6.62 At the time of the preliminary determination, no supporting documentation (e.g. invoices, orders, price lists) had been submitted by the exporters. After the preliminary determination the DCD sent a letter to the exporting firms in the context of the above discussed need for additional public information. This letter of 30 April 1999⁶⁹ also mentions the question of supporting documents. It states that: �We therefore request the cooperation of the firm you represent, since it is of the utmost importance for the analysis being conducted by the DCD based on the inclusion of fresh evidence or the adaptation of the information already in the record in order to ensure that the implementing authority has information that enables it to reach a public conclusion on the matter at issue.�⁷⁰

6.63 Argentina refers to two other letters of 22 June 1999⁷¹ and 3 August 1999⁷² which the DCD sent to the exporters with a request to declassify certain information in support of its argument that on several occasions throughout the investigation the DCD requested to be provided with additional supporting documents. We find however that these two later letters do not in any way refer to the need for supporting documents at all. They are requests for declassification.

6.64 The EC states that during the 11 May 1999 meeting with the case-handlers, the exporters were for the first time informed that the DCD was not going to conduct an on-the-spot verification. At that meeting, the EC asserts, the exporters or at least the two major exporters, Casalgrande and Bismantova, were requested to provide copies of the invoices covering an important number of sales.⁷³ The EC argues that, in response to this request, the exporters concerned submitted copies of invoices covering approximately 50 per cent of the sales in Italy and to Argentina and third countries.⁷⁴ Argentina, however, submits that the DCD, in its final determination, found that the supporting documentation provided by the four exporting companies with regard to the information supplied concerning domestic sales of the product concerned only covered about 1.92 per cent of the total volume of domestic sales made by these four sampled exporters. We requested further clarification from Argentina on how the DCD calculated this figure in light of the statement of the exporters that they were submitting a large number of sales invoices. Argentina argued that for reasons relating to the confidentiality of the information it was unable to provide the numerical calculations made.⁷⁵ After the submission of the invoices by the two largest Italian exporters, the DCD did not make any further request for additional supporting documentation.

6.65 We note that the DCD in its Final Determination stated that:

"The sample documentation relating to sales on the Italian domestic market supplied by all of the manufacturing export companies concerned in the case � and as affirmed at the time of their participation in the proceedings by the National Association of Italian Ceramic Tile and Refractories Manufacturers (Assopiastrelle), of which these firms are members, they are major representatives of the Italian porcellanato production market � covers no more than approximately 1.92 per cent of the physical volume (m2) and 1.35 per cent of the total estimated value (Italian lire) of sales in the domestic market according to the information duly supplied".

This statement of fact in the Final Determination forms the basis for Argentina�s argument that the DCD was justified to resort to the facts available under Article 6.8. We note that the DCD did not draw any conclusions from this factual consideration concerning the representativeness of the normal value information submitted by the exporters.⁷⁶

6.66 In light of the ambiguity of the questionnaire regarding documentary evidence and given that the verification methodology to be used was not clearly indicated, some precision by the DCD as to what supporting documentation was expected from the exporters was necessary. We are of the view that the very general references to the need to provide supporting documentation in the introductory section of the questionnaire did not meet this requirement. Neither do we consider the one general reference in the letter of 30 April 1999 to the need for new probative elements expressed in the context of a request to declassify certain information or provide more detailed public summaries thereof to be a sufficient notice to the exporters to provide documentary evidence. Therefore, and especially in light of the complex nature of the kind of information that might be needed to demonstrate the accuracy of certain information, we do not consider that any clear request for supporting documentation was made to the exporters. We further do not believe that, independent of any clear request, an interested party is required to provide any particular number of documents to support the information supplied. At the meeting of 11 May 1999, the case-handlers requested at least some exporters to provide certain supporting documentation. The exporters concerned supplied the requested documentation and were never informed by the DCD that the documentation provided was insufficient or that their understanding of the DCD�s request was incorrect. We therefore are unable to accept Argentina�s argument that the exporters significantly impeded the investigation or refused access to necessary information by not providing more supporting documentation. We find that the DCD was not justified in disregarding in large part the information supplied by the exporters for this reason.

6.67 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. In this case, the exporters were never informed that in the absence of a certain number of supporting documents their information was going to be rejected, much less were they provided an opportunity to offer further explanations. Nor were the reasons for the rejection of such evidence or information given in any published determinations. We therefore find that the DCD also acted inconsistently with paragraph 6 of Annex II of the AD Agreement.

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

6.68 Argentina argues that certain exporters provided information in Italian lire and not in US$ as requested by the questionnaire. Argentina further submits that three of the four exporters⁷⁷ failed to provide a Spanish translation of their balance sheets while the exporters were clearly informed both in the general instructions of the questionnaire and in the follow-up letter of 30 April 1999 that all their information needed to be translated into Spanish in order for it to be taken into consideration. Argentina submits that the unjustified refusals to provide the information in US$ and properly translated into Spanish significantly impeded the investigation. Finally, Argentina argues that two exporters, Caesar and Marazzi, refused to provide the requested information with regard to exports to third countries (Annex IX of the questionnaire), and that Marazzi also failed to provide any information with regard to the cost structure for the exported goods (Annex XI). Argentina submits that these firms thus refused to provide access to necessary information.

6.69 The EC argues that the exporters complied with all the formal requirements of the questionnaire. The EC acknowledges that certain individual exporters did not provide a translation of their balance sheets, but argues that this constituted a minor omission which could not have justified disregarding all of the exporters� information.

6.70 The facts on the record show that in fact only one exporting company, Bismantova, provided certain information in one annex of the questionnaire reply in Italian lire rather than in US$. This exporting company moreover provided the relevant exchange rates together with the information. The fact that this company did not provide the information directly in US$ as required, according to the questionnaire�s instructions, in our view, does not amount to significantly impeding the investigation, nor did it constitute in this case a failure to provide necessary information.

6.71 We further consider that in general it is important that translations be provided whenever requested. However, the facts of this case indicate that what was not translated were certain lines of the balance sheets of three of the four exporting companies. We do not believe that this absence of translation of a balance sheet significantly impeded the investigation. We note that the translation which was provided by one of the exporting companies of its balance sheet was accepted while it contained only a minor translation from Italian into Spanish of two terms of the balance sheet.⁷⁸ We do not believe that the DCD was justified in disregarding the exporters� information because of this minor omission on the part of the exporters to translate certain parts of the balance sheets, as this did not significantly impede the investigation.⁷⁹

6.72 With regard to the two exporters which did not provide information under certain of the questionnaire�s annexes, we note that the questionnaire explicitly allowed the exporters not to provide such information if there existed sufficient domestic sales made in the ordinary course of trade. The two exporting firms concerned, Caesar and Marazzi, expressly relied on this possibility.⁸⁰ It appears that Marazzi did not refuse to provide information under Annex XI either (cost of production for the subject product when exported), but rather it replied that the costs for domestically sold and exported products did not differ, except for differences in selling expenses.⁸¹ Based on the facts of this case, we find that an unbiased and objective evaluation of these facts would have led the authority to the conclusion that these omissions do not amount to a refusal to provide necessary information, nor that the exporters concerned can be considered to have significantly impeded the investigation.⁸²

6.73 We therefore find that the DCD was not justified in disregarding the exporters� information under Article 6.8 of the AD Agreement for reasons relating to the failure to comply with certain formal requirements.

6.74 We further recall our conclusion 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 would be rejected for having failed to comply with the formal requirements of the questionnaire, much less provided an opportunity to provide further explanations. Nor were the reasons for the rejection of such evidence or information given in any published determinations. We therefore find that the DCD also acted inconsistently with paragraph 6 of Annex II of the AD Agreement.

(d) Late submission of the information

6.75 Argentina argues that the exporters failed to provide the requested information within a reasonable period. Argentina asserts that, due to the many requests for extension of deadlines by the exporters, information which originally was supposed to be given by 30 November 1998 was submitted as late as 10 August 1999.⁸³ Argentina submits that the late submission of information towards the end of the investigation constituted a failure to provide the information within a reasonable period which significantly impeded the investigation and entitled the DCD to resort to facts available under Article 6.8 of the AD Agreement.

6.76 The EC submits that the exporters supplied the information in a timely manner. According to the EC, additional information was submitted late into the investigation because of the repeated requests for additional public information from the DCD. The EC stresses that in fact no new factual data was submitted, but rather confidential information provided at the time of the questionnaire response was declassified and supplied to the DCD together with supporting documentary evidence that was requested.

6.77 We find that, according to the case record, the exporters requested an extension of the deadline for the submission of information on two occasions only. Both times the authority granted the request. An extension of the deadline for the filing of the questionnaire reply was requested from 30 November 1998 to 9 December 1998. This request was granted and the replies were submitted within the deadline during the morning of 10 December 1998.⁸⁴ On 30 April 1999, the DCD sent a letter to the exporters requesting additional public information to be provided within 15 days. The exporters requested an extension of the deadline on 14 May 1999. The request was granted and the information was submitted before the new deadline of 7 June 1999. Additional requests for declassification of the information made on 22 June and 3 August were almost immediately complied with.

6.78 In sum, all of the information was submitted in a timely manner. Additional requests for information implied that additional information, consisting of non-confidential summaries as well as supporting documentation, would of course be submitted long after the deadline for the submission of the questionnaire replies. In these circumstances, the exporters are not responsible for these additional requests for information. Therefore, the facts do not support Argentina�s argument that the exporters were uncooperative and failed to submit the information within a reasonable period. We therefore find that the DCD was not justified in disregarding the exporters� information under Article 6.8 on this basis.

6.79 We further recall our conclusion 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 would be rejected for having failed to provide the information within a reasonable period, much less provided an opportunity to provide further explanations. Nor were the reasons for the rejection of such evidence or information given in any published determinations. We therefore find that the DCD also acted inconsistently with paragraph 6 of Annex II of the AD Agreement.

3. Conclusion

6.80 For the foregoing reasons, we find that the DCD acted inconsistently with Article 6.8 of the AD Agreement when it disregarded completely the exporters� information concerning export price and disregarded in large part the exporters� normal value information by mixing the primary source exporters� information with information from secondary sources such as the petitioner, importers and official statistics. We further find that the DCD acted inconsistently with Article 6.8 read in conjunction with paragraph 6 of Annex II, in that the DCD (i) did not inform the exporters why certain information supplied by them was not accepted (ii) did not provide the exporters an opportunity to provide further explanations within a reasonable period; and (iii) did not give, in any published determinations, the reasons for the rejection of evidence or information.

6.81 We are conscious that our finding that the DCD incorrectly disregarded the exporter�s information and resorted to facts available in a manner inconsistent with Article 6.8 of the AD Agreement casts doubt on the entire final determination of dumping. In this respect, we recall the statements of the Appellate Body on �judicial economy� in the dispute on United States � Measures Affecting Imports of Woven Wool Shirts and Blouses from India (�United States � Shirts and Blouses�) that �A panel need only address those claims which must be addressed in order to resolve the matter in issue in the dispute.� ⁸⁵ Nevertheless, as the Appellate Body stated in a subsequent dispute on Australia � Measures Affecting the Importation of Salmon, �[T]o provide only a partial resolution of the matter at issue would be false judicial economy. 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�.⁸⁶ Mindful of the Appellate Body�s comments in this respect, we will continue with our analysis of the other claims made before us �because it could prove of utility depending on any appeal�⁸⁷ and in order �to enable the DSB to make sufficiently precise recommendations and rulings so as to allow for prompt compliance with those recommendations and rulings�⁸⁸ .

E. CLAIM 2: ARTICLE 6.10: REQUIREMENT TO CALCULATE INDIVIDUAL MARGINS OF DUMPING FOR ALL EXPORTERS INCLUDED IN THE SAMPLE

1. Arguments of the parties

6.82 The EC submits that the DCD did not determine an individual margin of dumping for each of the four exporters included in the sample, as required by Article 6.10 of the AD Agreement, but rather calculated dumping margins for each of the three size categories of porcellanato and imposed the same duty rate on all imports irrespective of the exporter concerned. The EC argues that Article 6.10 of the AD Agreement requires that as a rule an individual margin be established for each exporter or, in the case this is not practicable because of the large number of exporters for example, an individual margin is to be established for each exporter included in the sample. The EC also points to Article 9.4 in support of its argument that an individual margin of dumping should have been established for each of the four Italian exporters that formed part of the sample.⁸⁹

6.83 Argentina argues that the information provided by the four exporters included in the sample was not sufficient to allow an individual dumping margin to be established for each exporter. Argentina submits that the EC wrongly presupposes that it was possible to determine an individual margin for all four exporters included in the sample. Argentina recalls that the exporters themselves through their representative organization, Assopiastrelle, requested that the investigation be conducted on the basis of a sample to facilitate the task of the authority. However, Argentina submits, it proved impossible for the DCD to determine an individual dumping margin for each of the four exporters. According to Argentina, two producers, Caesar and Marazzi, did not provide price information for tiles in the size categories 30 x 30 cm and 20 x 20 cm. Argentina alleges that one exporter, Marazzi, did not even submit information with regard to the third size category (40 x 40 cm) either.⁹⁰ A third producer, Bismantova, reported that 56 per cent of its domestic sales for tiles in the category 30 x 30 cm and up to 93 per cent of the domestic sales in the 40 x 40 cm category were made to a related company, Rondine.

6.84 Argentina submits that the use of a sample in this case was justified in light of the large number of exporters. However, Argentina argues, the sample which was proposed by the exporters� association, Assopiastrelle, and accepted by the DCD, did not serve its purpose since the information provided by the exporters in the sample was deficient and insufficient. According to Argentina, the requirement to determine an individual dumping margin has to be read in light of the requirement under Article 2 of the AD Agreement to determine a dumping margin for the product subject to the investigation. Argentina submits that the product under investigation was ceramic tiles in all their sizes, and the DCD from the outset calculated a dumping margin for each of the sizes that together formed the subject product (20 x 20 cm, 30 x 30 cm, 40 x 40 cm). According to Argentina, the exporters accepted this segmentation as they replied to the questionnaires without any objections in this respect. However, the exporters included in the sample failed to provide the necessary documents that would allow the DCD to determine such product/size specific margins. Argentina asserts that the DCD was therefore justified in looking for an alternative to supplement the missing necessary information. Argentina argues that in any case, even if the Panel were to find that the DCD acted inconsistently with Article 6.10 by not determining an individual margin of dumping for each exporter, this constituted a harmless error.

6.85 The EC takes issue with Argentina�s argument that it was not practicably possible to determine an individual margin of dumping for each of the four exporters.⁹¹ The EC argues that Argentina cannot, for example, claim that no margin could be established because information was not presented for all size categories if the exporter in question only exports tiles of a certain size (for example, 40 x 40 cm). Finally, the EC submits, it is not because a number of sales are made to related parties that no margin can be established. According to the EC, under the facts of this case, nothing prevented the DCD from calculating an individual margin of dumping for each of the exporters included in the sample, as required by Article 6.10 of the AD Agreement.

2. Analysis by the Panel

6.86 The DCD�s Final Determination establishes a dumping margin for three size categories of porcellanato irrespective of the exporter.⁹² According to the EC, the DCD thus failed to establish a dumping margin for each investigated exporter individually, as is required under Article 6.10 of the AD Agreement.

6.87 Article 6.10 provides as follows:

"The authorities shall, as a rule, determine an individual margin of dumping for each known exporter or producer concerned of the product under investigation. In cases where the number of exporters, producers, importers 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.