4.110 The Final Dumping Determination records the above letters and the exporters� replies. It does not mention anywhere that the information submitted by the exporters in response to the DCD�s requests was deemed insufficient or that the exporters� normal value and export price information was rejected because the exporters failed to disclose confidential information or provide adequate non-confidential summaries.

(iii) Supporting evidence

4.111 The Preliminary Dumping Determination did not mention the lack of supporting evidence, and in particular of invoices. Nor was this supposed deficiency mentioned in the letters of 30 April 1999. This issue was raised for the first time by the DCD at the meeting of 11 May 1999.

4.112 The letters of 22 June 1999 and of 3 August 1999 contain no reference to this alleged deficiency.

4.113 The Final Dumping Determination records that Bismantova and Casalgrande submitted the requested invoices on 7 and 11 June 1999, respectively. It makes no suggestion to the effect that the exporters failed to provide sufficient supporting invoices (or any other supporting evidence), or that the normal value and export price information supplied by the exporters was disregarded for that reason.

(iv) Representativeness of the domestic sales

4.114 The supposed lack of representativeness of the domestic sales reported by the exporters was mentioned for the first time in the Final Dumping Determination. Moreover, the DCD did not draw any conclusions from this.

(v) Currency conversions

4.115 The Preliminary Dumping Determination records that the exporter Bismantova completed the tables in Annex VI in Italian lire and provided exchange rates between that currency and the US$, but attaches no consequences to this. This issue was not raised again until Argentina�s first written submission to the Panel.

(vi) Export sales to third countries

4.116 The Preliminary Dumping Determination records that Marazzi and Caesar did not report export sales to third countries in Annex IX, together with the explanations given by both exporters to the effect that such information was not provided in accordance with the instructions contained in the questionnaire, which only required to complete Annex IX in the event that the volume of domestic sales was not sufficiently representative. The Preliminary Dumping Determination attaches no consequences to this. This issue was not raised again by the DCD and is not mentioned in the Final Dumping Determination.

(vii) Cost-of-production data for the exported merchandise

4.117 The Preliminary Dumping Determination records that Marazzi did not report cost of production data for the exported merchandise in Annex XI, together with Marazzi�s explanation that the cost of production of the exported merchandise was the same as that of the merchandise sold in Italy. The Preliminary Dumping Determination attaches no consequences to this. The issue was not raised again by the DCD during the investigation and is not mentioned in the Final Dumping Determination.

(viii) Translation of accounting documents

4.118 The Preliminary Dumping Determination mentions that Bismantova, Casalgrande and Caesar did not provide a Spanish translation of their balance sheet, but attaches no consequences to this. The issue was not raised again by the DCD during the investigation.

4.119 The Panel recalled that Argentina, in paragraph 39 of its first written submission, states that �the submission of information and documentation for which confidential treatment is requested constitutes a limiting factor with respect to the analysis and public conclusions of the implementing authority� (emphasis added by Argentina). The Panel asked Argentina whether, in its opinion, the confidential nature of the information submitted constituted a constraint on the investigating authority�s ability to base its determination on that information. The Panel further asked Argentina to explain in which way it considered that confidentiality limited the DCD�s analysis in this case. The Panel also asked the EC to comment on the above-quoted statement from Argentina.

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

4.121 Argentina�s interpretation is mistaken. Articles 6.5.1 and 6.5.2 of the Anti-Dumping Agreement do not require the investigating authority to base its findings on non-confidential information. Indeed, if so, the submission of confidential information by the parties would be totally redundant.

4.122 Article 6.5.2 provides that the investigating authority may, subject to certain requirements, disregard confidential information. This provision would be unnecessary if the investigating authority had to use always non-confidential information.

4.123 Further confirmation is provided by Articles 12.2.1 and 12.2.2, which stipulate that the notice or the report of the imposition of provisional and definitive measures, respectively, shall pay due regard to the requirement for the protection of confidential information. Again, this would have been unnecessary if the dumping and injury determinations had to be based exclusively on non-confidential information.

4.124 Dumping and injury determinations require necessarily the use of information which is confidential by nature, including information which is not capable of summarization. Argentina�s interpretation would make it impossible for the investigating authority to make an accurate dumping or injury determination without violating its duties under Article 6.5. The present case proves this point. The DCD was able to make a dumping determination (partially) based on non-confidential information supplied by the exporters only because the exporters had been forced previously to relinquish virtually all their confidentiality claims.

4.125 The Panel asked the Parties whether they drew a distinction between the obligation of authorities to protect confidential information from disclosure, on the one hand, and the obligation of authorities to use for their determinations exporter data that meets the requirements of the Agreement.

4.126 The EC replied that the investigating authority must base its determination of dumping on information provided by the exporter, including that for which confidential treatment has been requested. The investigating authority may not disregard the information provided in confidence by the exporter and resort to �facts available� except in the circumstances specified in Article 6.5.2.

4.127 The Panel recalled Argentina�s statement that, according to the DCD, the non-confidential summaries submitted by the exporters were insufficient under Article 6.5.1 AD Agreement, since this provision required that such summaries permit a �reasonable understanding of the substance of the information provided in confidence�. The Panel asked the parties how did they interpret the objective of Article 6.5.1, that is, whose �reasonable understanding� was being addressed � that of the public or that of the investigating authorities?

4.128 The EC replied that the non-confidential summaries provided for in Article 6.5.1 serve exclusively to inform the other interested parties. They constitute a compromise between the conflicting objectives of protecting the confidentiality of the information supplied by each party and of allowing the other parties to defend adequately their interests.

4.129 The Panel asked the parties whether the following summary of relevant facts was correct. The exporters requested confidentiality for most of the information provided in their questionnaire reply. On 30 April 1999, the DCD sent letters to the exporting firms requesting them 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. 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. The DCD�s report acknowledged 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.

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

4.131 The above summary of the facts is generally correct. Nevertheless, some additional clarifications were in order:

(a) The letters of 30 April 1999 did not request the exporters to provide �information on sales in the Italian market (Annex VIII) and the cost structure of the goods in the domestic Italian market (Annex X)�. Those letters mentioned exclusively the supposed deficiencies of the non-confidential summaries. Moreover, the letters addressed to Bismantova and Caesar did not mention Annex X.

(b) The EC recalls that on 11 May 1999 representatives of the exporters held a meeting with the case-handlers, in which the DCD specified its requests.

(c) On 4 June 1999, the four exporters did not submit �public and confidential information concerning domestic sales�, but rather a non-confidential summary of both their domestic and export sales as previously reported in their questionnaire responses. In addition, as indicated correctly in the summary, they submitted in confidence conversion tables, with the product and customer codes.

(d) On 7 and 10 June 1999, Casalgrande and Bismantova submitted not only invoices of domestic sales, but also invoices of export sales to Argentina and to third countries.

(e) The letter of 22 June 1999 requested exclusively the disclosure of the �product code� used in the non-confidential summaries of Annexes VII and VIII submitted on 4 June 1999. The disclosure of the cost of production tables (Annexes X and XI) was requested for the first time in the letter of 3 August 1999.

4.132 The Panel asked the parties to clarify whether, in light of the exporters� agreement to re-classify the information as requested, the concerns the DCD raised with regard to the confidential nature of the information at the time of the preliminary determination (recorded on page 23 of the DCD�s Final Dumping Determination) had been resolved by the time of the final determination. The Panel further asked the parties to indicate which of the exporters� information, if any, was still confidential at the time of the final determination. If certain information had remained as confidential, the Panel also asked the parties to clarify whether non-confidential summaries were provided for this confidential information.

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

4.134 In response to the DCD�s requests, the exporters were forced to waive virtually all their confidentiality requests. Thus, they assumed that all the concerns of the DCD with respect to this issue had already been resolved by the time of the final determination. Indeed, as mentioned above, the Final Dumping Determination does not say anywhere that that the information submitted by the exporters in response to the DCD�s requests was deemed insufficient or that the exporters� normal value and export price information was rejected because the exporters failed to disclose confidential information or provide adequate non-confidential summaries.

4.135 More specifically, at the time of the final determination, the exporters maintained the following confidentiality requests:

(a) Annex III (list of customers): the exporters did not provide a non-confidential summary for this Annex. The EC considers that this information is not capable of summarization (see Panel Report on Guatemala � Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000, at para. 8.211).

(b) Annex IV (information on the exporter�s market situation), Annex V (summary of sales in different markets � quantity) and Annex VI (summary of sales in different markets � value): the exporters provided non-confidential summaries together with their questionnaire responses of 10 December 1998, in which the actual figures had been replaced by indexes. Argentina raised no objections with respect to the non-confidential summaries of these Annexes until its first written submission in these proceedings.

(c) Annex VII (export sales to Argentina), Annex VIII (domestic sales) Annex IX (export sales to other markets): following the DCD�s requests of 30 April 1999 and of 22 June 1999, the exporters maintained their confidentiality requests only with respect to the customer code.

(d) Annexes X and XI (cost of production tables): in response to the DCD�s request of 3 August 1999, the exporters accepted to disclose these Annexes, provided that the name of the exporter was kept confidential.

(e) Invoices: the exporters requested confidential treatment for the invoices submitted on 7 and 10 June 1999. Nevertheless, the contents of these invoices are summarised in the non-confidential summaries provided on 4 June 1999.

4.136 The Panel asked Argentina to explain the relevance of the DCD�s finding that the four exporters included in the sample only represented 1.92 per cent of the total volume of sales in the home market. In particular, did the 1.92 per cent refer to all sales made by Italian producers, including those with no exports to Argentina? If this was the case, the Panel asked the parties whether they were of the view that, as a legal matter, companies selected for an individual determination have to account collectively for a large percentage of all home market sales made.

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

4.138 Article 6.10 allows the investigating authority to limit the examination to (1) a statistically valid sample of exporters; or (2) the largest percentage of the volume of exports from the country in question which can reasonably be investigated. The question posed by the Panel may arise only where the investigating authority resorts to the first method.

4.139 In the present case, it is unclear which of the two methods permitted by Article 6.10 was followed by the DCD, even if both parties have been referring, without too much precision, to a �sample� of exporters. The following comments are, therefore, based on the assumption that the DCD intended to select a �statistically valid sample�.

4.140 The purpose of an anti-dumping investigation is to establish whether the exports under investigation are dumped. The existence of dumping does not require the existence of domestic sales. Therefore, there is no reason why a sample should include a large percentage of domestic sales.

4.141 This interpretation is supported by the second method provided in Article 6.10. If the percentage of domestic sales is irrelevant for the purposes of that method, why should it be considered as decisive when applying the first method?

4.142 At any rate, assuming that the percentage of domestic sales were in fact relevant in assessing whether a sample is statistically valid for the purposes of Article 6.10, Argentina disregards that, as noted by Japan in its third party submission, a sample covering a relatively small percentage of the relevant universe may nevertheless be �statistically valid�.

4.143 The Panel asked the parties to confirm whether that the four exporters included in the sample accounted, in quantity terms, for around 70 per cent of all exports made.

4.144 The EC replied that this had been the case.

4.145 The Panel asked the parties to comment on the relevance of the fact that the DCD initially accepted the sampling methodology suggested by the exporters� association, although the sampled firms were later found by the DCD to cover too few home sales.

4.146 The EC replied that the decision to limit the examination to the four exporters concerned was a decision of the DCD, even if it was suggested by Assopiastrelle. The DCD could and should have verified in advance the representativeness of the sample. Consequently, the DCD is estopped from claiming now that the sample was not representative.

4.147 The Panel recalled that the exporters� questionnaire made reference to the provision of supporting documentation in two places. In the introductory section, while indicating that supporting documentation must be provided, it also allowed exporters the possibility to identify instead the source of the information reported. In addition, Section B requested the submission of any supporting documentation that would help the DCD to better understand the mechanics of the reported transactions. The Panel asked Argentina whether it was of the view that, according to the specifications of the questionnaire used by the DCD, respondents were obliged to provide full documentary evidence of each and every sale reported. The Panel further asked Argentina to clarify whether any of the exporters chose to comply with the requirement set out in the introductory section of the questionnaire by identifying the source of its information. If no exporters took advantage of that option, the Panel asked Argentina whether it was of the view that the DCD was entitled to require the submission of �additional� supporting documentation without specifying what that information should consist of.

4.148 The EC replied that the exporters� replies to Annexes VII, VIII and IX include the number and the date of the sales invoices from which the information reported in those Annexes was derived. Thus, in any event, those Annexes would satisfy the requirement to indicate the �source of the information�.

4.149 The Panel recalled that, on page 14 of the EC�s first written submission, the EC argued that the Argentine authority acted inconsistently with paragraph 6 of Annex II of the AD Agreement, by failing to inform the exporters that their responses had been rejected and by failing to state the reasons therefor. The Panel asked the EC whether this is not a separate claim of the EC but rather an additional argument in support of the EC�s claim that the DCD disregarded the normal value and export price information of the exporters inconsistently with Article 6.8 and Annex II.

4.150 The EC replied that this was the case.

(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

4.151 The EC replied to the questions made by Argentina relating to the EC�s claim under Article 6.8 of the AD Agreement as follows.

4.152 Argentina asked the EC why it considers irrelevant the legal requirement to provide translations set forth in article 28 of Decree 1759/72, when the EC regards as mandatory article 25 of that same Decree, regarding deadlines for submitting documents in administrative proceedings conducted in Argentina.

4.153 To this question, the EC replied as follows.

4.154 The two situations can be easily distinguished.

4.155 The interpretation of the obligations imposed upon the investigating authority by the AD Agreement cannot be left to the discretion of each Member. Thus, the definition of what constitutes �necessary information� or a �reasonable period� made in the domestic law of each Member is subject to review by Panels.

4.156 Nonetheless, each Member�s own interpretation of those notions creates legitimate expectations for the interested parties. The investigating authority is estopped from claiming that information submitted within the deadline which it has prescribed (computed according to the applicable domestic rules) has not been submitted within a �reasonable period�.

4.157 Argentina asked the EC what value the EC attaches to non-confidential summaries, bearing in mind the obligations arising from Article 6.5.1, if, as argued by the EC in its first oral statement, �the non confidential summaries serve exclusively to inform the other interested parties, so that they can defend adequately their interests�.

4.158 The EC replied that its answer to this question was reflected in its answers to questions 3, 4 and 5 made by the Panel following the first meeting.

4.159 Argentina asked the EC why it believed there would not be a justification for resorting to the �facts available� even in situations where samples turn out to be admittedly not representative.

4.160 The EC replied that the decision to limit the examination to a sample of exporter is taken by the investigating authority, which must satisfy itself in advance that the sample is sufficiently representative. Thus, the situation described in the question might arise only as a result of the investigating authority�s own fault. Exporters should not be penalized for the lack of diligence of the investigating authority.

4.161 The circumstances in which the investigating authority may resort to facts available are enumerated exhaustively in Article 6.8. Neither that provision, nor Article 6.10 authorise the investigating authority to use facts available in the event that the sample turns out not to be sufficiently representative in the course of the investigation.

4.162 Argentina asked the EC how one check the veracity of the pricing information regarding home-market sales in the absence of supporting documentation relating to those sales. Argentina further asked the EC how one can check the veracity of this kind of information in cases where the investigating authorities are unable to conduct an on-site verification. Argentina also asked the EC why it gave greater value to an on-site verification than to the provision of supporting documentation.

4.163 The EC replied that its point was simply that the questionnaire did not request the exporters to provide copies of all invoices and that, moreover, this would have been a most unusual request in light of the verification methods usually followed by most investigating authorities.

4.164 Argentina asked the EC why it considered �ridiculous� the issue of currency conversions, even through Article 2.4 of the AD Agreement specifically dealt with the way in which those conversions shall take place. Argentina further asked the EC whether it considered that exchange rates did not have an impact in the calculation of dumping margins. Argentina also asked the EC whether it was of the view that it was unreasonable to request the submission of exchange rate data in order to avoid assigning staff to calculate the value of each of the sales falling within the period of investigation.

4.165 The EC replied that the alleged deficiency concerned exclusively Annex VI, which contains a summary of the sales by market. The 24 amounts reported in that Annex were not used in the dumping calculation. In any event, they can be easily converted into US$ by using the exchange rates provided by Bismantova or other publicly available rates.

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

4.166 In its second written submission, the EC made the following arguments in support of its claim under Article 6.8 of the AD Agreement.

4.167 During the consultations, Argentina argued that the information submitted by the exporters had not been rejected. Rather, according to Argentina, that information was �considered� by the DCD on an �equal footing� with the information supplied by the petitioner.

4.168 That position is clearly untenable under the AD Agreement. Thus, 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 of the AD Agreement.

4.169 The grounds invoked now by Argentina for resorting to �facts available� are either wrong as a matter of fact, or clearly insufficient as a matter of law, or both.

Continuation: Section 4.170

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