arguments that the EC's determination of the
level of the MIPs violated Article VI:2 of the GATT 1994 and Article 9 of the AD Agreement, and
asserts that those arguments reflected that the EC 's determination did not provide a reasoned and
adequate explanation of how the EC arrived at th e values for the various MIPs. Specifically, Norway
maintains that the EC does not disclose any explan ation of how it calculated the "non-dumped" MIPs
or the "non-injurious" price of the Community industry of the like product.
(ii) European Communities
7.819 Regarding Norway's claims under Article 12, the EC maintains that the Definitive Regulation
complies with the requirements of that Article, and that Norway is attempting to impose an
exaggerated legal standard in th is context. The EC notes that Article 12.2 of the AD Agreement
requires an investigating authority to provide "in sufficient detail the findings and conclusions reached
on all issues of fact and law", and that Article 12.2.2 of the AD Agreement spells out what is meant
by sufficient detail for final determinations. The EC argues that Norway contorts the language of this
provision to give the impression that the " sufficient detail" as mentioned in Article 12.2. is left
undefined, and then advances a standard of "su fficiency" which goes well beyond the three criteria
mentioned in Article 12.2.2.
7.820 In the EC's view, Article 12.2 of the AD Agr eement is satisfied when an investigating
authority provides the information that it considers rele vant, and the reasons that it held to be decisive
for its findings. The EC recognizes that an investiga ting authority may err on some matters of fact or
law, but suggests that such errors could be attacked under the substantive provisions of the
AD Agreement, while the procedural provision, Article 12.2, is only at issue when an investigating
authority fails to provide relevant information on matte rs of fact or law, when it does not put forward
any reasoning in support of them, or simply ignor es the arguments presented by interested parties.
The EC also notes that Norway fails to take in to account the obligation to protect confidential
information, which is set out in Article 12.2.2 itself.
7.821 With respect to the determination regarding sel ection of the product under consideration, the
EC recalls its view that Article 2.6 is irrelevant to this issue, and asserts that it was therefore under no
obligation to undertake the detailed explanation No rway considers to have been necessary. The EC
maintains that it was simply required to describe its selection of the subject product as farmed salmon,
however presented, which it did adequately in the Provisional Regulation.
7.822 The EC considers that, while Norway may disagr ee with the EC's conclusion, it is sufficient,
as it identifies the four criteria that are found to cons titute the common strain of farmed salmon – i.e.,
the relevant issues of law and fact, it draws a conclusion from the facts, and explains that no
comments were made concerning that conclusion, obviating the need for further discussion in the
Definitive Regulation.
7.823 With respect to the domestic industry determina tion, the EC considers that the information
concerning production by the domestic industry, and th e producers it considered to be part of that
industry, is clearly set out in the Provisional and Definitive Regulations, and that Norway's emphasis
on the question of filleting-only ope rations is the basis for its dissatisfaction with the EC's
explanation. The EC maintains that the exclusion of certain producers is set out in paragraph 39 of
the Definitive Regulation, and that this is adequate reasoning to explain why the EC considered that
the 15 complaining producers constituted the domes tic industry on the basis that their production

accounted for a major proportion of total domestic pr oduction. While Norway may disagree with the
EC's conclusions, the EC considers it undeniable that it has provided reasons for its decisions.
7.824 The EC recognizes that the Definitive Regulation does not address the reasons for the
modification of the dumping margins with regard to three Norwegian exporters (PFN, Hydroteck and
Sinkaberg-Hansen), but maintains that to do so would have disclosed confidential industrial data,
which is prohibited. Consequently, the EC wa s not only justified but also required under the
AD Agreement not to provide specific informa tion on the reasons why and how exactly it had
modified the dumping margin of several Norwegian exporters after definitive disclosure. The EC
notes, however, that it did explain its determinatio n to the three exporters individually - verbal
notifications to PanFish and Hydroteck were followe d by short e-mails after the publication, while a
lengthy telephone-conference was held with Sinkaberg-Hansen prior to the publication.
7.825 Turning to the causation determination, the EC points out that the price premium issue relates
to injury, and not causation, and th at the EC addressed this question in the general disclosure, but did
not do so in the Definitive Regulation. The EC reiterates its view that the price premium for
Community industry is not relevant for the calculati on of price undercutting, and that therefore, the
Definitive Regulation did not have to refer to this element.
7.826 With respect to the alleged "dismissal" of the arguments related to the EC industry's costs of
production, the EC notes that the alleged lack of explanation is in the Provisional Regulation, which is
governed by Article 12.2.1, which is not the subject of any claim in this dispute, and is therefore not
properly before the Panel.
7.827 With respect to the alleged lack of evidence to support the determination that imports from
Canada and the US were not an "other factor" causing material injury, the EC asserts that, as
explained in recitals 85 and 86 of the Definitive Regulation, imports from the US and Canada
consisted mostly of wild salmon, which was not the product concerned and therefore immaterial for
the causation analysis. The EC main tains that such straightforward reasoning is adequate. With
respect to the MIPs, the EC maintains that it explai ned its choice for the MIPs in recitals 127 to133 of
the Definitive Regulation. The method of calculation wa s particularly set out in recitals 130 to 133.
The EC considers that the explanation is sufficien tly detailed to reveal how the EC calculated the
relevant data.
(b) Evaluation by the Panel
7.828 Article 12.2 of the AD Agreement provides:
"Public notice shall be given of any prelimin ary or final determination. … Each such
notice shall set forth, or otherwise ma ke available through a separate report, in
sufficient detail the findings and conclusions reached on all issues of fact and law
considered material by the investigating authorities. All such notices and reports
shall be forwarded to the Member or Memb ers the products of which are subject to
such determination or undertaking and to other interested parties known to have an
interest therein." (Emphasis added)
Article 12.2.2 of the AD Agreement provides:
"A public notice of conclusion … of an inv estigation in the case of an affirmative
determination providing for the imposition of a definitive duty … shall contain, or
otherwise make available through a separat e report, all relevant information on the
matters of fact and law and reasons wh ich have led to the imposition of final
measures or the acceptance of a price unde rtaking, due regard being paid to the

requirement for the protection of confidential information. In particular, the notice
or report shall contain the information descr ibed in subparagraph 2.1, as well as the
reasons for the acceptance or rejection of re levant arguments or claims made by the
exporters and importers, and the basis for any decision made under subparagraph 10.2
of Article 6".
7.829 Norway alleges that the EC violated these pr ovisions by failing to provide a reasoned and
adequate explanation for many of its findings. Norway considers that the Definitive Regulation
generally fails to explain how the facts in the reco rd support the factual and legal determination.
Specifically, Norway asserts that the EC's determin ation fails to provide a reasoned and adequate
explanation of the determinations of (1) produc t under consideration; (2) domestic industry; (3)
dumping; (4) causation; and (5) the level of minimum import prices.
7.830 With respect to Norway's claim concerning th e alleged failure to provide a reasoned and
adequate explanation for the dete rmination of the product under cons ideration, we have concluded
elsewhere in our decision that the EC did not act inconsistently with the AD Agreement in not
limiting the scope of the product under consideration to "like" products . Thus, we concluded that the
EC was not required to make the determination pr oposed by Norway on the basis of the analysis
argued by Norway. In our view, it follows from our finding that there is no violation of Article 12 in
the fact that the EC did not provide an explanation of an analysis and determination it was not
required to make. The Definitive Regulation sets fort h the conclusions of the investigating authority
as to the product under consideration. To the extent that Articles 12.2 and 12.2.2 require an
explanation of aspects of the determination not re quired by the AD Agreement, we consider that the
Definitive Regulation contains an adequate explanation of this aspect of the EC's determination.
7.831 With respect to Norway's claim regarding the definition of the domestic industry, we have
found elsewhere in our decision that the EC's appr oach to defining the domestic industry in this case
resulted in an investigation concerning a domestic industry that did not comport with the definition set
forth in Article 4.1 of the AD Agreement. We note that our finding in this regard was based
principally on the definition of the domestic i ndustry as set out in the Provisional and Definitive
Regulations. Having found error in this regard, the question of whether the notice of the definition of
the domestic industry is "sufficient" under Article 12. 2 is immaterial. We co nsider that, where there
is a substantive inconsistency with the provisions of the AD Agreement, it is neither necessary nor
appropriate to consider whether there is a violation of Article 12, as the question of whether the notice
is "sufficient" under Articles 12.2 and 12.2.2 is immaterial.
916
7.832 With respect to Norway's claim regarding dumping, Norway asserts that there are "many
examples of the EC's failure to explain its dumpi ng determinations for the ten sampled companies", 917
and refers, as the single example in support of its claim, to the change in the dumping margins for
three companies as set out in the Definitive Re gulation from those set out in the disclosure under
Article 6.9. Norway alleges that the Definitive Regulation does not explain the reasons for the change
in the dumping margins calculated for PFN, Hydrot eck, and Sinkaberg-Hansen, that PFN argued that
the calculation in the definitive disclosure was flawed , and that the Definitive Regulation fails to state

916 We find support for our position in the views of the Panel in EC-Bed Linen,
"A notice may adequately explain the determination that was made, but if the determination
was substantively inconsistent with the relevant legal obligations, the adequacy of the notice is
meaningless. Further, in our view, it is m eaningless to consider whether the notice of a
decision that is substantively inconsistent with the requirements of the AD Agreement is, as a
separate matter, insufficient under Article 12.2. A finding that the notice of an inconsistent
action is inadequate does not add anything to the finding of violation, the resolution of the
dispute before us, or to the understanding of the obligations imposed by the AD Agreement."
Panel Report, EC-Bed Linen, para. 6.259.
917 Norway, FWS, para. 769.

the reasons for the acceptance or rejection of arguments made by PFN, Hydroteck, and Sinkaberg-
Hansen. We have found elsewhere in our decision that the EC's determination of dumping for these
companies was inconsistent with Articles 2.2, 2.2.1. 1, 2.2.2 and 2.2.2(iii). Having found error in this
regard, the question of whether the notice of those de terminations is "sufficient" under Article 12.2 is
immaterial. We consider that, where there is a s ubstantive inconsistency with the provisions of the
AD Agreement, it is neither necessary nor appropriate to consider whether there is a violation of
Article 12, as the question of whether the notice is "sufficient" under Articles 12.2 and 12.2.2 is
immaterial.
918
7.833 With respect to Norway's claim regarding cau sation, Norway offers three examples of the
EC's alleged failure to provide a reasoned and ad equate explanation for its price undercutting and
"non-attribution" determinations.919 Norway alleges that the Definitive Regulation does not address
the question of a price premium, 920 does not address the argument that increased costs of production
were a cause of injury to the domestic industry, and does not provide a proper explanation for the
conclusion that imports from Canada and the Unite d States were not a cause of injury. We have
found elsewhere in our decision that these elements of the EC's determinations of injury and causation
were inconsistent with Articles 3.1, 3.2 and 3.5 of the AD Agreement. Having found error in this
regard, the question of whether the notice of either the preliminary or affirmative determination of
injury is "sufficient" under Article 12.2 is immaterial . We consider that, where there is a substantive
inconsistency with the pr ovisions of the AD Agreement, it is neither necessary nor appropriate to
consider whether there is a violation of Article 12, as the question of whether the notice of either a
preliminary or final determination is "sufficient" under Articles 12.2 and 12.2.2 is immaterial.921
7.834 Finally, with respect to Norway's claim re garding the level of minimum import prices,
Norway asserts that the determination did not provide a reasoned and adequate explanation of how the
EC arrived at the values for the various minimum import prices. 922 Specifically, Norway argues that
the EC failed to disclose how it calculated the non-dumped minimum import prices and non-injurious
price of the EC industry for the like product. We have found elsewhere in our decision that the EC's
determination of the level of the minimum import prices was inconsistent with Articles 9.2 and 9.4(ii).
Having found error in this regard, the question of whether the notice of that determination is
"sufficient" under Article 12.2 is immaterial. We consider that, where there is a substantive
inconsistency with the pr ovisions of the AD Agreement, it is neither necessary nor appropriate to
consider whether there is a violation of Article 12, as the question of whether the notice is "sufficient"
under Articles 12.2 and 12.2.2 is immaterial.
923
4. Allegedly Inadmissible Exhibits Submitted to the Panel
7.835 At the first meeting of the Panel with the Parti es, Norway raised objections to seven exhibits
submitted by the EC in connection with its firs t written submission. Norway asserts that these
exhibits are inadmissible in this proceeding, because they contain "data and evidence that is not part
of the record of investigation." 924 Norway raised specific objections to Exhibits EC-2, EC-10, and
EC-12 – EC-16. 925 Norway argues that these exhibits contai n new evidence, not contained in either
the report of the investigating authority, or in the investigation record, and that the Panel may not take

918 Panel Report, EC– Bed Linen, para. 6.259.
919 Norway, FWS, para. 773.
920 We note that Norway's substantive claim of vi olation with respect to the question of a price
premium was raised under Articles 3.1, 3.2, and 3.5, and is discussed in the portion of our decision referring to
the injury determination.
921 Panel Report, EC – Bed Linen, para. 6.259.
922 Norway, FWS, para. 777.
923 Panel Report, EC– Bed Linen, para. 6.259.
925 Norway, First Oral Statement, paras. 8-12.

such new evidence into consideration in this dispute. Norway relies in this respect on Article 17.5 of
the AD Agreement, and US – Countervailing Duty Investigation on DRAMS , where the Appellate
Body stated that "[t]here is no doubt that a Member may not seek to defend its agency's decision on
the basis of evidence not contained in the record of the investigation ."926 Norway notes that panels
have held that they can " not examine any new evidence that was not part of the record of the
investigation."927
7.836 The Panel requested the EC to indicate whethe r the information in the challenged exhibits
was in the files of the anti-dumping investigation, and on what basis the EC demonstrated that this
information was before the investigating au thority at the time it made its decision. 928 In its response,
the EC asserted that all the relevant information was before the investigating au thority, and that this
was "largely apparent from the measure at issu e itself and the public nature of some of the
information", as well as "photocopies of extracts from the questionnaire responses, verification or
disclosure documents."929 The EC then gave further specific comments with respect to each of the
seven contested exhibits.
7.837 As we have previously noted, in our assessment of the matter before us, we must limit our
review to the "facts made available in conform ity with appropriate domestic procedures to the
authorities of the importing Member", in accordance with Article 17.5(ii) of the AD Agreement. This
does not mean, in our view, that we are limited to the information actually set forth or specifically
referenced in the determination at issue. We find support for this view in the Appellate Body's report
in US – Countervailing Duty Investigation on DRAMS, where it rejected the view that an investigating
authority could not defend its dete rmination on the basis of information contained in the record that
was before it at the time of the determination, but not specifically cited or discussed in that
determination.930 While the Appellate Body was considering a countervailing measure under the
Agreement on Subsidies and Countervailing Measures, which does not contain a provision similar to
Article 17.5(ii), we consider that the same conclusion applies with equal force in the context of review
of an anti-dumping measure.
7.838 We also are of the view that Article 17.5(ii) does not preclude a party from organizing
information in a different presentation or format for submission to the Panel than was before the
investigating authority, in response to the particular allegations of error and arguments at issue in the
dispute. We note in this respect the view of the Panel in EC-Bed Linen , that "the form of the
document, ( i.e., a new document) does not preclude us from considering its substance, which
comprises facts made available to the investigating authority during the investigation".931

926 Appellate Body Report, United States – Countervailing Duty Investigation on Dynamic Random
Access Memory Semiconductors (DRAMS) from Korea ("US – Countervailing Duty Investigation on DRAMS") ,
WT/DS296/AB/R, adopted 20 July 2005, para. 161. Emphasis added.
927 Panel Report, Guatemala - Cement II , para. 8.19. Emphasis added. See also Panel Report, Korea –
Definitive Safeguard Measure on Imports of Certain Dairy Products ("Korea – Dairy "), WT/DS98/R and
Corr.1, adopted 12 January 2000, as modified by Appellate Body Report, WT/DS98/AB/R, DSR 2000:I, 49,
para. 7.30; Appellate Body Report, US – Wheat Gluten , para. 161; Panel Report, United States – Anti-Dumping
Measures on Certain Hot-Rolled Steel Products from Japan ("US – Hot-Rolled Steel ") , WT/DS184/R, adopted
23 August 2001, para. 7.6, quoted also in Panel Report, United States – Investigation of the International Trade
Commission in Softwood Lumber from Canada ("US – Softwood Lumber VI ") , WT/DS277/R, adopted
26 April 2004, para. 7.37; Panel Report, EC – Bed Linen , para. 6.41 – 6.43; Panel Report, US – Hot-Rolled
Steel, para. 7.6; Panel Report, Egypt – Steel Rebar , para. 7.21; Panel Report, US – Wool Shirts and Blouses ,
para. 7.21.
928 EC, Answer to Panel Question 1.
929 EC, Answer to Panel Question 1, para. 3.
930 Appellate Body Report, US – Countervailing Duty Investigation on DRAMS, paras. 161-165.
931 Panel Report, EC – Bed Linen, para. 6.43.

7.839 Thus, in deciding whether the contested exhibits are properly before us for our consideration
in this dispute, we must determine whether the information in those exhibits was before the
investigating authority at the time it made its determin ation. If it was, then even if now presented in a
different format, our view is that we may not excl ude it from our consideration. However, if the
information, in any form, was not demonstrably befo re the investigating authority at the time it made
its determination, then we consider it appropria te to exclude it from our consideration in this
proceeding.
7.840 We turn now to the specific exhibits objected to by Norway.
- Exhibit EC-2
 consists of six articles from "Intrafish", dating from
August 2001, March 2002, April 2002, May 2002, September 2002, and
September 2004, printed from the Internet on 17 October 2006.
7.841 The EC recognizes that these articles were prin ted in 2006, but notes that the date of
publication of each was prior to the investigating authority's determination. The EC presents evidence
that it subscribes to Intrafish, 932 and asserts that the investigating authority monitored this service
throughout the investigation, and that these documen ts were in the public domain. Thus, the EC
argues, the fact that the articles were printed in 20 06 is immaterial. The EC submitted this exhibit in
support of the statement in paragraph 15 of the Pr ovisional Regulation that changes in the Norwegian
industry enabled the investigating authority to calculate dumping margins based on data from
producers. The EC argues that this assertion does not have to be justified, as it does not concern any
issue of law, but rather a question of whether a particular approach to calculating dumping margins
was possible as a practical matter. Moreover, the EC argues that this issue is not raised in Norway's
request for establishment. The EC also notes th at Norway does not contest the substance of the
articles. The EC asserts that a number of reasons explain why the articles are not referred to in the
Provisional Regulation, including the need to translat e such regulations into the 20 official languages,
and associated technical and administrative requirements, which impose pressure to produce texts that
are succinct and not over-burdened with extraneous references, which in any event the EC argues are
not required by the AD Agreement.
7.842 Norway contends that the fact that informa tion is publicly available does not make that
information part of the investigation record, and th at while the EC may have shown that it subscribed
to Intrafish, it has not shown that the entire archive of articles from Intrafish are part of the file of
every investigation into fish products conducted by the EC. Norway argues that the EC has also
failed to show that the articles in que stion were part of the record of this investigation , and were
considered by the authority as pa rt of that decision-making process.
933 Norway notes that this exhibit
relates to its claim that the EC was required by Article 6.10 of the AD Agreement to include
independent exporters in the sample.
7.843 We can find no basis to conclude that the six ar ticles in Exhibit EC-2 were actually before the
investigating authority at the time of its determinati on. We do not question that the EC subscribed to
Intrafish, nor that staff of the EC investigating authority monitored that service, and informed
themselves as to events in the seafood industry. As we have noted elsewhere in our decision, persons
working for the investigating authority in a par ticular anti-dumping dispute may have knowledge and
information gained from sources other than inform ation submitted by interested parties during an
investigation – prior knowledge of a product, i ndustry, or market, experience gained in other

932 Exhibit EC-27, consisting of an internal EC Commission note dated 27 May 2004 recording the
subscription and its relevance for the anti-dumping proceeding.
933 Norway also argues that th e articles in question were not made available for Norway's
representatives, not shown to Norway when Norway insp ected the non-confidential r ecord of the investigation
in November as required by Article 6.4, and were not disclosed as essential facts as required by Article 6.9.

investigations, or other types of investigati ons, publicly available information, and "common
knowledge" may all play a part in an investigating authority's efforts to establish the facts in a
particular investigation. However, in our view, in order for such information to be put before a Panel
to support an argument in dispute settlement, such information must be reflected in the published
determinations, or at a minimum in other documen ts in the files of the investigating authority and
brought before us in a form that demonstrates that it was available to and considered by the
investigating authority in establishing the facts. In this case, the Provisional Regulation clearly
references changes in the structur e of the Norwegian salmon industry. Presumably, the investigating
authority had some basis for this reference. Bu t we cannot simply accept that these six articles were
that basis. The presentation of articles printed from the Internet long after the investigation was
completed does not, to us, demonstrate that the information in those articles was before, and
considered by, the investigating authority in establis hing the facts. The fact that the information in
question is in the public domain does not change our view in this regard. Clearly, a great deal of
information in the public domain may be relevant in a particular anti-dumping investigation. A
reviewing panel cannot, in our view, simply accept that all such information was, in fact, before the
investigating authority and considered, without so me contemporaneous evidence of that fact. We
therefore consider it appropriate to exclude this exhibit from our consideration.
934
- Exhibit EC-10 contains data on (1) export volumes, (2) turnover, and (3)
export prices for sampled producers, non-sampled producers, and producers
that were deemed "non-cooperating".
7.844 The EC argues that this exhibit is not provided to the Panel as "evidence" but is rather "an
explanation (in tabular format) that forms an inte gral part of the text of the EC's first written
submission, placed in an Exhibit for the convenience of the Panel" 935. The EC argues that the
contents of this exhibit are "entirely based on info rmation that was before the investigating authority,
and particularly Eurostat data (whi ch is also in the public domain)." 936 The EC explains how official
Eurostat data, is "generally extracted" by the investigating authority at the beginning of an
investigation, generating an EXCEL spread sheet, which may contain thousands of lines. The EC
submits Exhibit EC-28, containing the first and last pages of the Eurostat data extracted in this case on
23 February 2005.
937 The EC asserts that in this case it was necessary to express the data in "whole
fish equivalent" (WFE), a process never contested by Norway. The EC submits Exhibit EC-29, a
worksheet that is part of the same EXCEL file, which shows some of the figures that appear in Exhibit
EC-10, and explains how the remainder of the figures were derived. The EC also used information
from questionnaire responses in preparing Exhibit EC-10. The EC relied on Exhibit EC-10 in support
of its argument that it had other sources of information for the conclusion that non-sampled
companies were also dumping.
7.845 Norway argues that the distinction drawn by th e EC between "evidence" and "explanation" is
irrelevant, the relevant question being whether part icular information was before the investigating
authority. Norway contests the admissibility of two aggregate figures shown in this exhibit. Norway
argues that the fact that the figures are taken from pub lic Eurostat data is immaterial, as not all public
information is necessarily among the information gath ered by the investigating authority. Norway
asserts that the EC has not demonstrated that these two figures were part of the record. Norway points
out that the figures on which other extrapolations were based do not appear in the EC's determination,

934 We note that this does not mean that we have found that the EC erred in stating that the Norwegian
industry was undergoing reconstruction – a question of fact on which we have found it unnecessary to rule, in
light of our decision on Norway's claim under Article 6.10.
935 EC, Answer to Panel Question 1, para. 17
936 EC, Answer to Panel Question 1, para. 18
937 The EC offered to submit the entire document, sh ould the Panel wish. We are satisfied that the
investigating authority did extract the information indicated in EC-28 during the course of the investigation.

were not disclosed under Article 6.9, and were not among the information made available pursuant to
Article 6.4. Norway argues that the allegedly public ly available data was manipulated on the basis of
a number of choices made by the EC for purposes of this proceeding. Moreover, no interested party
was ever in a position to comment on these figures. Moreover, even accepting that the aggregate
figures were before the investigating authority, Norway argues that the remainder of the data in EC-10
were not, except for turnover for sampled producers. Rather, Norway asserts, the remaining data are
based on extrapolations from other figures, based on c hoices and allocations of data that result in new
volume and turnover figures for non-sampled producer s and non-cooperating producers that were not
part of the record, and that such manipulation of the data may not be considered by the Panel.
7.846 With respect to Exhibit EC-10, we note that, as discussed above, the fact that Eurostat data
are publicly available does not, in our view, demonstrate that such information was before the
investigating authority during the investigation. However, we are satisfied that the investigating
authority did, in fact, extract relevant inform ation from the Eurostat data for purposes of this
investigation, and that this information was before the investigating authority. While it is clear that
the information in EC-10 was not before the investigating authority in the form in which it was
submitted to the Panel, we are satisfied that the information has not been impermissibly manipulated,
but rather has been compiled and presented in a more useful form to support the EC's arguments. We
therefore decline to exclude it from our consideration in this dispute. We note, however, that we did
not rely on this information in making our decisi on on the issue in connection with which it was
submitted.
7.847 We understand from the parties' arguments that the Eurostat data in question was not included
in the files made available to interested parties pu rsuant to Article 6.4. In response to questioning
from the Panel, the EC acknowledged that public info rmation used by the investigating authority is
covered by Articles 6.4 and 6.9 of the AD Agreement.
938 The EC went on to argue, however, that it
was not required to disclose publicly availabl e data, as this would not be practical, although
extractions and details could be produced in re sponse to specific requests at the time of the
investigation.939 We do not agree. In our view, if an investigating authority obtains relevant public
information during the course of its investigation, from whatever source, that information must be
among the information interested parties are given opportunities to see, pursuant to Article 6.4, and
may need to be disclosed as essential facts pursuant to Article 6.9. We do not mean to suggest that
every scrap of public information known by the staff of the investigating authority must be in the files
of the investigation. But certainly, public informa tion that is specifically obtained for the purposes of
a particular investigation must, we believe, be in those files, and must be made available for interested
parties to see pursuant to Article 6.4, as it clearly form s part of the information relevant to a particular
issue that is before the investigating aut hority at the time it makes it determination. 940 We therefore
consider that the EC violated Article 6.4 by faili ng to provide timely opportunities for the interested
parties to see the Eurostat information obtained for purposes of the investigation.
7.848 Moreover, such public informa tion may constitute part of the essential facts that must be
disclosed under Article 6.9. In our view, inform ation concerning the volume and value of imports of
Norwegian salmon, falls within the scope of " essential facts" which are to be disclosed under
Article 6.9. The disclosure documents do contain information on the volume and value of imports of
Norwegian salmon, although not necessarily in the form presented in Exhibit EC-10. The fact that the
EC has, in making its arguments to this Panel in r esponse to Norway's allegations of error, relied on a
sub-set of that information that was not disclosed in that form does not, in our view, suffice to
demonstrate a violation of Article 6.9. Article 6. 9 requires disclosure of essential fact that form the
basis of the investigating authorities' decision wh ether to impose definitive measures. It does not

938 EC, Answer to Panel Question 94, para. 22.
939 EC, Answer to Panel Question 94, para. 26.
940 See above VII.J.1(c).

require an investigating authority to predict what alle gations of error it might have to answer in future
dispute settlement and disclose the specific informat ion in the specific form on which it might in the
future rely in responding to those allegations. Theref ore, we consider that the fact that the specific
information as set out in Exhibit EC-10 was not disclosed does not constitute a violation of
Article 6.9.
- Exhibit EC-12
 contains data on the level of dumped imports from Norway
that excludes imports from one of the sampled companies.
7.849 The EC argues that, like Exhibit EC-10, this exhibit was provided to the Panel not as
"evidence" but as "an explanation (in tabular format) that forms an integral part of the text of the EC's
first written submission, placed in an Exhibit for the convenience of the Panel."941 The EC argues that
the information in this exhibit is based on the same Eurostat data as Exhibit EC-10, and explains how
the information in this exhibit corresponds to th e Eurostat data, as well as data from Nordlak's
questionnaire response.
7.850 Norway again asserts that the distinction between "evidence" and "explanation" is irrelevant.
Norway argues that some of the data in Exhibit EC -12 is new, based on a manipulation of data in the
record, rather than the cited sources directly. No rway argues that these computations involve choices
in how they were made, which in Norway's view ha ve a significant impact on the conclusions drawn.
Norway also argues that the purpose of the info rmation presented is to present facts supporting a
different conclusion than that reached by the inv estigating authority – a conclusion excluding imports
from Nordlaks that were included in the investigating authorities' determination. Finally, Norway
argues that this information was also not in the fil es made available to its representatives, and was not
disclosed pursuant to Article 6.9.
7.851 The views expressed above in our consideration of Exhibit EC-10 also apply here. We are
satisfied that the investigating authority did, in fact, extract relevant information from the Eurostat
data for purposes of this investigation, and that this information was be fore the investigating
authority. While it is clear that the information in EC-12 was not before the investigating authority in
the form in which it was submitted to the Panel, we are satisfied that the information has not been
impermissibly manipulated, but rather has been co mpiled and presented in a more useful form to
support the EC's arguments. We therefore decline to exclude it from our consideration in this dispute.
We note, however, that we did not rely on this information in making our decision on the issue in
connection with which it was submitted. As we f ound with respect to Exhibit EC-10, we conclude
that the EC violated Article 6.4 by failing to provi de timely opportunities for the interested parties to
see the Eurostat information obtained for purposes of th e investigation, but consider that the fact that
the specific information in Exhibit EC-12 was not disclosed does not constitute a violation of
Article 6.9.
- Exhibit EC-13 contains data on the proportion of sales made by the EC
salmon industry in the United Kingdom.
7.852 The EC argues that, like Exhibits EC-10 and EC -12, this exhibit was provided to the Panel
not as "evidence" but as "an explanation (in tabular form at) that forms an integral part of the text of
the EC's first written submission, placed in an Exhibit for the convenience of the Panel." 942 The EC
argues that the information in this exhibit is b ased on questionnaire responses of EC producers, which
were unquestionably before the investigating auth ority, including transaction-by-transaction listings,
as well as information from sampled Norwegian producer s, all of which are confidential. The EC
relied on this exhibit in support of its argument concerning consideration of price trends.

941 EC, Answer to Panel Question 1, para. 22.
942 EC, Answer to Panel Question 1, para. 26.

7.853 Norway objects to this exhibit on the basis th at although it may be based on data that was
before the authority, the original data has b een transformed into a new set of facts through
manipulation. Norway argues that a defending Memb er cannot manipulate data in the record in this
way, and thereby establish new facts that were not previously known. Norway also alleges that
whether the investigating authority had before it data on UK and non-UK sales is contradicted by a
statement in the Provisional Regulation, which notes that the UK market cannot be isolated from the
overall EC market in evaluating changes in consumption.
943 Finally, Norway argues that this
information was also not in the files made ava ilable to its representatives, and was not disclosed
pursuant to Article 6.9.
7.854 With respect to Exhibit EC-13, we have no doubt that it is based on information that was
before the investigating authority, as Norway do es not dispute that it was derived from questionnaire
responses from EC and Norwegian producers. In our view, the statement in the Provisional
Regulation does not demonstrate that the investiga ting authority did not have information on UK and
non-UK sales by the domestic producers. That st atement rejects the possibility of considering
declining consumption in one part of the domestic market as a cause of injury when consumption as a
whole was increasing – it says nothing about the existence of data for particular sales. The fact that
the EC has, in making its arguments to the Panel, so rted data in a way that it had not done during the
investigation does not demonstrate that the underlyi ng information was not before the investigating
authority. Such a reformulation of the information before the investigating authority may give rise to
questions as to the adequacy of the analysis of the issue in question at the time of the determination,
and whether the arguments presented to a reviewing Panel constitute post hoc rationalizations, but
those are not the questions to be addressed in deci ding whether the information in the exhibit may be
considered by a panel. We are satisfied that the investigating authority did have before it the
information reflected in EC-13, albeit not in the fo rm in which it was submitted to the Panel, and we
are satisfied that the information has not been impermissibly manipulated, but rather has been
compiled and presented in a different form to support the EC's arguments. We do not consider that an
investigating authority must have before it at the ti me of its determination in formation organized in a
form that will be later deemed useful in supporti ng its arguments in later dispute settlement. We
therefore decline to exclude it from our consideration in this dispute. We note, however, that we did
not rely on this information in making our decisi on on the issue in connection with which it was
submitted.
- Exhibit EC-14
 contains a table entitled "injury data with Corrected
US/Canadian Imports"
- Exhibit EC-15 contains a table entitled "Imports originating in other third
countries (corrected data)"
7.855 The EC argues that, as it explained in its firs t written submission, the data on imports of
salmon from the United States and Canada set out in the Provisional Regulation were incorrect. The
EC submitted the corrected figures in Exhibit EC-1 5, and based on those figures, submitted Exhibit
EC-14 to support the contention that the error in the data does not affect the outcome of the
determination, and asks the Panel to take that in to consideration when making its findings. The EC
acknowledges that the correction of the technical error regarding salmon imports from the US and
Canada post-dates the measure at issue.
7.856 Norway argues that the EC, by stating that the correction post-dates the measure explicitly
confirms that, at least part of the data in those exhibits is new and was not before the investigating
authority. As a result, Norway asserts, the data is inadmissible. Norway also argues that, based on
the corrected data, the EC presents analysis di fferent from that originally undertaken by the

943 Provisional Regulation, Recital 101.

investigating authority, and that for the Panel to consider this data would require an impermissible de
novo review. Finally, Norway argues that this info rmation was plainly not made available to the
parties during the investigation, contrary to Articles 6.2 and 6.4, and not disclosed, contrary to
Article 6.9.
7.857 It is clear, and the EC does not dispute, that the facts set out in these two Exhibits were not
available to the investigating authority at the time it made its determination. Indeed, it is clear that the
investigating authority cited and relied upon different facts concerning the volume of imports from the
United States and Canada, and the consequent information on rate of increase and changes in market
share. We may not, in our examination of the anti-dumping measure, take into account facts that were
not before the investigating authority when it made its decision. Therefore, we consider it appropriate
to exclude these exhibits from our consideration.
- Exhibit EC-16
contains data concerning salmon imports from the United
States.
7.858 The EC asserts that Exhibit EC-16 is the same pr eviously referred to public Eurostat data that
was before the investigating authority. The EC ar gues that the use of these data is evident from the
comparison of domestic and imported salmon pri ces reflected in the Definitive Regulation at
paragraphs 83-86. The EC relies on exhib it EC-16 in connection with its arguments on non-
attribution of injury to imports from Canada and the United States.
7.859 Norway argues that the mere fact that the data in Exhibit EC-16 were taken from public
Eurostat data does not demonstrate that it was part of the investigation record. Norway asserts that
the EC has not demonstrated that the data, as organi zed in the exhibit, was before the authority during
the investigation. Moreover, Norway argues, the exhibit relies on import statistics to demonstrate that
imports of salmon from the United States consists mos tly of wild salmon, despite the fact that the
investigating authority specifically stated that "i mport statistics do not distinguish between farmed
salmon and wild salmon". 944 Finally, Norway argues that this information was also not in the files
made available to its representatives, and was not disclosed pursuant to Article 6.9.
7.860 The views expressed above in our consideration of Exhibit EC-10 also apply here. We are
satisfied that the investigating authority did, in fact, extract relevant information from the Eurostat
data for purposes of this investigation, and that this information was be fore the investigating
authority. We are satisfied that the information has not been impermissibly manipulated, but rather
has been compiled and presented in a more useful form to support the EC's arguments. That the EC is
relying on this exhibit to support an argument that may be in some respect contradictory to statements
in the Provisional and Definitive Regulations goes to the persuasiveness of those arguments, but is not
relevant to whether or not the information in questio n may be considered by the Panel. We therefore
decline to exclude it from our consideration in this dispute. We note, however, that we did not rely on
this information in making our decision on the issu e in connection with which it was submitted. As
we found with respect to Exhibit EC-10, we conclude that the EC violated Article 6.4 by failing to
provide timely opportunities for the interested part ies to see the Eurostat information obtained for
purposes of the investigation, but consider that th e fact that the specific information as set out in
Exhibit EC-16 was not disclosed does not constitute a violation of Article 6.9.

944 Provisional Regulation, Recital 96, Definitive Regulation, Recital 84.

VIII. CONCLUSIONS AND RECOMMENDATION
A. C
ONCLUSIONS
8.1 In light of the findings we have set out in th e foregoing sections of our Report, we conclude
that the European Communities acted inconsistently with:
(i) Article 4.1 of the AD Agreement because its approach to defining the
domestic industry in this case resulted in an investigation concerning a
domestic industry that did not compor t with the definition set forth in
Article 4.1 of the AD Agreement, and consequently
- Article 5.4 of the AD Agreement in determining support for the
application for initiation on the basi s of information relating to a
wrongly-defined domestic industry, and
- Articles 3.1, 3.4 and 3.5 of the AD Agreement in undertaking injury
and causation analyses on the basis of information relating to a
wrongly-defined domestic industry;
945
(ii) Article 6.10 of the AD Agreement because it failed to include Salmar in the
ten companies selected for investig ation pursuant to the second limited
investigation technique described in the second sentence of Article 6.10;946
(iii) Article 2.2.2 of the AD Agreement when it disregarded actual domestic profit
margin data pertaining to domestic sales of eight investigated companies, and
actual SG&A data pertaining to domestic sales of one investigated company,
on the basis of the low volume of those sales (5 per cent representative sales
test);
947
(iv) Article 2.2.2 of the AD Agreement when it disregarded actual domestic profit
margin data pertaining to domestic sales of three investigated companies on
the basis of the less-than-10 per cent profitable sales test;
948
(v) Article 6.8 and paragraph 3 of Anne x II of the AD Agreement when it
disregarded the filleting cost information submitted by Grieg Seafood AS and
inappropriately resorted to "facts available";949
(vi) Article 6.8 and paragraph 3 of Anne x II of the AD Agreement when it
disregarded the finance cost information submitted by Grieg Seafood AS and
inappropriately resorted to "facts available";
950
(vii) Article 9.4(i) of the AD Agreement because it imposed a fixed amount of
anti-dumping duty on non-investigated cooperating companies on the basis of
a flawed finding that the weighted aver age "injury margin" was less than the

945 Para. 7.124.
946 Para. 7.205.
947 Para. 7.309.
948 Para. 7.318.
949 Para. 7.372.
950 Para. 7.386.

weighted average margin of dumping calculated for the investigated
companies;951
(viii) Article 6.8 and paragraph 1 of Annex II of the AD Agreement because it
applied "facts available" for the pur pose of establishing the margin of
dumping of 33 of 67 companies that did not receive the "sampling
questionnaire" and which were not members of the FHL or the NSL;952
(ix) Article 2.2.1.1 of the AD Agreement when it made upward adjustments to the
costs of production of [[XXX]] and [[XXX]] to account for NRCs on the
basis of a three-year average of the NRCs incurred for each company
between 2002 and 2004;
953
(x) Article 2.2 of the AD Agreement becaus e it calculated the finance costs used
in the determination of the costs of production of [[XXX]] and [[XXX]] on
the basis of a three-year average of the finance costs incurred between 2002
and 2004, thereby failing to properly establish these companies' constructed
normal values;954
(xi) Article 2.2 and 2.2.1.1 of the AD Agreement because the EC rejected smolt
cost adjustments to [[XXX]] and [[XXX]] cost of production and could not
demonstrate that the investigati ng authority accepted these adjustments
between Definitive Disclosure and adoption of the Definitive Regulation;
955
(xii) Article 2.2 of the AD Agreement because it rejected the adjustment for
income earned on the sale of smolt during the period of investigation that was
requested by [[XXX]];956
(xiii) Article 2.2.2 of the AD Agreement because it rejected [[XXX]] reported
G&A costs;957
(xiv) Article 2.2.2(iii) of the AD Agreement because it applied a methodology that
involved double-counting and was thereb y not "reasonable" to determine
[[XXX]] SG&A costs;958
(xv) Articles 2.2 and 2.2.1.1 of the AD Agreement when it added revenue earned
by [[XXX]] from slaughtering services provided to third parties to its cost of
production;
959
(xvi) Articles 3.1 and 3.2 of the AD Agreemen t because in finding material injury
it treated imports attributable to a company for which a de minimis margin

951 Para. 7.428.
952 Para. 7.462.
953 Paras. 7.510 and 7.515.
954 Para. 7.543.
955 Para. 7.554
956 Para. 7.572.
957 Para. 7.592.
958 Para. 7.605.
959 Para. 7.609.

was calculated, and all imports from unexamined producers and exporters, as
dumped;
960
(xvii) Articles 3.1 and 3.2 of the AD Agreemen t because in finding material injury
it failed to take into account the pri ce premium enjoyed by domestic salmon
products in considering whether there was significant price undercutting;961
(xviii) Articles 3.1 and 3.4 of the AD Agreemen t because in finding material injury
it failed to take into account arguments alleging a distortive effect of using
EUR, instead of GBP, in determini ng price trends and thereby failed to
provide an adequate explanation of its finding of declining prices;962
(xix) Article 3.5 of the AD Agreement becau se it failed to properly examine
known factors other than the dumped im ports which at the same time were
causing injury to the domestic industry, and failed to ensure that injuries
caused by these other factors were not attributed to dumped imports;
963
(xx) Article 9.2 of the AD Agreement when it imposed MIPs on the investigated
companies on the basis of a flawed fi nding that the "non-injurious" MIPs
were less than the investigated comp anies' respective normal values, thus
failing to ensure that anti-dumping duties were collected in the "appropriate
amounts";
964
(xxi) Article 9.4(ii) of the AD Agreement because there was no objective factual
basis to support the conclusion that the MIPs imposed on non-investigated
companies were lower than the weighted average of the normal values for the
investigated parties;
965
(xxii) Article 6.4 of the AD Agreement by failing to provide timely opportunities
for interested parties to see:
- all non-confidential information contained in 68 documents which
were relevant to the presentation of their cases,966
- a letter received from Dr. Jaffa,967
- 15 Notes Verbales submitted to the investigating authority by the
Norwegian government,968 and
- relevant Eurostat information obtain ed by the investigating authority
for purposes of the investigation.
8.2 In light of the findings we have set out in th e foregoing sections of our Report, we conclude
that the European Communities did not act inconsistently with:

960 Paras. 7.636 and 7.646.
961 Paras. 7.640 and 7.646.
962 Paras. 7.645 and 7.646.
963 Para. 7.669.
964 Para. 7.727.
965 Para. 7.739.
966 Para. 7.774.
967 Para. 7.775.
968 Para. 7.776.

(i) Articles 2.1 and 2.6 of the AD Agreement with respect to the product under
consideration, nor as a consequence, Articles 2.1, 3.1, 3.2, 3.4, 3.5, 3.6, 5.1
and 5.4 of the AD Agreement;
969
(ii) Articles 3.1, 3.4 and 3.5 of the AD Agreement by having had recourse to
sampling in making its injury determination;970
(iii) Article 6.10 of the AD Agreement in excluding all non-producing exporters
from the selection of companies to inv estigate pursuant to the second limited
investigation technique described in the second sentence of Article 6.10;971
(iv) Article 6.10 of the AD Agreement for not having included Bremnes in the ten
companies selected for investig ation pursuant to the second limited
investigation technique described in the second sentence of Article 6.10;972
(v) Articles 2.2 and 2.2.1 of the AD Agreement in excluding the domestic sales
of certain investigated companies from the determination of normal value, on
the grounds that they were outside of the ordinary course of trade by reason
of price;
973
(vi) Article 9.4(i) of the AD Agreement in attributing a 20.9 per cent margin of
dumping to non-cooperating companies;974
(vii) Article 6.8 and paragraph 1 of Annex II of the AD Agreement in applying
"facts available" for the purpose of establishing the margin of dumping of 34
of 67 companies that did not receive the "sampling questionnaire" and which
were members of the industry associations represented by the FHL;
975
(viii) Articles 2.1, 2.2 and 2.2.1.1 of the AD Agreement in making adjustments to
the costs of production of [[XXX]], [[XXX]] and [[XXX]] for certain
NRCs;
976
(ix) Article 2.2 of the AD Agreement in rej ecting the adjustment for the cost of
purchased smolt relating to salmon harvested outside of the period of
investigation that was requested by [[XXX]];977
(x) Article 2.2.2 of the AD Agreement in rejecting [[XXX]] reported selling
expenses;978
(xi) Articles 9.1, 9.2 and 9.3 of the AD Agreement and Article VI:2 of the GATT
1994 by not adopting a mechanism to ensure that the MIPs imposed on
investigated parties could not result in the collection of anti-dumping duties

969 Para. 7.76.
970 Para. 7.129.
971 Para. 7.181.
972 Para. 7.195.
973 Para. 7.279.
974 Para. 7.433.
975 Para. 7.461.
976 Para. 7.488.
977 Para. 7.570.
978 Para. 7.599.

in excess of the ad valorem equivalent of those parties' respective margins of
dumping calculated in the original investigation;
979
(xii) Articles 9.1, 9.2 and 9.3 of the AD Agre ement because of the fact that at
certain price levels, the fixed anti-dumping duties imposed on investigated
parties could result in the collection of anti-dumping duties in excess of the
ad valorem equivalent of those parties' respective margins of dumping
calculated in the original investigation;
980
(xiii) Article 6.4 of the AD Agreement by failing to provide timely opportunities
for interested parties to see confidential information contained in 68
documents;
981
(xiv) Articles 6.2 and 6.9 of the AD Agreement with respect to disclosure of the
essential facts regarding:
- dumping by PFN, Hydroteck and Sinkaberg-Hansen, and minimum
import prices,982
- the definition of the domestic industry, causation and non-
attribution;983 and
(xv) Article 12.2 and 12.2.2 of the AD Agreem ent in setting forth its conclusions
as to the product under consideration in the Definitive Regulation.984
8.3 Finally, in light of the findings we have set out in paragraphs 8.1 (iv)-(vi), (ix), (x) and (xvi)-
(xxii), we make no findings, based on judicial economy, in respect of Norway's claims under:
(i) Article 2.2 of the AD Agreement, in respect of the less-than-10 per cent
profitable sales test applied by the EC to determine whether domestic sales
are made outside of the ordinary course of trade;985
(ii) Paragraph 6 of Annex II of the AD Ag reement, in relation to the EC's
reliance on "facts available" for the pur pose of calculating the filleting costs
of Grieg Seafood AS;986
(iii) Paragraph 6 of Annex II of the AD Ag reement, in relation to the EC's
reliance on "facts available" for the pur pose of calculating the finance costs
of Grieg Seafood AS;987
(iv) Articles 2.1 and 2.2 of the AD Agreement, as regards the upward adjustments
made to the costs of production of [[XXX]] and [[XXX]] for NRCs on the
basis of the three-year average of NRCs incurred between 2002 and 2004;
988

979 Paras. 7.749-7.752.
980 Para. 7.761.
981 Para. 7.773.
982 Para. 7.803.
983 Paras. 7.809 and 7.810.
984 Para. 7.830.
985 Para. 7.319.
986 Para. 7.373.
987 Para. 7.387.

(v) Article 2.2 of the AD Agreement, in relation to the EC's inclusion of a loss of
NOK [[XXX]] million that the [[XXX]] incurred in 2002 on the write-down
of shares held in [[XXX]] into its calculation of [[XXX]] finance costs;
989
(vi) Article 3.5 of the AD Agreement, as regards the EC's consideration of
dumped imports, price undercutting and pricing trends in its finding of
injury;990
(vii) Article 3.1 of the AD Agreement, in re lation to the EC's determination of
causation;991
(viii) Article VI:2 of the GATT 1994, in relation to the imposition of the MIPs on
both investigated and non-investigated parties at the level of the "non-
injurious" MIPs;992
(ix) Article 6.2 of the AD Agreement, as regards the failure to provide timely
opportunities for interested parties to see all non-confidential information
relevant to the presentation of their cases;
993 and
(x) Articles 12.2 and 12.2.2 of the AD Agreement, in relation to the sufficiency
of the notice given to interested parties of the definition of the domestic
industry, the preliminary or final determ inations of injury and causation, the
level of the minimum import prices, as well as the sufficiency of the
explanation pertaining to the determination of dumping.
994
B. RECOMMENDATION
8.4 Pursuant to Article 3.8 of the DSU, in cases wh ere there is infringement of the obligations
assumed under a covered agreement, the action is considered prima facie to constitute a case of
nullification or impairment of bene fits under that agreement. Accord ingly, we conclude that to the
extent the European Communities has acted inconsis tently with the provisions of the AD Agreement,
it has nullified or impaired benefits accruing to Norway under that Agreement.
8.5 We recommend that the Dispute Settlement Body request the European Communities to bring
its measure into conformity with its obligations under the AD Agreement.
8.6 Norway requests that the Panel suggest that the EC implement the recommendations and
rulings of the DSB by withdrawing the contested m easures. Norway argues that the Panel would be
justified in making such a suggestion in the present case because of the nature and scope of the EC's
violations of the AD Agreement and of the GATT 1994.995
8.7 The EC does not address Norway's specific requ est in respect of the implementation of the
recommendations and rulings of the DSB.996

988 Paras. 7.510 and 7.516.
989 Para. 7.544.
990 Paras. 7.636 and 7.646.
991 Para. 7.669.
992 Paras. 7.728 and 7.739.
993 Para. 7.777.
994 Paras. 7.831-7.834.
995 Norway, FWS, para. 1081.
996 EC, FWS, paras. 717-727.

8.8 Article 19.1 of the DSU provides:
"Where a panel or the Appellate Body concl udes that a measure is inconsistent with a
covered agreement, it shall recommend that the Member concerned bring the measure
into conformity with that agreement. In addition to its recommendations, the panel or
Appellate Body may suggest ways in which the Member concerned could implement
the recommendations". (Footnote omitted.)
Thus, a panel must ("shall") reco mmend that a Member found to have acted inconsistently with a
provision of a covered agreement "bring the measure into conformity", but has discretion to ("may")
suggest ways in which a Member could implement that recommendation. Clearly, however, a panel is
not required to make a suggestion should it not deem it appropriate to do so, and in fact, most panels
have not made such suggestions.

8.9 In this case, we exercise our discretion to no t make any suggestions concerning ways in
which the EC could implement our recommendation to bring its measure into conformity.