4.944 Casalgrande: File No. 061-010304/98 of 10 December 1998 � folio 876.

- Annex III. List of importers in Argentina and third countries of the goods under investigation. - Annex IV. Information on the producer/exporter market.

- Annex V. Summary of producer/exporter sales.

- Annex VI. Summary of producer/exporter sales.

- Annex VII. Actual exports to Argentina (1997 and 1998).

- Annex VIII. Sales in the Italian domestic market (1997 and 1998).

- Annex IX. Exports to third countries.

- Annex X. Cost structure of the goods under investigation in the Italian domestic market in 1997 and 1998.

- Annex XI. Cost structure of the exported goods.

4.945 Caesar: File No. 061-010305/98 of 10 December 1998 � folio 879.

- Annex III. List of importers in Argentina and third countries of the goods under investigation.

- Annex IV. Information on the producer/exporter market.

- Annex V. Summary of producer/exporter sales.

- Annex VI. Summary of producer/exporter sales.

- Annex VII. Actual exports to Argentina (1997 and 1998).

- Annex VIII. Sales in the Italian domestic market.

- Annex IX. Exports to third countries.

- Annex X. Cost structure of the goods under investigation in the Italian domestic market.

- Annex XI. Cost structure of the exported goods.

4.946 Marazzi: File No. 061-010306/98 of 10 December 1998 � folio 880.

- Annex III. List of importers in Argentina and third countries of the goods under investigation.

- Annex IV. Information on the producer/exporter market.

- Annex V. Summary of producer/exporter sales.

- Annex VI. Summary of producer/exporter sales.

- Annex VII. Actual exports to Argentina (1997 and 1998).

- Annex VIII. Sales in the Italian domestic market.

- Annex IX. Exports to third countries.

- Annex X. Cost structure of the goods under investigation in the Italian domestic market.

- Annex XI. Cost structure of the exported goods.

4.947 Bismantova: File No. 061-010307/98 of 10 December 1998 � folio 881.

- Annex III. List of importers in Argentina and third countries of the goods under investigation.

- Annex IV. Information on the producer/exporter market.

- Annex V. Summary of producer/exporter sales.

- Annex VI. Summary of producer/exporter sales.

- Annex VII. Actual exports to Argentina (1997 and 1998).

- Annex VIII. Sales in the Italian domestic market.

- Annex IX. Exports to third countries.

- Annex X. Cost structure of the goods under investigation in the Italian domestic market.

- Annex XI. Cost structure of the exported goods.

3. Third Parties: Japan

4.948 Japan did not address the EC�s claim under Article 2.4 of the AD Agreement either in its written submission nor in its oral statement.

4. Third Parties: Turkey

4.949 Turkey did not address the EC�s claim under Article 2.4 of the AD Agreement either in its written submission nor in its oral statement.

5. 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

4.950 In its written submission, the United States made the following arguments relating to the EC�s claim under Article 2.4 of the AD Agreement.

4.951 The EC submits that Argentina violated Article 2.4 of the AD Agreement by not making a fair comparison between the export price and normal value because Argentina did not make �due allowance� for certain differences in physical characteristics between the models of the subject merchandise exported to Argentina and those sold in Italy. Argentina replies that it made a reasonable adjustment for differences in physical characteristics which is entitled to deference under Article 17.6(i).

4.952 Article 2.1 and 2.2 of the AD Agreement establish that the essence of the determination of dumping is a comparison of export sales with sales of the like product in the home market or third country. Article 2.6, in turn, defines �like product� 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, one which �has characteristics closely resembling those of the product under consideration.� Finally, Article 2.4 lists differences in physical characteristics as differences for which adjustment may be warranted.

4.953 The United States submits that determining whether the obligation in Article 2.4 has been met is very fact-sensitive. For example, in this case, the United States does not know which differences in physical characteristics of ceramic floor tiles are sufficiently important that adjustments would need to be made. Therefore, the United States cannot comment on whether Argentina made reasonable adjustments. Instead, the United States urges the Panel, in reviewing such a fact-intensive issue, to pay particular attention to the mandate of Article 17.6(i): if the establishment of the facts is proper, and their evaluation unbiased and objective, the Panel should not overturn that evaluation even if the Panel would have reached a different conclusion (see, Panel Report, Mexico � Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States, WT/DS132/R, adopted 24 February 2000, at para 7.94).

4.954 The United States did not address in its oral statement the EC�s claim relating to Article 2.4 of the AD Agreement.

D. 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

4.955 In its first written submission, the EC made the following arguments in support of its claim under Article 6.9 of the AD Agreement.

4.956 According to the EC, the DCD did not inform the exporters of the �essential� facts concerning the existence of dumping which would form the basis for the decision whether to apply definitive measures. As a result, the exporters were prevented from defending adequately their interests. By not disclosing those �essential facts� to the exporters before the imposition of the definitive anti-dumping measures, the DCD violated Article 6.9 of the AD Agreement.

4.957 The EC presented first a number of facts relevant for its legal arguments.

4.958 By letter dated 28 August 1999, the DCD informed the exporters that the �etapa probatoria� of the investigation had been concluded and invited them to examine the public file and, should they consider it necessary, to submit their final allegations (�alegato final�) no later than 10 September.

4.959 On 3 September 1999, representatives of the exporters inspected the public file. Unlike the Final Injury Determination, the Final Dumping Determination was not available in the public file. Nor did the public file contain any other document prepared by the DCD which identified the �essential facts� that would form the basis of the Final Dumping Determination.

4.960 On 6 September 1999, the exporters addressed a letter to the DCD in which they requested the DCD to disclose the essential facts under consideration which would form the basis for the DCD�s final determination of dumping. The request invoked expressly Article 6.9 of the AD Agreement.

4.961 By letter dated 9 September 1999, the DCD informed the exporters that, as far as the dumping determination was concerned, the Argentinean authorities considered that the disclosure requirements imposed by Article 6.9 were fully complied with by granting to the interested parties access to the public file.

4.962 Specifically, the DCD attempted to justify its refusal to disclose the �essential facts� concerning dumping as follows:

� el procedimiento habitual implementado por la SUBSECRETARIA DE COMERCIO EXTERIOR en lo referente at tratamiento de este aspecto del Acuerdo Relativo a la aplicaci�n del Articulo VI del Acuerdo General sobre Aranceles Aduaneros y Comercio de 1994 en su art�culo 6.9, recogido en la legislaci�n argentina por la Ley No. 24.425, queda absolutamente cumplimentado por parte de la Autoridad de Aplicaci�n al momento que la DIRECCION DE COMPETENCIA DESLEAL de la SUBSECRETARIA DE COMERCIO EXTERIOR ha comunicado for medio fehaciente a todas las partes intervienientes en el procedimiento el cierre de la etapa probatoria, conjuntamente con la invitaci�n a tomar vista de todo lo actuado en el expediente en cuesti�n a fin de informarse de todos los hechos esenciales producidos a esa fecha y presentar en base a toda la informaci�n recabada en ese momento y, si lo desean, su correspondiente alegato.

4.963 The EC presented next its legal arguments relating to its claim under Article 2.4 of the AD Agreement.

4.964 The EC recalled that Article 6.9 of the AD Agreement provides that:

The authorities shall, before a final determination 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.

4.965 Article 6.9 imposes upon the investigating authorities a duty �to inform� the interested parties. The ordinary meaning of that term (�to give knowledge of something�, �to tell�, �to acquaint with�, Webster�s New World Dictionary, Third College Edition) demands a positive action from the investigating authorities, which goes beyond merely granting access to the file.

4.966 The public file of an anti-dumping investigation consists essentially of questionnaire responses and allegations submitted by the different interested parties, which are often contradictory. Thus, the mere examination of the public file does not, as such, allow the interested parties to identify the �essential facts� on the basis of which the authorities intend to impose definitive measures. Indeed, it is precisely for that reason that Article 6.9 requires the investigating authorities to indicate to the interested parties which, of all the facts contained in the file, are the �essential facts� that will form the basis for their decision, so that the interested parties can defend their interests adequately.

4.967 If, as contended by the DCD, the disclosure requirements imposed by Article 6.9 could be fulfilled simply by granting access to the file, that provision would become redundant, since the requirement to provide access to the file is already stipulated in very comprehensive terms in Article 6.4, which provides that

The authorities shall whenever practicable provide timely opportunities for all the 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.

4.968 On Argentina�s interpretation, Article 6.9 would add nothing to the requirements already imposed by Article 6.4. Argentina�s reading of Article 6.9, therefore, must be rejected in accordance with the basic principle of interpretation that requires to give effective meaning to all the terms of a treaty (�An interpreter is not free to adopt a reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy or inutility�, Appellate Body Report, United States � Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996. See also the Appellate Body Report, Japan � Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, at page 12; and Appellate Body Report, US � Restrictions on Imports of Cotton and Man Made Fibre Underwear, WT/DS24/AB/R, adopted on 25 February 1997, at page 16).

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

4.969 In its first oral statement, the EC made the following arguments in support of its claim under Article 6.9 of the AD Agreement.

4.970 There is no disagreement between the parties with respect to the relevant facts. The only issue before the Panel is one of legal interpretation, namely whether the investigating authorities can fulfil the obligation imposed by Article 6.9 simply by giving access to the file to the interested parties.

4.971 This issue has been settled by the Panel on Guatemala � Cement II, which rejected in rather categorical terms the position maintained by Argentina in this case (Panel Report, Guatemala � Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000, at para. 8.22). In its submission, Argentina seeks to distinguish the two cases by arguing that the Guatemalan authorities offered to provide a copy of the public file, while the DCD allowed the exporters access to the file. With respect, the EC fails to see the relevance of this distinction.

4.972 Argentina also argues that, at any rate, the violation of Article 6.9 would be a �harmless error�. As mentioned before, the EC considers that this is not a valid defence under the WTO Agreement.

4.973 The EC is concerned by Argentina�s extraordinary assertion that a violation of Article 6.9 is �by its own nature� a harmless error, because �it lacks the necessary importance to vary the conclusions of the investigating authority� (the original Spanish text states: �un error que, por su propia naturaleza, carece de la entidad sufficiente como para variar las conclusiones de la Autoridad de Aplicaci�n�. This suggests that, not only in this case but also as a matter of general practice, the DCD regards the disclosure of essential facts as an empty formality and pays no attention to the comments submitted by interested parties. The EC believes that, quite to the contrary, the disclosure provided in Article 6.9 constitutes an essential procedural safeguard, the omission of which vitiates necessarily the final determination.

(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

4.974 The EC replied to the first of questions by the Panel relating to the EC�s claim under Article 6.9 of the AD Agreement as follows.

4.975 The Panel asked the parties what was, in their view, the object and purpose of the requirement of Article 6.9 AD Agreement to disclose �the essential facts under consideration�.

4.976 The EC replied that the essential purpose of Article 6.9 was to allow the parties to defend adequately their interests.

4.977 If the purpose of Article 6.9 was to enable parties better to defend their interests, the Panel asked the parties whether this interpretation suggested that a Party claiming a violation of Article 6.9 also should present information to the Panel on how its exporters were impeded in their defence.

4.978 The EC replied to this question in the negative. The wording of Article 6.9 was unqualified. It required the investigating authority to make always disclosure of the �essential facts�. This reflected the assumption that the omission of this essential procedural safeguard will necessarily prejudice the rights of defence of interested parties.

4.979 According to the EC, the violation of the obligation imposed by Article 6.9, like the violation of any other obligation imposed by the WTO Agreement, is presumed, in accordance with Article 2.3 of the DSU, to cause nullification or impairment. It is for Argentina to rebut that presumption.

4.980 The Panel recalled that, in paragraph 79 of its first written submission, Argentina distinguished the DCD�s practice from that of the Guatemalan authority which the Panel in the Guatemala � Cement (II) case found to be inconsistent with Article 6.9 AD Agreement. Argentina asserted that �it should be stressed that although �dar copia� (�providing a copy�) was not sufficient to comply with the Article 6.9 obligations, the scope of the expression �dar vista� (�give sight�) is different, since contrary to the expression �dar copia�, it implies notifying the interested parties of the record of the proceedings�. The Panel asked the parties to comment on the importance of this difference, if any.

4.981 The EC replied that it failed to see the relevance of the distinction drawn by Argentina. If anything, the attitude of the Guatemalan authorities seemed to be more advantageous to the exporters, since by providing the exporters with copies of the file, instead of simply allowing them to inspect it in situ, they gave the exporters the possibility to study the file more carefully

4.982 The Panel asked the parties what, if any, were the essential facts under consideration that the exporters were not informed of.

4.983 The EC replied that, as a minimum, the DCD should have disclosed which �facts available� would be relied upon for establishing the normal value and the export price.

4.984 The Panel asked the parties whether, in their view, the fact that the information from the exporters was disregarded for the calculation of normal value and export price was an essential fact of which the exporters should have been informed under Article 6.9 AD Agreement.

4.985 The EC replied that this question in the affirmative and stated that this was without prejudice to the specific requirements imposed by paragraph 6 of Annex II.

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

4.986 In its second written submission, the EC made the following arguments in support of its claim under Article 6.9 of the AD Agreement.

4.987 There is no disagreement between the parties with respect to the relevant facts underlying the EC�s claim under Article 6.9. The only issue before the Panel is one of legal interpretation, namely whether the investigating authorities can fulfil the obligation imposed by Article 6.9 simply by giving access to the file to the interested parties.

4.988 This issue has been settled by the panel on Guatemala � Cement (II), which rejected in categorical terms the position maintained by Argentina in this case (see Panel Report, Guatemala � Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000, at para. 8.22). In its first written submission, Argentina seeks to distinguish the two cases by arguing that the Guatemalan authorities offered to provide a copy of the public file, while the DCD allowed the exporters access to the file. The EC fails to see the relevance of this distinction.

4.989 The EC agrees with Argentina, and with the United States, that Article 6.9 does not prescribe any particular method of disclosure. Thus, for instance, the investigating authority may choose to make the disclosure at a �disclosure conference�, as suggested by Japan in its third party submission, or in a written document sent to the parties (the usual practice in the EC). This does not mean, however, that Article 6.9 leaves complete discretion to the investigating authority for choosing the method of disclosure. For the reasons explained by the Panel in Guatemala � Cement (II), merely granting access to the file is per se an inapt method to achieve the result mandated by Article 6.9 and, therefore, incompatible with that provision.

Continuation: Section 4.990

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