4.231 The DCD failed to comply with the requirements imposed by paragraph 6 of Annex II. It did not inform forthwith the exporters of the rejection of their responses and it failed to give the reasons for such rejection in the Final Dumping Determination.

4.232 Argentina contends that it complied with the requirement to inform the exporters in the letters of 30 April, 22 June and 3 August 1999. However, those letters were concerned exclusively with the alleged deficiencies of the non-confidential summaries, which were in any event remedied by the exporters well before the final determination. Those letters make no reference to any of the other grounds for rejecting the responses now invoked by Argentina.

4.233 Argentina also failed to comply with the requirement to explain in the final determination the reasons for rejecting the evidence provided by the exporters. In its first oral statement, Argentina raises the extraordinary argument that the DCD�s decision to resort to facts available is �reflected� on page 39 of the Final Dumping Determination, where the DCD �incorporates� the allegations (�alegatos�) of the petitioner. There is, however, an obvious difference between the allegations made by an interested party and the findings of the investigating authority. The mere fact that the Final Dumping Determination reproduces the allegations of the petitioner cannot be taken to mean that those allegations were upheld by the investigation authority. The Final Dumping Determination also �incorporates� the allegations made by the exporters, including the allegation that the sales were not made at dumping prices. Yet the EC would not mistake those allegations for the DCD�s findings.

(f) Arguments of the EC in its second oral statement in support of its claim under Article 6.8 of the AD Agreement

4.234 In its second oral statement, the EC made the following arguments relating to its claim under Article 6.8 of the AD Agreement.

(i) Information on export sales

4.235 In Annex VII of the questionnaire responses the exporters reported all the sales made to Argentina of all the models exported in significant quantities. Moreover, the exporters provided to the DCD copies of invoices covering approximately 50 per cent of those sales. Yet that information, and the supporting invoices, were totally disregarded by the DCD.

4.236 In response to a question from the Panel, Argentina mentions, for the very first time, that the export price information supplied by the exporters was disregarded because it could not be �cross-checked� (�cruzada�) with the official import statistics and the questionnaire responses of some importers.

4.237 This �revelation� leaves us astonished. The exporters were at no point during the investigation informed of the discrepancies now alleged by Argentina. Nor are such discrepancies mentioned anywhere in the Final Dumping Determination or, indeed, in any of Argentina�s previous submissions to this Panel.

4.238 Argentina�s explanations not only arrive too late, but are also insufficient. Argentina does not bother to specify what were the alleged discrepancies. Moreover, Argentina does not explain why the secondary sources used by the DCD were deemed more reliable than the information supplied by the exporters regarding their own sales, including the invoices.

4.239 The EC is convinced that the alleged discrepancies could have been satisfactorily explained by the exporters, if only they had been given a chance to do so. By denying such opportunity to the exporters, the DCD acted inconsistently, once again, with paragraph 6 of Annex II and, consequently, with Article 6.8 of the Anti-Dumping Agreement.

(ii) Confidentiality

4.240 In response to a question from the Panel, Argentina asserts that the concerns expressed by the DCD with respect to this issue in the preliminary determination had not been resolved by the time of the final determination because �the essential information in order to determine the normal value, the export price and the dumping margin continued to be confidential until the final determination (and still remains so)� (�� la informaci�n sustancial a fin de determinar el valor normal, el valor de exportaci�n y el margen de dumping continu� siendo confidencial hasta la determinaci�n final (y a�n subsiste)�.

4.241 Argentina appears to disregard, once again, that, under Article 6.5 of the AD Agreement, interested parties have a right to request confidential treatment. Thus, the mere fact that the exporters maintained some of their confidentiality requests would not, in itself, be a sufficient justification for disregarding their responses. Rather, Argentina would have to demonstrate that all the requirements for resorting to Article 6.5.2 were met.

4.242 Moreover, Argentina makes again the fundamental mistake of considering that the determination of dumping can be based only on non-confidential information.

4.243 In any event, Argentina�s contentions are totally unsupported. Argentina does not say what �essential� information remained undisclosed by the time of the final determination.

4.244 Furthermore, Argentina�s contentions are unfounded. It is undisputed that the exporters disclosed all the information on domestic prices and on export prices contained in Annexes VII and VIII, with the only exception of the customer codes. It is also undisputed that the exporters disclosed all the cost of production data reported in Annexes X and XI, except the name of the producers. Those Annexes do contain the �essential� information for calculating the dumping margin.

4.245 Finally, if the DCD remained unsatisfied with the non-confidential summaries by the time of the final determination, why is the Final Dumping Determination silent on this issue?

(iii) Supporting documents

4.246 The EC rejects once again Argentina�s contention that the questionnaire required the exporters to provide a �sufficient� number of invoices for verification purposes.

4.247 The new arguments made by Argentina in its second written submission, like those made in earlier submissions, are contrived and unconvincing. The AD Agreement requires the investigating authority to specify �in detail� the information requested from the exporters (see Annex II, paragraph 1). The DCD failed to do so. It would be unreasonable to read into a vague instruction to provide the �documentaci�n correspondiente�, without any further specification, a requirement to supply copies of a �sufficient� number of invoices of the domestic sales listed in Annex VIII (whatever Argentina means now by �sufficient�).

4.248 Moreover, on Argentina�s own interpretation, the questionnaire would be internally contradictory:

(a) the section entitled Objetivos y Alcances requires to provide supporting documents or, alternatively, to cite the source of information;

(b) yet, point 1 of the Instrucciones Generales requires to provide the �documentaci�n correspondiente�, which would suggest that it is not sufficient to cite the source of information;

(c) finally, Section B (exports to Argentina), but not sections C (sales in Italy) and D (export sales to third countries), requires to provide invoices with the purpose of helping the DCD to �achieve a better understanding of the transactions� (�� que ayude a una mejor comprensi�n de la operaci�n�). That request, however, would have been totally redundant if, as argued now by Argentina, the Objetivos y Alcances section and the Instrucciones Generales already required to provide copies of a �sufficient� number of invoices with verification purposes.

4.249 The EC also rejects Argentina�s assertions that a request to provide supporting documents was made in the letters of 30 April 1999. Argentina quotes selectively from those letters.

4.250 The letters of 30 April 1999 did not request the exporters to supply �nuevos elementos probatorios ��. Rather, the letters allude to:

� la incorporaci�n de nuevos elementos probatorios o bien la adecuaci�n de la informaci�n obrante en las actuaciones (emphasis added by the EC).

4.251 It is also misleading to suggest that the letters requested from the exporters �una ampliaci�n de la informaci�n adjuntada�. The relevant passage requests the exporter to evaluate:

� la posibilidad de incorporar a las actuaciones un resumen no confidencial m�s detallado o bien una ampliaci�n de la informaci�n adjuntada o, en su defecto, proceda a habilitar la incorporaci�n de dicha documentaci�n a las actuaciones de referencia, levantando el car�cter de confidencial oportunamente solicitado (emphasis added by the EC).

4.252 The letters of 30 April 1999 reflect the DCD�s erroneous view that only non-confidential information can be used in the dumping calculation and, therefore, that the information covered by a confidentiality request cannot be �incorporada a las actuaciones�. The letters do not request the exporters to supply any �supporting documents�, but rather to waive their confidentiality requests with respect to information already contained in the questionnaire responses of 10 December 1998, so that such information can be �incorporada a las actuaciones�. Thus, the �elementos probatorios� mentioned in the letter of 30 April 1999 were �new� only in the sense that they had not been �incorporados a las actuaciones� yet by the DCD, because they were covered by a confidentiality request.

4.253 Furthermore, the letters of 30 April 1999 refer expressly to Article 6.5 of the Ley No. 24.425, which is the equivalent provision of Article 6.5 of the AD Agreement, and not to the equivalent provision of Article 6.8, thus confirming that those letters are concerned exclusively with the issue of the confidentiality requests made by the exporters.

4.254 For those reasons, the EC reiterates its position that the provision of supporting invoices with verification purposes was requested for the first time at the meeting with the case-handlers of 11 May 1999.

4.255 In any event, the EC considers that this issue is ultimately irrelevant, since it is not disputed that the requested invoices were submitted by the exporters on 7 and 11 June 1999 and, thus, could, and indeed were used by the DCD in the final determination, albeit arbitrarily averaged with the petitioner�s information.

4.256 Argentina contends that the invoices were not representative of the exporters� domestic sales. However, the invoices covered approximately 50 per cent of the domestic sales reported in the questionnaire responses. Therefore, they were clearly representative of those transactions. Thus, in reality, Argentina�s argument appears to be that the transactions reported in the questionnaire responses, rather than the invoices, were not representative, which leads me to the next point of our statement.

(iv) Representativeness of domestic sales

4.257 As already explained by the EC, 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 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. This approach was clearly explained in the questionnaire responses and was never contested by the DCD in the course of the investigation.

4.258 The domestic sales reported by the exporters in Annex VIII were certainly more �representative� than the eight invoices supplied by the petitioner and relied upon by the DCD. Moreover, of those eight invoices, four correspond to sales of polished tiles (which according to Argentina�s explanations were not used in the dumping calculation) and another to a sale of tiles of 12.5 cm x 25 cm.

4.259 Furthermore, the DCD never informed the exporters that the domestic sales reported in the questionnaire responses were insufficiently representative. 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.

(g) Replies of the EC to the second set of questions by the Panel relating to the EC�s claim under Article 6.8 of the AD Agreement

4.260 The EC replied to the second set of questions by the Panel regarding the EC�s claim under Article 6.8 of the AD Agreement as follows.

4.261 The Panel recalled that, with respect to Annexes IV-VI, the exporters provided information for which they requested confidential treatment, as well as a non-confidential summary of the information concerned. The Panel recalled further that this summary was prepared by way of indexing all the figures provided in those Annexes. The Panel asked the parties why the DCD was of the view that indexation did not permit a �reasonable understanding of the substance of the information submitted in confidence�.

4.262 The EC replied that this issue was not raised by the DCD in the Preliminary Dumping Determination, or in the letters of 22 April 1999, or indeed at any stage of the investigation. Furthermore, this issue was nowhere mentioned by the DCD in the Final Dumping Determination. It was no more than an ex-post facto justification and, as such, should be rejected by the Panel.

4.263 The Panel recalled that, with respect to Annexes III and VII-XI of the investigation questionnaire, the exporters provided information for which they requested confidential treatment, although they did not provide a non-confidential summary of the information concerned. The Panel asked the parties whether the exporters provided a justification as to why such information was not capable of summarization (that is, a justification separate from the statement that the information in question required confidential treatment). If this was so, the Panel asked the parties to provide it with copies of the relevant evidence in the record.

4.264 To this question, the EC gave the following reply.

4.265 In the EC�s view, the Panel need not reach the issue of whether the information contained in Annexes VII-XI was capable of summarization.

4.266 The EC recalls that on 4 June 1999 the exporters submitted non-confidential summaries of Annexes VII-IX in the format agreed with the case-handlers at the meeting of 11 May 1999. Those summaries 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. On 24 June 1999, the exporters agreed to a further request from the DCD to waive the confidentiality of the product code. At the request of the DCD, the exporters also agreed to waive the confidentiality of all the cost of production data contained in Annexes X and XI, on condition that the identity of the producer was kept confidential.

4.267 Thus, contrary to what is suggested in the question, the only Annex for which the exporters did not provide a non-confidential version was Annex III (list of customers). The type of information contained in that Annex (a list of names) is clearly not capable of summarization. And, indeed, the DCD appears to agree since it did not request the exporters to disclose the customer names in the non-confidential summaries of Annexes VII and VIII submitted on 4 June 1999.

4.268 If the exporters did provide a justification as to why the information for which confidential treatment was requested was not capable of summarization, the Panel asked whether the parties were of the view that under Article 6.5.1 of the AD Agreement investigating authorities have the right to contest such justifications. If so, the Panel asked further, did the DCD conclude, contrary to the exporters, that the information in question could in effect be summarized? If the DCD made this conclusion, could Argentina explain the DCD�s reasoning?

4.269 The EC replied that its answer to this question was the same as its answer to the previous question.

4.270 The Panel asked the parties to comment on the following statement in the report of the Appellate Body in Thailand � H-Beams, in which the Appellate Body addressed the question of the use of confidential information by the investigating authority as a basis for an authority�s final determination:

An anti-dumping investigation involves the commercial behaviour of firms, and, under the provisions of the Anti-Dumping Agreement, involves the collection and assessment of both confidential and non-confidential information. An injury determination conducted pursuant to the provisions of Article 3 of the Anti-Dumping Agreement must be based on the totality of that evidence. We see nothing in Article 3.1 which limits an investigating authority to base an injury determination only upon non-confidential information (Appellate Body Report, Thailand � Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland, WT/DS122/AB/R, adopted 5 April 2001, at para. 107).

4.271 The EC replied that Argentina�s position in this case reflects the erroneous assumption that only non-confidential information can be used in a dumping determination. The ruling of the Appellate Body in Thailand � H Beams confirms that such view is thoroughly mistaken.

4.272 The Panel recalled that Exhibit EC-10 was a report of the meeting with the case-handlers on 11 May 1999 from the representatives of the exporters in Argentina to the exporters� lawyers in Brussels. The report reflected the discussions with the case handlers, concerning the non-confidential information that needed to be provided, in the following manner:

Additionally, this information must cover an �important� part of total sales in the domestic market (you said 50 per cent � I don�t know, I guess that is largely enough), the coverage must be September 1997 � October 1998, and we have to present invoices (with confidential status) supporting this non-confidential version.

4.273 The Panel asked Argentina whether this was an accurate reflection of what was said during that meeting and of the requests for information that were made. Further, the Panel asked Argentina whether the case-handlers at the 11 May meeting requested invoices from two exporters only (Casalgrande and Bismantova). The Panel asked the parties next whether the 50 per cent coverage mentioned in this paragraph related to the provision of non-confidential information, or to the documentation supporting the information provided. The Panel also asked the parties whether the 50 per cent related to all sales made in the home market, or only to the sales reported by the exporters.

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

4.275 During the meeting of 11 May 1999, the case-handlers made two requests:

(a) first, that all the four exporters provide a non-confidential summary of the domestic and export sales reported in their questionnaire responses in accordance with the agreed format described in Exhibit EC-10; and

(b) second, that the main two exporters (Bismantova and Casalgrande) provide copies of a �sufficient� number of supporting invoices for the domestic and export transactions reported in the questionnaire responses.

4.276 The case-handlers explained that the invoices were requested in order to verify the transactions reported in the confidential version of the questionnaire responses. According to the case-handlers, it was necessary to resort to this method of verification because the DCD could not pay verification visits to Italy. The case-handlers made no suggestion to the effect that the transactions reported in the confidential version of the questionnaire responses were insufficient.

4.277 During the meeting, Mr. Di Gianni (of the law firm Van Bael & Bellis of Brussels), asked whether it would be sufficient to provide invoices covering 50 per cent of the sales reported in the questionnaire responses. The case-handlers agreed.

4.278 The above is confirmed by another report sent by Mr. Di Gianni to the Italian exporters on 19 May 1999, in which it was explained that:

� we have decided � to co-operate with [the DCD] and to include in the non-confidential reply a list of sales in Italy and in Argentina. From such a list, the names of the supplier and customers should be eliminated. The other information, including the prices and quantities should be kept.

Moreover, it would be advisable to submit a copy of the invoices concerning the sales reported in the reply for the period September 1997 to September 1998. The Dumping Team would appreciate it receiving at least 50 per cent of the sales reported for that period (free translation from the Italian language by the EC).

4.279 As a final remark, the EC would recall that Annex II, paragraph 1, provides that the investigating authority must �specify in detail� the information requested from the exporters. The fact that it has become necessary to engage into the exegesis of internal reports of the exporters in order to ascertain what �supporting documents� were actually requested by the DCD is in itself sufficient evidence that the DCD failed to comply with that requirement.

2. Argentina

(a) Arguments of Argentina in its first written submission relating to the EC�s claim under Article 6.8 of the AD Agreement

4.280 In its first written submission, Argentina made the following arguments relating to the EC�s claim under Article 6.8 of the AD Anti-Dumping Agreement.

4.281 Argentina first laid out the facts relevant for the presentation of its arguments.

(i) General facts

4.282 The record of the case, File No. 061-000794/98 of the Registry of the Ministry of the Economy and Public Works and Services, incorporated by reference in Resolution 1385/99 introducing the anti-dumping measures in question, demonstrates that the claims of the EC are erroneous. The above-mentioned file explains clearly that Argentina had valid recourse to Article 6.8 of the AD Agreement.

4.283 Argentina considers that the exporting firms significantly impeded the investigation, refused access to necessary information and did not provide it within a reasonable period. This assertion is based on the facts contained in the record of the case.

4.284 By Note SSCE No. 945/98 of 9 October 1998, the implementing authority sent a certified copy of the Resolution initiating this investigation to the Counsellor of the European Commission in Argentina, informing him that �� under Article 6.1 of Law 24.425 (the Argentine law approving the Uruguay Round Agreements, duly notified to the WTO), all interested parties in an anti dumping investigation shall be given notice of the information which the authorities require and ample opportunity to submit in writing all evidence which they consider relevant ��.

4.285 The then Secretary for Industry, Trade and Mining of Argentina informed the Government of Italy, by its note of 10 November 1998, that �... the fullest transparency will be ensured at every stage of the proceedings, and pursuant to the appropriate legal provisions, all relevant technical and formal requirements will be respected ��. The note went on to state that �� we repeat that the institutions involved in these proceedings are ready at any time to provide both the Government of Italy and the firms and entities concerned with technical advice regarding the various stages of the investigation and the particular features of the case�.

4.286 These notes reflect the willingness of the Argentine Government to give the exporters every opportunity to defend their interests in conformity with Articles 6.1 and 6.2 of the AD Agreement.

(ii) Lack of cooperation from the exporters in the light of Article 6.8 of the AD Agreement

4.287 Despite having been invited to an information meeting, the exporters did not attend. Argentina draws the Panel�s attention to the note dated 28 October 1998, sent by Assopiastrelle to the DCD (File No. 061-009413 � folio 1), which states �� we regret to inform you that, owing to the distance and our business commitments, it will be impossible for us to attend ��.

4.288 The information meeting was held on 30 October 1998. DCD officials answered all the participants� questions in order to dispel their doubts regarding the procedures and the required information, and supplied them with the questionnaires. The record of that hearing, which lists the participating entities and shows that the exporting companies and/or their representatives were absent, has been attached to the record. Because the exporters were present at that meeting, the Italian Embassy agreed to send them the questionnaires.

Continuation: Section 4.289

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