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WORLD TRADE
ORGANIZATION

WT/DS189/R
28 September 2001
(01-4470)

 
  Original: English

ARGENTINA - DEFINITIVE ANTI-DUMPING
MEASURES ON IMPORTS OF CERAMIC
FLOOR TILES FROM ITALY



Report of the Panel



The report of the Panel on Argentina - Definitive Anti-Dumping Measures on Imports of Ceramic Floor Tiles from Italy is being circulated to all Members, pursuant to the DSU. The report is being circulated as an unrestricted document from 28 September 2001 pursuant to the Procedures for the Circulation and Derestriction of WTO Documents (WT/L/160/Rev.1). Members are reminded that in accordance with the DSU only parties to the dispute may appeal a panel report. An appeal shall be limited to issues of law covered in the Panel report and legal interpretations developed by the Panel. There shall be no ex parte communications with the Panel or Appellate Body concerning matters under consideration by the Panel or Appellate Body.


Note by the Secretariat: This Panel Report shall be adopted by the Dispute Settlement Body (DSB) within 60 days after the date of its circulation unless a party to the dispute decides to appeal or the DSB decides by consensus not to adopt the report. If the Panel Report is appealed to the Appellate Body, it shall not be considered for adoption by the DSB until after the completion of the appeal. Information on the current status of the Panel Report is available from the WTO Secretariat.




TABLE OF CONTENTS

  1. INTRODUCTION
     
  2. FACTUAL ASPECTS
     
  3. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
  1. THE EUROPEAN COMMUNITIES
  1. ARGENTINA
  1. ARGUMENTS OF THE PARTIES AND THIRD PARTIES
  1. CLAIM UNDER ARTICLE 6.8 OF THE AD AGREEMENT
  1. The EC

(a) Arguments of the EC in its first written submission in support of its claim under Article 6.8 of the AD Agreement

(b) Arguments of the EC in its first oral statement in support of its claim under Article 6.8 of the AD Agreement

(c) Replies of the EC to the first set of questions by the Panel relating to the EC's claim under Article 6.8 of the AD Agreement

(d) Replies of the EC to the questions made by Argentina, following the first meeting of the Panel with the parties, that relate to the EC's claim under Article 6.8 of the AD Agreement

(e) Arguments of the EC in its second written submission in support of its claim under Article 6.8 of the AD Agreement

(f) Arguments of the EC in its second oral statement in support of its claim under Article 6.8 of the AD Agreement

(g) Replies of the EC to the second set of questions by the Panel relating to the EC's claim under Article 6.8 of the AD Agreement

  1. Argentina

(a) Arguments of Argentina in its first written submission relating to the EC's claim under Article 6.8 of the AD Agreement

(b) Arguments of Argentina in its first oral statement relating to the EC's claim under Article 6.8 of the AD Agreement

(c) Arguments of Argentina in its oral statement at the third-party session of the first meeting of the Panel with the parties, relating to the EC's claim under Article 6.8 of the AD Agreement

(d) Replies of Argentina to the first set of questions by the Panel relating to the EC's claim under Article 6.8 of the AD Agreement

(e) Arguments of Argentina in its second written submission relating to the EC's claim under Article 6.8 of the AD Agreement

(f) Arguments of Argentina in its second oral statement relating to the EC's claim under Article 6.8 of the AD Agreement 

(g) Replies of Argentina to the second set of questions by the Panel relating to the EC's claim under Article 6.8 of the AD Agreement 

  1. Third Parties: Japan 

(a) Arguments of Japan in its written submission relating to the EC's claim under Article 6.8 of the AD Agreement 

(b) Arguments of Japan in its oral statement relating to the EC's claim under Article 6.8 of the AD Agreement 

  1. Third Parties: Turkey

(a) Arguments of Turkey in its written submission relating to the EC's claim under Article 6.8 of the AD Agreement 

(b) Arguments of Turkey in its oral statement relating to the EC's claim under Article 6.8 of the AD Agreement

  1. Third Parties: The United States 

(a) Arguments of the United States in its written submission relating to the EC's claim under Article 6.8 of the AD Agreement 

  1. CLAIM UNDER ARTICLE 6.10 OF THE AD AGREEMENT
  1. The EC

(a) Arguments of the EC in its first written submission in support of its claim under Article 6.10 of the AD Agreement

(b) Arguments of the EC in its first oral statement in support of its claim under Article 6.10 of the AD Agreement 

(c) Replies of the EC to the first set of questions by the Panel relating to the EC's claim under Article 6.10 of the AD Agreement

(d) Replies of the EC to the questions made by Argentina, following the first meeting of the Panel with the parties, that relate to the EC's claim under Article 6.10 of the AD Agreement 

(e) Arguments of the EC in its second written submission in support of its claim under Article 6.10 of the AD Agreement 

  1. Argentina 

(a) Arguments of Argentina in its first written submission relating to the EC's claim under Article 6.10 of the AD Agreement

(b) Arguments of Argentina in its first oral statement relating to the EC's claim under Article 6.10 of the AD Agreement 

(c) Arguments of Argentina in its oral statement at the third-party session of the first meeting of the Panel with the parties, relating to the EC's claim under Article 6.10 of the AD Agreement

(d) Replies of Argentina to the first set of questions by the Panel relating to the EC's claim under Article 6.10 of the AD Agreement

(e) Arguments of Argentina in its second written submission relating to the EC's claim under Article 6.10 of the AD Agreement

(f) Arguments of Argentina in its second oral statement relating to the EC's claim under Article 6.10 of the AD Agreement 

  1. Third Parties: Japan 

(a) Arguments of Japan in its written submission relating to the EC's claim under Article 6.10 of the AD Agreement 

  1. Third Parties: Turkey
     

  2. Third Parties: The United States
  1. CLAIM UNDER ARTICLE 2.4 OF THE AD AGREEMENT 
  1. The EC

(a) Arguments of the EC in its first written submission in support of its claim under Article 2.4 of the AD Agreement 

(b) Arguments in the EC's first oral statement in support of its claim under Article 2.4 of the AD Agreement 

(c) Replies of the EC to the first set of questions by the Panel relating to the EC's claim under Article 2.4 of the AD Agreement 

(d) Replies of the EC to the questions made by Argentina, following the first meeting of the Panel with the parties, that relate to the EC's claim under Article 2.4 of the AD Agreement 

(e) Arguments of the EC in its second written submission in support of its claim under Article 2.4 of the AD Agreement 

(f) Arguments of the EC in its second oral statement in support of its claim under Article 2.4 of the AD Agreement 

(g) Replies of the EC to the second set of questions by the Panel relating to the EC's claim under Article 2.4 of the AD Agreement

  1. Argentina

(a) Arguments of Argentina in its first written submission relating to the EC's claim under Article 2.4 of the AD Agreement 

(b) Arguments of Argentina in its first oral statement relating to the EC's claim under Article 2.4 of the AD Agreement

(c) Replies of Argentina to the first set of questions by the Panel relating to the EC's claim under Article 2.4 of the AD Agreement 

(d) Arguments of Argentina in its second written submission relating to the EC's claim under Article 2.4 of the AD Agreement 

(e) Arguments of Argentina in its second oral statement relating to the EC's claim under Article 2.4 of the AD Agreement 

(f) Replies of Argentina to the second set of questions by the Panel relating to the EC's claim under Article 2.4 of the AD Agreement 

  1. Third Parties: Japan 
     
  2. Third Parties: Turkey 
     
  3. Third Parties: The United States 

(a) Arguments of the United States in its written submission relating to the EC's claim under Article 2.4 of the AD Agreement

  1. CLAIM UNDER ARTICLE 6.9 OF THE AD AGREEMENT 
  1. The EC 

(a) Arguments by the EC in its first written submission in support of its claim under Article 6.9 of the AD Agreement 

(b) Arguments in the EC's first oral statement in support of its claim under Article 6.9 of the AD Agreement 

(c) Replies of the EC to the first set of questions by the Panel relating to the EC's claim under Article 6.9 of the AD Agreement 

(d) Arguments in the EC's second written submission in support of its claim under Article 6.9 of the AD Agreement 

  1. Argentina

(a) Arguments in Argentina's first written submission relating to the EC's claim under Article 6.9 of the AD Agreement

(b) Arguments of Argentina in its first oral statement relating to the EC's claim under Article 6.9 of the AD Agreement 

(c) Arguments of Argentina in its oral statement at the third-party session of the first meeting of the Panel with the parties, relating to the EC's claim under Article 6.9 of the AD Agreement 

(d) Replies of Argentina to the first set of questions by the Panel relating to the EC's claim under Article 6.9 of the AD Agreement

(e) Arguments of Argentina in its second written submission relating to the EC's claim under Article 6.9 of the AD Agreement

(f) Arguments of Argentina in its second oral statement relating to the EC's claim under Article 6.9 of the AD Agreement

  1. Third Parties: Japan

(a) Arguments of Japan in its written submission relating to the EC's claim under Article 6.9 of the AD Agreement 

(b) Arguments of Japan in its oral statement relating to the EC's claim under Article 6.9 of the AD Agreement

  1. Third Parties: Turkey

(a) Arguments by Turkey in its written submission relating to the EC's claim under Article 6.9 of the AD Agreement 

(b) Arguments of Turkey in its oral statement relating to the EC's claim under Article 6.9 of the AD Agreement

  1. Third Parties: The United States

(a) Arguments of the United States in its written submission relating to the EC's claim under Article 6.9 of the AD Agreement 

(b) Arguments of the United States in its oral statement relating to the EC's claim under Article 6.9 of the AD Agreement 

  1. INTERIM REVIEW 
     
  2. FINDINGS 
  1. STANDARD OF REVIEW 
     
  2. BURDEN OF PROOF
     
  3. FACTUAL INTRODUCTION
     
  4. CLAIM 1: FACTS AVAILABLE UNDER ARTICLE 6.8 AND ANNEX II OF THE AD AGREEMENT 
  1. Arguments of the parties 
     
  2. Analysis by the Pane

(a) Confidentiality of the information submitted and the failure to provide non-confidential summaries

(b) Lack of documentary evidence 

(c) Failure to comply with formal requirements of the questionnaire

(d) Late submission of the information 

  1. Conclusion 
  1. CLAIM 2: ARTICLE 6.10: REQUIREMENT TO CALCULATE INDIVIDUAL MARGINS OF DUMPING FOR ALL EXPORTERS INCLUDED IN THE SAMPLE
  1. Arguments of the parties 
     
  2. Analysis by the Panel
     
  3. Conclusion
  1. CLAIM 3: ARTICLE 2.4: THE NEED TO MAKE ADJUSTMENTS FOR DIFFERENCES IN PHYSICAL CHARACTERISTICS
  1. Arguments of the parties
     
  2. Analysis by the Panel
     
  3. Conclusion
  1. CLAIM 4: ARTICLE 6.9: FAILURE TO INFORM THE EXPORTERS OF THE "ESSENTIAL FACTS" ON WHICH THE DECISION IS BASED
  1. Arguments of the parties
     
  2. Analysis by the Panel
     
  3. Conclusion 
  1. CONCLUSIONS AND RECOMMENDATION 


I. INTRODUCTION

1.1 On 26 January 2000, the European Communities (the "EC") requested consultations with Argentina regarding the definitive anti-dumping measures on imports of ceramic floor tiles from Italy imposed by Argentina on 12 November 1999.1 The EC made its request pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU") and Article 17.3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the "AD Agreement"). The EC and Argentina held consultations on 1 March 2000, but failed to reach a mutually satisfactory solution.

1.2 On 7 November 2000, the EC requested the establishment of a panel with the standard terms of reference set out in Article 7 of the DSU.2 The EC made its request pursuant to Article 6 of the DSU and Article 17 of the AD Agreement. In that request, the EC identified the measures at issue as the definitive anti-dumping measures on imports of ceramic floor tiles ("porcellanato") from Italy imposed by Argentina on 12 November 1999.

1.3 At its meeting on 17 November 2000, the Dispute Settlement Body ("DSB") established a Panel pursuant to the above request.3 At that meeting, the parties to the dispute agreed that the Panel should have standard terms of reference. The terms of reference were:

To examine, in the light of the relevant provisions of the covered agreements cited by the European Communities in document WT/DS189/3 the matter referred to the DSB by the European Communities 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.

1.4 On 12 January 2001, the parties agreed to the following composition of the Panel:

1.5 Chairman: Mr. Hugh McPhail

Mr. Gilles Gauthier
Mr. Stephen Powell

  Members:
   

1.6 Japan, Turkey and the United States reserved their rights to participate in the Panel proceedings as third parties.

1.7 The Panel met with the parties on 18-19 April 2001 and 1 June 2001. It met with the third parties on 19 April 2001.

1.8 The Panel submitted its interim report to the parties on 25 July 2001. The Panel submitted its final report to the parties on 14 September 2001.

II. FACTUAL ASPECTS

2.1 This dispute concerns the imposition of definitive anti-dumping measures by the Argentine Ministry of the Economy on imports of ceramic floor tiles from Italy.

2.2 On 30 January 1998, Cerámica Zanon ("Zanon") filed an application for an anti-dumping investigation with the Dirección de Competencia Desleal ("DCD" - Directorate of Unfair Trade) of the Argentine Ministry of the Economy alleging that imports of ceramic tiles were being exported to Argentina at dumped prices.4 On 25 September 1998, the Ministry of the Economy published a public notice announcing the initiation of an anti-dumping investigation on imports of ceramic tiles from Italy.

2.3 On 30 November 1998, Assopiastrelle, the association of Italian producers of ceramic tiles, requested the DCD to limit the calculation of individual dumping margins to four or five exporters accounting for around 70 per cent of the exports of the subject product from Italy to Argentina.5 On 12 December 1998, the DCD accepted this request.6 On 10 December 1998, four Italian exporters filed responses to the investigation questionnaire: Ceramica Bismantova "(Bismantova"), Ceramiche Casalgrande ("Casalgrande"), Ceramiche Caesar ("Caesar"), and Marazzi Ceramiche ("Marazzi"). On 24 March 1999, the DCD issued an affirmative preliminary determination ("Preliminary Dumping Determination").7 In that determination, the DCD disregarded the questionnaire replies submitted by the above-mentioned exporters. The DCD proceeded to determine the dumping margin on the basis of the information available on the record, other than that presented by the exporters.8 As the DCD applied the same set of "facts available" to the four exporters concerned, they all were assessed the same dumping margin.

2.4 On 23 September 1999, the DCD issued an affirmative final determination ("Final Dumping Determination").9 In this determination, the DCD relied predominantly on the information available on the record, other than that presented by the exporters.10 As the DCD applied the same set of "facts available" to the four exporters concerned, an identical dumping margin was assessed for all of them.

2.5 On 12 November 1999, the Ministry of the Economy, based upon the affirmative final determination regarding the existence of dumping issued by the DCD on 23 September 1999, and the affirmative final determination regarding the existence of injury and causality issued by the CNCE on 3 September 1999,11 imposed definitive anti-dumping measures on imports of ceramic tiles originating in Italy for a period of three years.12 Such measures took the form of specific anti-dumping duties to be collected as the absolute difference between the FOB price invoiced in any one shipment and a designated "minimum export price" also fixed in FOB terms, whenever the former price is lower than the latter. Each of the three size categories used for the dumping margin calculations was assigned its own "minimum export price".


1 WT/DS189/1.

2 WT/DS189/3.

3 WT/DS189/4.

4 The DCD was responsible for conducting the dumping investigation. The injury investigation was conducted separately by the Comisión Nacional de Comercio Exterior (CNCE – National Foreign Trade Commission). As the EC did not make any injury claims, no reference is made here to the injury aspects of the investigation.

5 See Exhibit EC-3A.

6 See Exhibit EC-3B.

7 Informe Relativo a la Determinación Preliminar del Margen de Dumping en la Investigación por Presunto Dumping en Operaciones de Exportación hacia la República Argentina de Placas y Baldosas de Cerámica, sin Barnizar ni Esmaltar, para Pavimentación o Revestimiento, de Gres Fino, "Porcellanato", en todas sus Medidas, Originarias de la República Italiana, Exhibit ARG-8.

8 The DCD calculated three separate dumping margins for the subject product, on account of three different size-categories: tiles of 20 cm by 20 cm, tiles of 30 cm by 30 cm, and tiles of 40 cm by 40 cm

9 Informe Relativo a la Determinación Definitiva del Margen de Dumping en la Investigación por Práctica Comercial Desleal en Operaciones de Exportación hacia la República Argentina de Placas y Baldosas de Cerámica, sin Barnizar ni Esmaltar, para Pavimentación o Revestimiento, de Gres Fino, "Porcellanato", en todas sus Medidas, Originarias de la República Italiana, Exhibit EC-2.

10 As in the preliminary determination, the DCD calculated the dumping margin by size category.

11 Acta de Directorio No. 547, Comisión Nacional de Comercio Exterior.

12 Resolución 1385/99 del Ministerio de Economía y Obras y Servicios Públicos ("Notice of Imposition of Definitive Anti-Dumping Measures"), Exhibit EC-1.


Continuation: Chapter III