6.38 We are aware that, for the purpose of transparency, Article 6.5.1 obliges an authority to require the parties providing confidential information to furnish non-confidential summaries which shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. We consider that this is an important element of the AD Agreement which reflects the balance struck by the Agreement between the need to protect the confidentiality of certain information, on the one hand, and the need to ensure that all parties have a full opportunity to defend their interests, on the other. However, we see nothing in Article 6.5.1, nor elsewhere in Article 6.5, that authorizes a Member to disregard confidential information solely on the basis that the non-confidential summary of that information contains insufficient detail to permit authorities to calculate normal value, export price and the margin of dumping.⁵⁵

6.39 Consistent with our view that authorities may rely on confidential information in making their determination, the purpose of the non-confidential summaries provided for in Article 6.5.1 is to inform the interested parties so as to enable them to defend their interests. We do not consider that the purpose of the non-confidential summaries is to enable the authorities to arrive at public conclusions, as Argentina contends.⁵⁶ Thus, an authority would not in our view be justified in rejecting the exporters� responses simply because the information in the non-confidential summaries was not sufficient to allow the calculation of normal value, export price, and the margin of dumping.

6.40 Turning now to the facts of this case, we consider that, even if the DCD had been entitled under Article 6.8 to resort to the facts available in a case where the exporters failed to declassify confidential information concerning normal value and export price or to provide adequate non-confidential summaries thereof, we find no factual basis on the record for Argentina�s assertion before us that the exporters did not respond fully to the DCD�s request for the declassification of the confidential information and failed to provide adequate non-confidential summaries thereof.

6.41 The events concerning confidentiality of the information and the requests for non-confidential summaries are summarized in the DCD�s Final Determination.⁵⁷ The DCD states that for most of the information provided in their questionnaire reply the exporters requested confidentiality. In its report, the DCD further explains that on 30 April 1999 the DCD sent letters to the firms in question requesting the exporting firms to consider providing a more detailed non-confidential summary than that already provided in the questionnaire replies, to elaborate on the information supplied, or to remove the requested confidentiality that had been granted by the investigating authority so that the authority would have the information it required to reach a public conclusion to the investigation. More specifically, information on sales in the Italian market (Annex VIII) and the cost structure of the goods in the domestic Italian market (Annex X) was requested. On 4 June 1999, the exporting firms submitted public and confidential information concerning domestic sales of the product concerned with conversion tables that were submitted as confidential information. On 7 June 1999, Bismantova and Casalgrande further submitted as confidential information sales invoices relating to the Italian domestic market. By its letters of 22 June 1999 and 3 August 1999, the DCD requested the exporting firms to reconsider the requested confidentiality of the information concerning product codes and the production costs or else to provide a sufficiently detailed non-confidential summary, so that the authority could issue a precise determination in its final report as to the existence of an unfair trade practice. The DCD�s report acknowledges that the exporting firms agreed by letters of 23 and 24 June that the product code item could be made non-confidential. On 10 August 1999, the exporting firms further agreed to remove the confidentiality of the item concerning cost of production provided that the names of the companies relating to each cost structure were not revealed.

6.42 In light of the contradictory arguments presented by the parties before us, we sought further clarification of this matter. From the parties� replies to our questions, we conclude that the record shows that the exporters requested confidential treatment for most of the information provided in the questionnaire replies. In particular, confidential treatment was requested concerning information of a more general nature concerning the home market of the exporters and their sales performance both in volume and in value terms. This information contained in the following annexes of the questionnaire reply was presented in indexed form in a non-confidential summary submitted together with the confidential questionnaire reply:⁵⁸

- the producers/exporters� home market (Annex IV);

- summary of producers/exporters� sales (physical volume) (Annex V);

- summary of producers/exporters� sales (value) (Annex VI).

6.43 In the course of the investigation, the DCD never suggested that it was dissatisfied with the information presented in indexed form, nor did it suggest that this summary was not sufficiently detailed.

6.44 The exporters also requested that the information concerning normal value, export price and cost of production be given confidential treatment. At the time of the original questionnaire reply on 10 December 1998, the exporters did not provide a meaningful non-confidential summary for the information concerning:

- list of importers (Annex III);

- exports to Argentina (Annex VII);

- sales made in the domestic (Italian) market (Annex VIII);

- exports to third countries (Annex IX);

- cost structure of products sold in the domestic market (Annex X);

- cost structure of products when exported (Annex XI).

6.45 In its preliminary determination of dumping, the DCD expressed the view that the confidentiality of the information was a limiting factor and that it implied a restricted and differential treatment of this information.⁵⁹ By letter of 30 April 1999, the DCD requested that a more detailed non-confidential summary be provided or that the request for confidential treatment with regard to these six annexes (III, VII, VIII, IX, X, XI) be waived. In a follow-up meeting of exporters with the case-handlers on 11 May 1999, it was agreed that more detailed summaries be provided for Annexes VII, VIII and IX.⁶⁰

6.46 On 4 June 1999, the exporters submitted non-confidential summaries of the information of Annexes VII, VIII and IX, in the format agreed upon at the meeting of the exporters with the case-handlers on 11 May 1999, replacing the names of the products with a code and attaching a confidential conversion table in which the codes are explained.⁶¹ On 7 and 10 June 1999, Bismantova and Casalgrande provided confidential copies of invoices of their domestic and export sales, as had been agreed during the meeting of 11 May 1999.

6.47 On 22 June 1999, the DCD sent a second letter to the exporters in which it requested that the product code information be declassified. On 24 June 1999, the exporters agreed to make the product codes public. On 3 August 1999, the DCD made an additional request to declassify or provide a more detailed summary of information on the cost structure of the domestically sold products (Annex X) and of the products when exported to Argentina (Annex XI). Such information was provided on 10 August 1999, as the exporters agreed to remove the confidentiality of the item concerning cost of production, provided that the names of the companies relating to each cost structure were not revealed.

6.48 The non-confidential summaries of Annexes IV, V and VI presented the information in indexed form, permitting a reasonable understanding of the substance of the confidential information. This appears also to have been the opinion of the investigating authority which, in the course of the investigation, never requested a more detailed public summary for these three annexes. The remainder of the confidential information (with regard to normal value and export price information as well as data concerning cost of production, Annexes VII-XI) was declassified by the exporters upon the request of the DCD and the only difference between the public and the confidential information related to the names of customers and the precise identity of the exporter whose cost of production information was being reported. We consider that such a non-confidential �summary� contained all the information the DCD would have needed to calculate normal value, export price and the margin of dumping, and therefore clearly permitted a reasonable understanding by the interested parties of the substance of the confidential information.

6.49 In conclusion, we find that following the preliminary determination the issue of non-confidential summaries was resolved by the positive replies of the exporters to the repeated requests for declassification of the information by the DCD. The facts on the record demonstrate that non-confidential summaries were provided for all the confidential information. Therefore, leaving aside the question of whether the failure to furnish non-confidential summaries which satisfy the requirements of Article 6.5.1 could in any case justify the application of the facts available under Article 6.8 of the AD Agreement, we find that, in this case, the exporters did provide such detailed non-confidential summaries and declassified most if not all of the confidential information concerning normal value and export price. Accordingly, we find that the DCD was not justified in law or in fact in disregarding in large part the information from the exporters for reasons relating to the confidentiality of the information.

6.50 We further recall our conclusion in paragraph 6.21 that Article 6.8 read in conjunction with paragraph 6 of Annex II, requires an investigating authority to inform the party supplying information of the reasons why evidence or information is not accepted, to provide an opportunity to provide further explanations within a reasonable period, and to give, in any published determinations, the reasons for the rejection of evidence or information. We find that the DCD never informed the exporters that their information was going to be rejected for this reason, as required by that provision. As discussed above, the requests for declassification of the information contained in the three letters sent by the DCD were all complied with, and the exporters could therefore legitimately have assumed that their information was not going to be rejected for reasons relating to the confidentiality of the information. Neither were the reasons for the rejection of such evidence or information given in any published determinations, as required by paragraph 6 of Annex II. We therefore find that the DCD also acted inconsistently with paragraph 6 of Annex II of the AD Agreement.

(b) Lack of documentary evidence

6.51 Argentina argues that the exporters failed to provide sufficient supporting documentation, in spite of being explicitly requested to do so on numerous occasions by the DCD both in the questionnaire and in subsequent letters to the exporters. According to Argentina, the exporters failed to meet even the minimum requirement of providing a statistically valid sample of invoices for their domestic sales� information.⁶² Argentina submits that the DCD was allowed to resort to facts available since the required supporting documentation which was necessary to prove the reliability of the information and which was explicitly requested, was not provided by the exporters. In addition, Argentina argues, this refusal to provide the required documentary evidence significantly impeded the investigation.

6.52 The EC contests Argentina�s argument that the exporters failed to provide the requested supporting documentation. The EC asserts that the exporters were not requested to provide any supporting documentation until very late in the investigation. According to the EC, the exporters were informed only towards the end of the investigation that no verification visit was going to take place and that the DCD required certain exporters to supply supporting documentary evidence instead.⁶³ The EC argues that the exporters complied with the request and that therefore the DCD was not justified in resorting to facts available for failure to provide supporting documentation.

6.53 The question before us is whether the DCD was entitled to resort to facts available because of the alleged failure of the exporters to provide sufficient supporting documentation.⁶⁴ We recall our view that, under Article 6.8, resort to the facts available is authorized only where a party refuses access to, or otherwise does not provide, necessary information, or where a party significantly impeded the investigation. Thus, the question before us is whether the DCD acted consistently with Article 6.8 by resorting to facts available on the grounds that the exporters allegedly failed to provide sufficient supporting documentation.

6.54 In considering this question, we first observe that a basic obligation concerning the evidence-gathering process is for the investigating authorities to indicate to the interested parties the information they require for their determination. This obligation is set forth in Article 6.1 of the AD Agreement which states as follows:

"All interested parties in an anti-dumping investigation shall be given notice of the information which the authorities require and ample opportunity to present in writing all evidence which they consider relevant in respect of the investigation in question".

Article 6.1 of the AD Agreement thus requires that interested parties be given notice of the information which the authorities require. In our view, it follows that, independently of the purpose for which the information or documentation is requested, an investigating authority may not fault an interested party for not providing information it was not clearly requested to submit.

6.55 This consideration is particularly relevant to the question of whether an authority is justified in resorting to the use of facts available under Article 6.8 of the AD Agreement. Paragraph 1 of Annex II of the AD Agreement on the �Use of Best Information Available in Terms of Paragraph 8 of Article 6� reiterates the obligation of Article 6.1. It states that:

"1. 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 should 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". (emphasis added).

Thus, the first sentence of paragraph 1 requires the investigating authority to "specify in detail the information required", while the second sentence requires it to inform interested parties that, if information is not supplied within a reasonable time, the authorities may make determinations on the basis of the facts available. In our view, the inclusion, in an Annex relating specifically to the use of best information available under Article 6.8, of a requirement to specify in detail the information required, strongly implies that investigating authorities are not entitled to resort to best information available in a situation where a party does not provide certain information if the authorities failed to specify in detail the information which was required.

6.56 We recall that the documentary evidence in this case appears to have been required in order to verify the information supplied by the exporters in their questionnaire replies since the DCD decided not to conduct any on-the-spot verification in Italy. In the context of this factual situation, we find further confirmation for the view that an investigating authority may not resort to facts available due to failure of a party to provide information that was not clearly requested in Articles 6.6 and 6.7 of the AD Agreement, which relate to the question of verification of information. They provide as follows:

"6.6 Except in circumstances provided for in paragraph 8, the authorities shall during the course of an investigation satisfy themselves as to the accuracy of the information supplied by interested parties upon which their findings are based.

6.7 In order to verify information provided or to obtain further details, the authorities may carry out investigations in the territory of other Members as required, provided they obtain the agreement of the firms concerned and notify the representatives of the government of the Member in question, and unless that Member objects to the investigation. The procedures described in Annex I shall apply to investigations carried out in the territory of other Members. Subject to the requirement to protect confidential information, the authorities shall make the results of any such investigations available, or shall provide disclosure thereof pursuant to paragraph 9, to the firms to which they pertain and may make such results available to the applicants".

6.57 Article 6.6 of the AD Agreement thus places the burden of satisfying oneself of the accuracy of the information on the investigating authority. As a general rule, the exporters are therefore entitled to assume that unless otherwise indicated they are not required to also automatically and in all cases submit evidence to demonstrate the accuracy of the information they are supplying. We note that in this case, all four exporters stated that they were willing to accept any kind of verification visits. The DCD decided however not to conduct such an on-the spot-verification.⁶⁵ We believe that if no on-the-spot verification is going to take place but certain documents are required for verification purposes, the authorities should in a similar manner inform the exporters of the nature of the information for which they require such evidence and of any further documents they require.

6.58 For the foregoing reasons, we conclude that an investigating authority may not disregard information and resort to facts available under Article 6.8 on the grounds that a party has failed to provide sufficient supporting documentation in respect of information provided unless the investigating authority has clearly requested that the party provide such supporting documentation.

6.59 In light of this conclusion, the first question we address is whether the DCD clearly informed the exporters that they were required to submit supporting documentation and the kind of information requested. We examined the requests to provide supporting documentation in the questionnaire on which Argentina bases its argument. We find that these requests are very vague and general in nature and are made in the general introductory part of the questionnaire setting out the goals and objectives of the questionnaire and in the section entitled �General Instructions�.

6.60 In the section on goals and objectives, the questionnaire indicates that �the producer/exporter shall be required to reply to this questionnaire as precisely as possible, attaching supporting documents for its replies, or in case this is not possible, indicating the source of the information�⁶⁶ Similarly, the general instructions of the questionnaire state that: �1. The exporter is required to mention on each of the pages it presents, the case number, and is to reply to all questions in a detailed manner and to give information with regard to the sources used, attaching as a necessary condition to back up the veracity of the source, the corresponding documentation.� A final reference to the need to provide supporting documentation is found in Section B of the questionnaire which relates to export price information. It requires the party supplying the information to provide �that information to be provided that assists the authority in getting a better understanding of the transaction be it through a buy order, sales contracts, commercial invoices, credit notes, �, etc.�⁶⁷

6.61 We note that point 7 of the general instructions section of the questionnaire also provides that all information may be subject to verification by the authority. In this respect, the questionnaire provides that in the case where such verification takes place the exporters will be informed which documentation it will have to put at the disposal of the verification team. The exporters are requested to express their willingness to accept such verification visits. All exporters agreed to such verification visits.⁶⁸

 

Continuation: Section 6.62

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