4.170 Furthermore, Argentina�s new position is not supported by the record of the investigation. 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. Moreover, the Final Dumping Determination does not mention anywhere that the exporters� information had to be rejected for any of those reasons, contrary also to paragraph 6 of Annex II.

(i) Alleged late submission of the questionnaire responses

4.171 In its first written submission, Argentina contended that the exporters filed their responses to the questionnaire one day after the expiry of the deadline imparted by the DCD.

4.172 Nevertheless, in its first oral statement Argentina qualified this by noting that:

Esto no implica de nuestra parte afirmar que la presentaci�n efectuada por las empresas exportadoras el 10 de diciembre fuera considerada una falta procesal, pero de todos modos, destacamos con esto la buena fe de la Autoridad de Aplicaci�n en considerar la presentaci�n efectuada a pesar de ser tard�a (Argentina�s first oral statement, at para. 11).

4.173 Thus, Argentina seems to admit that the alleged delay in submitting the questionnaire responses is not a sufficient ground for resorting to �facts available� or, at least, that it was not considered as such by the DCD. In view of that, it is difficult to understand what is the relevance, if any, of this argument.

4.174 At any rate, it is not true that the responses were submitted late by the exporters. 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) and, therefore, 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.

4.175 Argentina also alleges that one of the exporters (Casalgrande) missed the deadline for submitting some supporting invoices. Nevertheless, the delay was short: at most three days. Moreover, the EC recalls that no provision of the Anti-Dumping 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.

4.176 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).

4.177 Casalgrande submitted the requested invoices in time to be used by the DCD (the invoices were filed on 10 June 1999, and the Final Dumping Determination was not issued until 23 September 1999). And, indeed, the DCD did use them in one of the dumping calculations. Therefore, the DCD cannot pretend now that this delay impeded the investigation. Moreover, the DCD did not inform Casalgrande that the evidence filed on 10 June 1999 had been rejected. Nor is the rejection of that evidence mentioned in the Final Dumping Determination.

4.178 More generally, Argentina complains about �repeated request for extensions� of deadlines (�reiteradas solicitudes de pr�rrogas�). In reality, however, the exporters requested and obtained 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 cannot complain now that, as a result, the information was not submitted �within a reasonable period� or that the extensions impeded the investigation.

4.179 Finally, the EC rejects the contention made by Argentina in its oral statement, according to which the deadline for submitting the questionnaire responses would have been successively �extended� by the DCD from 30 November 1998 until 10 August 1999, i.e. until the date were the exporters responded to the DCD�s letter of 3 August 1999. The letters of 30 April 1999, 22 June 1999 and 3 August 1999 did not grant any �extensions� for answering to the questionnaire responses. They contained additional requests to remedy the alleged deficiencies of the non-confidential summaries, which were promptly and satisfactorily answered by the exporters.

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

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

4.181 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.

4.182 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).

4.183 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.

4.184 By letters dated 30 April 1999, the DCD requested the exporters to waive their confidentiality requests or to supply non-confidential summaries. Specifically, the letters addressed to Bismantova and Marazzi referred to Annexes III, VII,VIII, IX, X and XI, whereas those addressed to Bismantova and Caesar mentioned only Annexes III, VII, VIII and IX.

4.185 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.

4.186 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) and VIII (sales in Italy), in which the names of the customers and the models would be replaced by �virtual codes�. No requests were made with respect to the other Annexes for which the exporters had requested confidential treatment.

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

4.188 It bears emphasising that the non-confidential summaries submitted on 4 June 1999 contained the same information as the confidential responses of 10 December 1998, 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 of the AD Agreement.

4.189 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.

4.190 By way of justification, the letter of 22 June 1999 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 ��). Thus, the DCD appears to have taken the position that the investigating authority can only make a final determination of dumping based on non-confidential information. Argentina�s first written submission reflects the same position. For the reasons explained in the EC�s answers to some of the questions made by the Panel following the first meeting, that view has no basis on the Anti-Dumping Agreement and is clearly mistaken.

4.191 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 1999, the exporters agreed to that request (although rather misleadingly, the exporters� response of 10 August 1999 is omitted in Argentina�s first written submission).

4.192 Contrary to Argentina�s contentions, the above sequence of events does not evidence lack of co-operation on the part of the exporters, but rather the opposite. Once the exporters were advised by the DCD that the non-confidential summaries submitted together with the questionnaire responses on 10 December 1998 were not considered adequate, they responded promptly to each of the successive and increasingly exacting demands made by the DCD.

4.193 Eventually, the exporters were led by the DCD�s demands to relinquish virtually all their confidentiality requests (while it is true that the EC �never lifted the confidentiality� of the items listed therein, the degree of disclosure accepted by the EC had essentially the same result), and 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 of the AD Agreement.

4.194 Having answered promptly and satisfactorily to all the DCD�s requests, the exporters assumed that all the concerns of the DCD with respect to this issue had already been resolved by the time of the final determination. And, indeed, the Final Dumping Determination does not mention anywhere 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) Alleged failure to provide supporting documents

4.195 Another ground invoked by Argentina for rejecting the exporters� responses is their alleged failure to provide �supporting documents� (�documentaci�n respaldatoria�), and more particularly to provide copies of a �sufficient� number of invoices of the sales made in the Italian market.

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

4.197 The only reference to invoices made in the questionnaire is found in Section B (�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.

4.198 Moreover, the questionnaire requested the exporters� consent for carrying out on-the-spot verifications, something to which all of them agreed. Thus, the exporters could assume legitimately that the DCD would verify the responses by conducting on-the-spot investigations, rather than through the unusual method of asking the exporters to supply, together with their responses, the invoices of all the reported transactions.

4.199 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. That demand would be clearly unreasonable.

4.200 The AD Agreement envisages that the information provided by interested parties will be verified by means of on-the spot investigations (see Article 6.7 and Annex I of the AD Agreement). An investigating authority may chose not to conduct such investigations. But, if so, it cannot impose upon the exporters the burden of supplying all the supporting documents that might have been requested in the course of an on-the-spot verification (and, in addition, translated into the authority�s official language!).

4.201 Furthermore, the introductory paragraph of the questionnaire cited by Argentina allows the exporters to indicate the �source of the information� (�fuente de la informaci�n�) as an alternative to supplying the supporting documents. Annexes VII, VIII and IX mentioned the number and the date of the invoices from which the information reported in those Annexes was derived. Thus, the exporters� responses would in any event have satisfied this requirement.

4.202 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.

4.203 Nor did the letters of 30 April 1999 mention the alleged failure to provide �supporting documents�, contrary to what is repeatedly asserted in Argentina�s first written submission and in its first oral statement. Those letters referred exclusively to alleged deficiencies of the non-confidential summaries.

4.204 It was only at the meeting of 11 May 1999 that the case-handlers requested for the first time that Casalgrande and Bismantova, the two main exporters, provide copies of invoices covering an �important� volume of sales.

4.205 In response to the request made at the meeting of 11 May 1999, 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!).

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

4.207 The Final Dumping Determination comforts that assumption. It confirms that the exporters submitted the requested invoices. 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) Alleged lack of representativeness of the domestic sales reported by the selected exporters

4.208 Argentina also invokes the supposed lack of representativeness of the domestic sales reported by the selected exporters as a reason for resorting to �facts available�.

4.209 As noted by the Panel in its questions to the parties, it is unclear whether Argentina complains that the sample of exporters was not representative or, rather, that the domestic sales reported by the selected exporters were not sufficient for the purposes of establishing the normal values (the EC has not been able to establish how the percentages mentioned by Argentina at paragraphs 43 and 50 of its first written submission have been calculated).

4.210 For the reasons already explained in its first oral statement and in the answers to the questions made by the Panel following the first meeting, the EC rejects the contention that the sample of exporters was not representative.

4.211 Likewise, the EC rejects the allegation that the domestic sales reported by the selected exporters were insufficient. As explained in the EC�s answer to a question by the Panel, the exporters reported in Annex VIII of their responses all the domestic transactions of each of the models exported to Argentina in significant quantities (the total volume and value of the sales of all models made in Italy is reported in Annexes V and VI, respectively, of the questionnaire responses).

4.212 The domestic sales of the other models were not reported in that Annex because that information was not required in order to make a model-to-model comparison of the normal value with the export price. Contrary to Argentina�s assertions, this approach was clearly explained in the questionnaire responses and was never contested by the DCD.

4.213 The reported domestic transactions of each model represented more than 5 per cent of the volume of the exports sales of the same model. Moreover, taken together, the reported domestic sales represented more than 5 per cent of the overall export sales of each exporter (the Final Dumping Determination states, on page 29, that the volume of the domestic sales reported by Caesar represented 4.46 per cent of its exports to Argentina during 1998. That figure is incorrect. According to the EC�s own calculations, the correct figure is 7.35 per cent for 1998 and 10.6 per cent for the whole investigation period, which included also 1997). Therefore, the reported sales were sufficient for the purposes of establishing the normal values (see footnote 2 of the AD Agreement). They were certainly more �representative� than the seven invoices supplied by the petitioner and relied upon by the DCD.

4.214 Furthermore, the DCD did at no point during the investigation inform the exporters that the reported domestic transactions were insufficient. It was only in the Final Dumping Determination that the DCD made for the first time some remarks in that sense. Nevertheless, even at that late stage, the DCD refrained from drawing any conclusions.

4.215 Argentina argues that the lack of representativeness of the reported domestic transactions 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. The �supporting documents� in question (i.e. the non-confidential summaries submitted on 4 June 1999) were supplied by the exporters as soon as they were requested by the DCD. In any event, the DCD did not need those summaries in order to establish whether the sales reported in the questionnaire responses were sufficient for the purposes of establishing the normal values. Argentina makes again the error of assuming that the determination of dumping must be based on non-confidential information.

4.216 At any rate, this alleged deficiency would concern only part of the information supplied by the exporters. Even if the domestic sales reported by the exporters had in fact been insufficient for establishing the normal values, that would not provide a valid justification for disregarding also the export price information supplied by the exporters in the questionnaire responses.

(v) Other alleged deficiencies

4.217 Argentina also alleges in passing a series of deficiencies of the questionnaire responses. As explained below, some of those alleged deficiencies were not such, while the others were minor omissions which did not warrant the DCD�s decision to reject all the information contained in the responses.

(vi) Export sales to third countries

4.218 Argentina alleges that Caesar and Marazzi did not provide information with respect to their export sales to third countries.

4.219 This is true. But Argentina misleadingly omits to mention that the questionnaire allowed the exporters not to provide such information if the volume of domestic sales was sufficiently representative. Caesar and Marazzi relied expressly upon that possibility.

4.220 At any rate, the DCD never informed Marazzi and Caesar that their responses had been rejected for this reason. 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, but attaches no consequences to this omission. This issue was not raised again by the DCD during the investigation and is not mentioned in the Final Dumping Determination.

(vii) Cost of production data for the exported merchandise

4.221 Argentina also alleges that Marazzi did not provide cost-of-production data for the models exported to Argentina.

4.222 Again, this allegation is misleading. 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.

4.223 Moreover, the DCD never informed Marazzi that its response had been rejected for this reason. 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 explanations, but draws no consequences from this. The issue was not raised again by the DCD during the investigation and is not mentioned in the Final Dumping Determination.

(viii) Currency conversions

4.224 Argentina complains that Bismantova provided the information requested in Annex VI in Italian Lire instead of in US$.

4.225 This is clearly a minor deficiency which, contrary to Argentina�s allegations, could not have impeded significantly the investigation. Annex VI is a summary table of the sales turnover by market. Bismantova reported in that Annex a total of 24 amounts. Those amounts can be easily converted into US$ by using the exchange rates provided by Bismantova or other publicly available rates.

4.226 In any event, the DCD never informed Bismantova that it would reject the response for this reason. The Preliminary Dumping Determination mentions that 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 during the investigation and is not mentioned in the Final Dumping Determination.

(ix) Translation of accounting documents

4.227 Finally, Argentina complains that three of the exporters did not provide a Spanish translation of their balance sheet.

4.228 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.

4.229 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.

4.230 At any rate, once again, the DCD did not inform the exporters concerned that their responses had been rejected on this ground. The Preliminary Dumping Determination mentions that Bismantova, Casalgrande and Caesar did not provide a Spanish translation, but draws no consequences from this. The issue was not raised again by the DCD during the investigation and is not mentioned in the Final Dumping Determination.

(x) Paragraph 6 of Annex II

Continuation: Section 4.231

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