4.44 It is not possible to address in an oral statement all the inaccurate, misleading or irrelevant assertions made in Argentina�s submission. The EC will attempt, nevertheless, to respond to the main ones, starting with Argentina�s contention that the exporters� responses were submitted late.

(i) Alleged late submission of the questionnaire responses

4.45 The original deadline for the submission of the responses was 30 November 1998. At the request of the exporters, that deadline was extended until 9 December 1998. The responses were submitted in the early morning of 10 December 1998.

4.46 Article 25 of Decreto 1.759/72, which implements the Ley de Procedimientos Administrativos No. 19.549, allows the filing of documents within the first two working hours of the day following that in which a deadline expires. The questionnaire responses were filed at 10.00 AM of 10 December 1998 (the hour of reception of the responses is stamped on the cover letters). In view of that, the EC understands that, in accordance with Article 25 of Decreto 1759/72, the responses must be deemed submitted within the prescribed deadline. It may be added that the representatives of the exporters had informed in advance the DCD that they would make use of the possibility provided in Article 25 of Decreto 1.759/72. The DCD raised no objections. The Panel should ask Argentina to clarify this issue.

4.47 One could assume for the sake of argument that the responses were in fact submitted one day late. No provision of the AD Agreement allows the investigating authorities to resort to �facts available� simply because the party concerned has missed a deadline. Article 6.8 provides that the investigating authority may resort to �facts available� when necessary information is not submitted �within a reasonable period of time�, while paragraph 3 of Annex II requires that all information which is submitted �in a timely fashion� should be taken into account.

4.48 Interpreting these two provisions, the recent panel report on US � Hot Rolled Steel concluded that:

What is a �reasonable period� will not, in all instances be commensurate with pre-established deadlines ... a rigid adherence to such deadlines does not in all cases suffice as the basis for a conclusion that information was not submitted within a reasonable period and consequently that facts available may be applied.

Particularly, where information is actually submitted in time to be verified, and actually could be verified, � it should generally be accepted, unless to do so would impede the ability of the investigating authority to complete the investigation within the time limits established by the Agreement (Panel Report on United States � Anti-Dumping Measures on Certain Hot Rolled Steel Products from Japan, WT/DS184/R, circulated on 28 February 2001, at paras 7.54 and 7.55 respectively).

4.49 The EC agrees. A mere one-day delay, especially at the very outset of the investigation, is clearly an insufficient ground for resorting to �facts available�.

4.50 Argentina also alleges that one of the exporters (Casalgrande) missed the deadline for submitting some supporting invoices. Nevertheless, the delay was, once again, very short: at most three days. Moreover, the invoices were submitted in time to be verified and used by the DCD, and were indeed used in one of the dumping calculations (the invoices were filed on 10 June 1999, and the Final Dumping Determination was not issued until 23 September 1999).

4.51 More generally, Argentina complains about �repeated request for extensions� of deadlines (�reiteradas solicitudes de pr�rrogas�). In reality, however, the exporters requested only two extensions: one for filing the responses and another for submitting additional non-confidential summaries and supporting invoices. The DCD agreed to both requests and is estopped from complaining now that, as a result, the information was not submitted �within a reasonable period� or that the extensions impeded the investigation.

(ii) Alleged failure to submit adequate non-confidential summaries

4.52 Argentina invokes as an additional ground for rejecting the responses that the exporters failed to provide adequate non-confidential summaries.

4.53 This allegation is, to say the least, ironic. The actual fact is that the DCD�s relentless demands forced the exporters to waive all its confidentiality claims and to disclose to their Argentinean competitors highly sensitive price and cost information.

4.54 The EC recalls briefly the relevant facts.

4.55 Together with the questionnaire responses, the exporters submitted non-confidential summaries. In preparing those summaries, the exporters applied the following principles:

(a) non-sensitive information was left unchanged in the summary;

(b) sensitive information covering several years/months was expressed in indexed form (Annexes IV, V and VI); and

(c) other sensitive information was omitted from the summary (Annexes III, VII, VIII, IX, X and XI).

4.56 The DCD gave no indication to the exporters that the non-confidential summaries were inadequate until the Preliminary Dumping Determination of 24 March 1999, i.e more than three months after the filing of the responses.

4.57 By letters dated 30 April 1999, the DCD requested the exporters to waive their confidentiality requests or to supply more detailed non-confidential summaries. Specifically, these letters referred to Annexes III, VII,VIII, IX, X and XI, i.e. to the Annexes for which no confidential summary had been provided by the exporters.

4.58 Argentina now complains that the non-confidential summaries of Annexes IV, V and VI containing indexed figures were insufficient. But this issue was not raised by the DCD in the Preliminary Dumping Determination, or in the letters of 30 April 1999, or indeed at any stage of the investigation.

4.59 Following the letters of 30 April 1999, the representatives of the exporters met with the case-handlers on 11 May 1999. At that meeting, it was agreed that the exporters would submit non-confidential summaries of Annexes VII (exports to Argentina), VIII (sales in Italy) and IX (export to third countries), in which the names of the customers and the models would be replaced by �virtual codes�.

4.60 On 4 June 1999 the four exporters submitted non-confidential summaries of Annexes VII, VIII and IX in the format agreed at the meeting of 11 May. A �Conversion Table� indicating the correspondences between each code number and the customer and model was submitted to the DCD on a confidential basis.

4.61 One should emphasize that the summaries submitted on 4 June contained the same information as the confidential responses, with the only difference that the name of the model and of the customer had been replaced by a code number. Thus, the summaries allowed the petitioners to calculate by themselves the dumping margins by comparing the actual prices in the domestic and the export market. Clearly, this is more than enough to permit �a reasonable understanding of the substance of the information submitted in confidence� as required by Article 6.5.1.

4.62 In spite of that, on 22 June 1999, the DCD sent a letter to the exporters requesting them to waive the confidentiality of the product code. Within two days, the exporters agreed to that request.

4.63 By way of justification, the letter of 22 June asserted that the disclosure of the product code was necessary so that the DCD �can make a precise comparison� (�� a fin de que la [DCD] pueda realizar una precisa comparaci�n en su informe de determinaci�n final del margen de dumping��). This suggests that the Argentinean authorities thoroughly misunderstood the purpose of the non-confidential summaries. Article 6.5.2 provides that information provided on a non-confidential basis may be disregarded if the party concerned does not provide a confidential summary. But this does not mean that the investigating authorities must base their findings on the information contained in the non-confidential summaries. If so, the submission of information on a confidential basis would be totally redundant. The non-confidential summaries serve exclusively to inform the other interested parties, so that they can defend adequately their interests.

4.64 By letter of 3 August 1999, the DCD requested the exporters to waive the confidentiality of the cost of production data contained in Annexes X and XI. On 10 August, the exporters agreed to that request (rather misleadingly, the exporters� response of 10 August is omitted in Argentina�s first written submission).

4.65 Contrary to Argentina�s contentions, this sequence of events does not evidence lack of co-operation on the part of the exporters, but rather the opposite.

4.66 Although the non-confidential summaries submitted by the exporters on 10 December 1998 might not have been sufficiently detailed, the DCD did not inform the exporters of this until more than three months later. Thus, the DCD acted inconsistently with paragraph 6 of Annex II, which requires that �if evidence or information is not accepted, the supplying party should be informed forthwith of the reasons therefor�� (emphasis added by the EC).

4.67 Once the exporters were advised by the DCD that the non-confidential summaries were not considered adequate, they agreed promptly to each of the successive, and increasingly exacting demands made by the DCD.

4.68 Eventually, the exporters were led by the DCD�s demands to disclose to their Argentinean competitors all the price and cost-of-production data for the investigation period included in their responses, a type of information which is clearly entitled to confidential treatment in accordance with Article 6.5. The EC is not aware of any other investigating authority in the world that requires the exporters to disclose that type of information, except under a narrowly drawn protective order (see footnote 17 of the AD Agreement), a system which is not available in Argentina.

(iii) Alleged failure to provide supporting documents

4.69 Yet another ground invoked by Argentina for rejecting the exporters� responses is their alleged failure to provide �supporting documents�, and more particularly to provide copies of a �sufficient� number of invoices for the sales made in the Italian market.

4.70 Paragraph 1 of Annex II provides that the investigating authorities �should specify in detail the information required� (emphasis added by the EC). The DCD�s questionnaire did not require the exporters to provide copies of a �sufficient� number of invoices. Therefore, Argentina cannot complain now if the exporters did not do so in their questionnaire responses.

4.71 The only reference to invoices is found in Section B of the questionnaire (�Exports to Argentina�), which requests the exporters to provide �probatory documents which help to better understand the transactions� (�documentaci�n probatoria que ayude a una mejor comprensi�n de la operaci�n�), including invoices. This suggests that the DCD was interested in receiving only a few examples of invoices. This would accord with the practice of most investigating authorities, which is to ask for invoices during the subsequent on-the-spot verification, and not as part of the questionnaire response.

4.72 Argentina argues now that one of the introductory paragraphs to the questionnaire stated that the respondents should supply �supporting documents� (�documentaci�n respaldatoria�). But that reference is too vague to meet the requirements of paragraph 1 of Annex II. Moreover, taken literally, it would have required the exporters to provide copies not only of the invoices, but of all the accounting and cost records that are usually examined in the course of an on-the-spot verification.

4.73 Even though, with the sole exception just mentioned, the questionnaire did not require specifically to provide copies of invoices, the exporters did provide, by way of example, some copies of invoices.

4.74 At any rate, the Preliminary Dumping Determination did not mention the alleged failure to provide �supporting documents� as a reason for rejecting the responses. Rather, as mentioned before, the Preliminary Dumping Determination suggested that the responses were rejected because the non-confidential summaries were deemed inadequate.

4.75 Nor did the letters of 12 April 1999 mention specifically the alleged failure to provide �supporting documents�, contrary to what is repeatedly asserted in Argentina�s first written submission. Those letters referred exclusively to alleged deficiencies of the non-confidential summaries.

4.76 It was only at the meeting of 11 May 1999 that the case-handlers requested specifically for the first time that Casalgrande and Bismantova, the two main exporters, provide copies of invoices covering an �important� volume of sales. The case-handlers justified that request on the grounds that they could not conduct on-the-spot verifications in Italy and, therefore, needed to check the responses �from their offices�.

4.77 In response to the request made at the meeting of 11 May, the exporters concerned submitted copies of invoices covering approximately 50 per cent of the sales in Italy and of the exports to Argentina and third countries (together with a translation into Spanish of each invoice!).

4.78 The DCD made no further request for �supporting documents� during the remainder of the investigation. The exporters, therefore, assumed that the DCD was satisfied with the documents submitted.

(iv) Alleged lack of representativeness of the sample of exporters

4.79 Argentina also invokes the lack of representativeness of the sample of exporters as a reason for resorting to �facts available�.

4.80 The EC rejects the contention that the sample was not representative. What matters is whether the exports made by the selected exporters were representative of the exports to Argentina covered by the investigation, and not whether the domestic sales made by the selected exporters were representative of the domestic sales made by all the Italian producers of porcellanato (including those made by the more than 100 producers which did not export to Argentina).

4.81 From that perspective, it is beyond question that the sample was sufficiently representative since the four selected exporters accounted for more than 70 per cent of all the Italian exports to Argentina during 1997.

4.82 Article 6.10 confirms that this is the relevant criterion. It provides that the examination may be limited to a reasonable number of exporters by using statistically valid samples or, as an alternative, to �the largest percentage of the volume of exports from the country in question which can reasonably be investigated�.

4.83 Furthermore, even assuming that the sample were in fact not sufficiently representative, that would still not justify the DCD�s decision to resort to �facts available�. Article 6.10 contains no provision authorising the investigating authorities to resort to �facts available� in such circumstances. The only options available under Article 6.10 would be: (1) to enlarge the sample; (2) to choose a new sample; or (3) to extend the examination to all the exporters.

4.84 Argentina suggests that the alleged lack of representativeness of the sample amounts to a refusal to provide necessary information in the sense of Article 6.8. However, the decision to limit the examination to a sample of exporters was a decision taken by the DCD itself. Argentina cannot fault now the non-selected exporters for failing to provide information that they were not requested to provide.

4.85 Moreover, the DCD did at no point during the investigation inform the exporters or Assopiastrelle that the sample was not considered representative. It was only in the Final Dumping Determination that the DCD made for the first time some vague remarks in that sense. Nevertheless, even at that late stage, the DCD refrained from drawing any conclusions. Thus, once again, this is but an ex post justification.

4.86 Argentina further suggests that the lack of representativeness of the sample could be established by the DCD only at a late stage of the investigation because of the delay in providing �supporting documents�. This is not true. As explained before, the �supporting documents� in question were supplied as soon as they were requested by the DCD. Moreover, nothing prevented the DCD from checking the representativeness of the sample on the basis of the confidential information contained in the questionnaire responses filed on 10 December 1998.

4.87 Furthermore, given Argentina�s view that the percentage of domestic sales, and not the percentage of exports, is the decisive criterion, the DCD could, and indeed should have requested that information from Assopiastrelle before taking any decision on the sampling.

(v) Other alleged deficiencies

4.88 Argentina also alleges in passing a series of miscellaneous deficiencies in the questionnaire responses. The EC submits that some of them were not such, while the others were minor omissions which did not warrant the DCD�s decision to reject the responses.

4.89 First, Argentina alleges that Caesar and Marazzi did not provide information with respect to their export sales to third countries. This is true. But Argentina misleadingly omits to mention that the questionnaire allowed the exporters not to provide such information if the domestic sales were sufficiently representative. Caesar and Marazzi relied expressly upon that possibility.

4.90 Second, Argentina contends that Marazzi did not provide cost-of-production data for the models exported to Argentina. However, Marazzi explained in its response that the models exported to Argentina were the same as those sold in Italy and had the same cost of production, except for the differences in selling expenses.

4.91 Third, Argentina complains that three of the exporters did not provide a Spanish translation of their balance sheet. Again, this is correct but cannot justify the rejection of the responses. The requested translation cannot be considered as �necessary information� in the sense of Article 6.8, given that the essential content of the document in question were figures, that Italian and Spanish are closely related and that, in particular, the accounting terminology is very similar in both languages. Moreover Italian is widely understood in Argentina.

4.92 It is worth noting that the DCD accepted as good the �translation� provided by Marazzi. Yet Marazzi limited itself to translate one word in the front page, namely the word �esercicio�, which Marazzi rendered somewhat inaccurately as �a�o�, the precise translation being �ejercicio�. This confirms that the requested translations were by no means necessary.

4.93 Finally, Argentina complains that Bismantova provided the information requested in Annex VI (a summary table of the sales made during the last four years in different markets) in Italian Lire instead of in US$. With respect, it is simply ridiculous to pretend that this minor omission impeded significantly the investigation.

(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

4.94 The EC replied to the first set of questions by the Panel relating to the EC�s claim under Article 6.8 of the AD Agreement as follows.

4.95 The Panel asked the parties whether, in their view, the DCD rejected the information from the exporters for one of the reasons set out in Article 6.8 AD Agreement. The Panel further asked whether reference was made in the record to one of these reasons and, if so, where. The Panel also asked under what circumstances an investigating authority may resort to secondary source information outside the specific circumstances of Article 6.8 AD Agreement.

4.96 To this question, the EC provided the following reply.

4.97 As explained in the EC�s first written submission, during the consultations Argentina did not argue that the information submitted by the exporters had been rejected on any of the grounds set out in Article 6.8. Instead, Argentina argued that the exporters� information had been �considered� on an �equal footing� with the information supplied by the petitioner. This suggests that the DCD based its final determination on the erroneous premise that the investigating authority is free to use secondary sources of information, such as import statistics or data supplied by the petitioner, even if the circumstances specified in Article 6.8 are not present.

4.98 As discussed in the EC�s first written submission, that position is untenable under the AD Agreement. Predictably, in its first written submission Argentina invokes a misunderstanding on the part of the EC and argues that the DCD did in fact reject the exporters� information for the reasons set out in Article 6.8.

4.99 Argentina�s new position is not supported by the record of the investigation. The Final Dumping Determination does not mention anywhere that the exporters� information had to be rejected for any of the reasons set out in Article 6.8. Moreover, the DCD did at no point during the investigation inform the exporters that their responses had been rejected for the reasons set out in Article 6.8, contrary to the requirement imposed by paragraph 6 of Annex II.

4.100 Argentina�s new position also is contradicted by the fact that the DCD did use the exporters� information in one of the two dumping margin calculations contained in the Final Dumping Determination, albeit arbitrarily averaged with secondary source information. Obviously, this would not have been possible if the exporters had failed to provide necessary information, or if such information had been deemed unreliable by the DCD.

4.101 The Panel recalled that Argentina�s first written submission alleged that the exporters� questionnaire responses were deficient in many ways. In particular, that such questionnaire responses were submitted late, were not fully translated, lacked public summaries of confidential information sufficiently detailed, lacked some currency conversions, failed to report data on exports to third countries and costs of the product exported, and lacked supporting documentary evidence. The Panel asked Argentina which of these deficiencies, if any, were relied upon by the DCD for its final determination. The Panel further asked if Argentina could provide the Panel with the relevant references in either the report accompanying the final determination or in the administrative record.

4.102 To this question, the EC provided the following reply.

4.103 The DCD�s Final Dumping Determination does not say anywhere that the exporters� information had to be rejected for any of the reasons stated in Article 6.8. Nor did the DCD inform the exporters that their responses had been rejected, as required by paragraph 6 of Annex II.

4.104 The following is a summary of the references made in the record to the grounds invoked now by Argentina in order to reject the responses.

(i) Late submission of the questionnaire responses and of supporting evidence

4.105 The Preliminary Dumping Determination and the Final Dumping Determination record the dates on which the exporters� submissions were made. But they make no suggestion to the effect that information was submitted late or that it was rejected for that reason.

(ii) Non-confidential summaries

4.106 The Preliminary Dumping Determination suggests that the information on normal value provided by the exporters was disregarded for reasons related to the confidentiality requests, but such reasons are not specified. No similar suggestion is found in the export price section of the Preliminary Dumping Determination.

4.107 The DCD�s letters of 30 April 1999 requested the exporters to waive their confidentiality requests or supply more detailed non-confidential summaries of Annexes III, VII, VIII, IX, X, and XI. Those letters make no reference to the non-confidential summaries of Annexes IV, V and VI.

4.108 The letter of 22 June 1999 requested the exporters to disclose the �product code� included in the non-confidential summaries of Annexes VII and VIII submitted on 4 June 1999.

4.109 The letter of 3 August 1999 requested the exporters to waive the confidentiality requests or supply more detailed non-confidential summaries of Annexes X and XI.

Continuation: Section 4.110

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