4.334 It should therefore be stressed that the two situations described above (significant impeding of the investigation and refusal of access) in themselves reflect the circumstances described in Article 6.8 justifying a determination by the authority on the basis of the facts available as the only possible alternative.

4.335 In the light of the above considerations, the implementing authority could only base its determination on the facts available, and was indeed forced to do so, since it could not, on the basis of a sample as unrepresentative as the one provided, make a correct determination of the normal value.

(vii) Rebuttal of the EC�s supplementary arguments concerning Article 6.8 of the AD Agreement

4.336 The Notes of 30 April, 22 June and 30 August 1999 provide confirmation that exporters were informed of the insufficiency of the information, and rebut the assertion in paragraph 54 of the first written submission of the EC that the Argentine interpretation of Article 6.8 renders paragraph 1 of Annex II null and void, since in this case the exporters did not submit all of the information within a reasonable period, nor was the information submitted of the kind required by the authorities to enable them to make a determination on the basis thereof.

4.337 With respect to the information contained in the record, the EC has taken the alleged Argentine terms �considered on an equal footing� � used in the informal context of consultations � out of their context, claiming that according to Argentina, Article 6.8 enables the investigating authorities to �pick and choose� from the data submitted. Argentina had all of the information before it and duly examined it, following the sequence set forth in Article 6.8, but found that it had to opt for a determination on the basis of the facts available because the information from the exporters turned out to be insufficient, as explained above.

4.338 At the same time, while the authority accepted the sample put forward by the exporters, it asked that the confidentiality of the supporting information be removed and granted a series of extensions to the importers, even accepting late answers to the questionnaires (10 December 1998). How can the EC contend that Argentina has deviated from paragraph 7 of Annex II and that it has relied on a secondary source of information without the special circumspection required by that paragraph?

4.339 The DCD was so meticulous that when forced to resort to secondary information, although aware that the supporting documentation for the determination of the normal value was insufficient, it nevertheless took account of that information and averaged the figures out in order to reduce the margin of dumping. This is ultimately what Table 4 in the first written submission of the EC.

4.340 Thus, contrary to the EC�s assertion, Argentina followed the sequence of Article 6.8 of the AD Agreement and finding that the circumstances described therein had been met, resorted to a secondary source which provided more extensive information within a reasonable period.

4.341 Argentina addressed next the EC�s claim under Paragraph 6 of Annex II of the AD Agreement.

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

4.343 With respect to the EC�s claim in paragraph 49 of its first written submission that the DCD at no point during the investigation suggested that the exporters failed to provide necessary information, Argentina refers the Panel to the Notes DCD Nos. 273-000404/99, 273-000405/99, 273-000406/99 and 273-000407/99 of 30 April 1999 to Bismantova, Casalgrande, Caesar and Marazzi (Section 25 of File No. 061-000794/98), in which the DCD requests the cooperation of the said enterprises in supplying new evidence or adapting the information pertaining to the proceedings so that the implementing authority would have the information it needed to reach a public conclusion with respect to the matter at issue.

4.344 In this connection, the DCD points out that while it is possible that for reasons of competition, certain items of business information supplied by companies must be safeguarded (hence the requested confidentiality that was accepted by the implementing authority), for the purposes of reaching objective and meaningful conclusions the DCD must have information that enables it to do so. This is why it requested the companies to consider the possibility of including in the record of the case a more detailed non-confidential summary or of elaborating on the information supplied or, failing this, to allow the said documentation to be incorporated in the record, removing its confidentiality. This would expressly give the parties concerned and their representatives access to the information in question, remembering that only the duly accredited parties would be allowed to consult the information, for the purposes of issuing an opinion.

4.345 Consequently, by Note No. 273-00768/99 of 22 June 1999, the DCD had to repeat the need for further supporting documentation, since what it had was insufficient:

� The Directorate of Unfair Competition repeats the statement made on other occasions concerning the need for information that would enable the implementing authority to reach public conclusions in its technical reports. To that end, and to enable the Directorate of Unfair Competition to make a precise comparison in its report on the final determination of the margin of dumping, the companies Ceramica Bismantova SpA., Ceramica Casalgrande Padana SpA., Marazzi Ceramiche SpA., and Ceramiche Caesar SpA., are therefore asked to remove the confidentiality requirement for the information concerning the Product Code so that the said information can be incorporated in the record of the proceedings, or to submit a sufficiently detailed non-confidential summary of the information. This requirement must be met within five days after the receipt of this note � .

4.346 Moreover, by Note DCD No. 273-000890/99 of 3 August 1999, the DCD informed the representative of Assopiastrelle, Bismantova, Casalgrande, Marazzi, and Caesar, that �� the implementing authority is currently engaged, at this final stage of the investigation, in the analysis of all of the information in the record of the case in order to arrive at a final determination in these proceedings. To do so, it must take account of all of the information in these proceedings, and considers that it is important to ask you to remove the confidentiality of the information concerning production costs of the product at issue, or to prepare a non-confidential summary that would enable the information to be processed. Given the time-limit for the final determination, we would be grateful if this request could be met within five days following the receipt of this note ��.

4.347 Argentina presented next its legal arguments concerning the EC�s claim under Paragraph 6 of Annex II of the AD Agreement.

4.348 The EC�s argument in paragraph 49 of its first written submission that the implementing authority �did at no point during the investigation suggest that the exporters failed to provide necessary information� is unfounded in view of the above-mentioned Notes. Moreover, it is clear that the reason why the DCD requested � through these Notes � further information from the exporters, was that the information supplied by them was not sufficient.

4.349 In any case, even if it were to be assumed that Argentina had violated paragraph 6 of Annex II, this would be a harmless error (an error committed in the progress of the trial ��, but which was not prejudicial to the rights of the party assigning it, and for which, therefore, the court will not reverse the judgment ��; see Blacks Law Dictionary, Revised Fourth Edition, West Publishing Company, 1968, p. 638) that did not cause any injury, since its effect would be formal and procedural; in other words, what the EC would be demanding is a separate notification with a special format setting out the conclusion that the DCD had reached. As concluded in the previous paragraph, that conclusion was in fact implicit in the mentioned Notes (see Annexes ARG-7, 10 and 11) and would in no way have signified a change of position on the part of the implementing authority.

(b) Arguments of Argentina in its first oral statement relating to the EC�s claim under Article 6.8 of the AD Agreement

4.350 In its first oral statement, Argentina made the following arguments relating to the EC�s claim under Article 6.8 of the AD Agreement.

(i) Treatment of the information in the record

4.351 Argentina submits that it had valid recourse to Article 6.8 of the AD Agreement, as shown by 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 No. 1385/99 introducing the anti-dumping measures in question). The above-mentioned file explains clearly that the exporting firms significantly impeded the investigation, refused access to necessary information or did not provide that information within a reasonable period.

4.352 Consequently, Argentina was fully justified in resorting to the information available.

4.353 Argentina considers that the producing/exporting firms significantly impeded the investigation for the following reasons:

(a) They failed to provide information, or they did so without sufficient supporting documentation;

(b) they did not provide the necessary information within a reasonable period, even when granted repeated extensions;

(c) they were late and displayed reluctance in removing the confidentiality of the information that was absolutely necessary so that the DCD could take it into account and make it public;

(d) they provided little information in the non-confidential summaries;

(e) in some cases they did not provide any non-confidential summary at all;

(f) they failed to comply with some of the required formalities in the general and specific instructions of the questionnaires.

Lack of information or information without sufficient supporting documentation

4.354 Firstly, the information requested from the exporters in the questionnaires was the information that the implementing authority considered absolutely necessary to reach a reasoned and public conclusion. Moreover, it was not enough simply to reply to the questionnaires: the replies needed to be backed by sufficient supporting documentation.

4.355 To allow a precise evaluation of the information submitted, the documentation in support of the replies needed to be sufficiently extensive. Indeed, the general and specific instructions accompanying the questionnaires emphasize that �producers and/or exporters from the respondent country must answer this questionnaire with the greatest possible precision, attaching documentation to support their replies, or if this is impossible, indicating the source of the information�.

4.356 This is reflected in the repeated Notes sent by the DCD to the exporters requesting more extensive information, since what they had provided was not sufficient to make a correct determination of the normal value, the export value and the margin of dumping (see DCD Notes of 30 April, 22 June and 3 August 1999. The last of these Notes is the one in which the DCD merely requested that the confidentiality of the information be removed).

4.357 Moreover, some exporting firms failed to provide any information at all for certain Annexes to the questionnaires. In particular, Caesar and Ceramiche failed to provide any information concerning exports to third countries (Annex IX), and the latter failed to provide any information concerning the cost structure of the exported goods (Annex XI).

4.358 Nor did Caesar and Marazzi supply any information or supporting documentation concerning sizes 20 cm x 20 cm and 30 cm x 30 cm. The latter, did not even provide any information or supporting documentation concerning size 40 cm x 40 cm. Therefore, one of the four sample enterprises failed to provide any information on any of the size categories established by DCD for the product, although this segmentation was accepted by the firms even before Assopiastrelle presented the sampling methodology and the questionnaires were answered.

4.359 In the view of Argentina, this failure to supply information at the very least constitutes an impediment to the investigation, if not a refusal to provide access to information that is essential in itself.

Information within a reasonable period

4.360 Further evidence that the investigation was impeded can be found in the failure by the exporters to supply the requested information within a reasonable period, in spite of the fact that the implementing authority responded favourably to their repeated requests for extensions.

4.361 The exporters were originally given until 30 November 1998 to reply to the questionnaires, and in response to the requests for extension, it was decided to �grant the extension, setting 9 December 1998 as the final deadline for submission�. This does not mean that Argentina submits that the submission of the information by the exporting firms on 10 December was considered a procedural error, but whatever the case, Argentina emphasizes the goodwill shown by the implementing authority in considering the information despite the fact that it was late.

4.362 In any case, Argentina considers the argument made by Japan in its third party submission that a delay of one day should have led the authority to conclude that the information had nevertheless been submitted within a reasonable period to be wrong. Technically, the reasonable period is established by the authority in conformity with its anti-dumping laws and regulations (Article 1 of the AD Agreement). Consequently, it is those laws and regulations which govern the matter at issue. In other words, while the implementing authority was willing to grant extensions for the purposes of gathering the information supplied by the exporters, the limit to that willingness was determined by the statutory deadlines provided for in the AD Agreement (Article 5.10) and Decree 2121/94.

4.363 In the end, the period actually used by the exporters for completing the requirements of the questionnaire ran from 30 November 1998 to 10 August 1999. Indeed, the DCD, in its Note of 30 April 1999, granted 15 days to definitively fulfil the requirements of the questionnaire in view of the shortcomings it had already noted in the replies. Similarly, in its Note of 22 June 1999, the DCD granted a new extension of five days, and finally, in its Note of 3 August, granted another five-day extension. Argentina considers that these successive extensions of the period for submitting the necessary information reflect, in fact, a lack of cooperation by the exporters that is contrary to Article 6.8 of the Agreement.

4.364 It is questionable whether a period running from 30 November 1998 to 10 August 1999 is in fact �reasonable� for the purposes of Article 6.8.

Delay and reluctance in removing the confidentiality of the information; lack of information in the non-confidential summaries; and absence of summaries in certain cases

4.365 The exporting firms were effectively impeding the investigation by completing the required information only at the request of the implementing authority. The authority considered the information to be insufficient without non-confidential summaries or sufficiently detailed summaries, and considered the removal of the confidentiality to be essential. This was finally done on 10 August 1999, that is eight months after the period accorded.

4.366 Argentina recalls in this connection that the DCD repeatedly requested further information, stressing that what had been received was insufficient. Argentina cites, for example, Notes DCD Nos. 273-000404/99, 273-000405/99, 273-000406/99 and 273-000407/99 of 30 April 1999 to Bismantova, Casalgrande, Caesar and Marazzi (Section 25 of File No. 061-000794/98), in which the DCD requested the cooperation of these firms in incorporating already requested evidence or adapting information in the record of the proceedings in order to ensure that the DCD had the information it needed to reach a public conclusion with respect to the matter at issue, granting them a period of 15 days for the purpose.

4.367 In these Notes, the DCD points out that for the purposes of reaching objective and meaningful conclusions, it had to have the information that enabled it to do so. Consequently, to ensure that the parties concerned and their representatives had access to the information in question, it requested that the possibility should be considered of including in the record of the case a more detailed non-confidential summary or of elaborating on the information supplied, or, failing this, of allowing the said documentation to be incorporated in the record, removing its confidentiality.

4.368 Exhibit ARG-19 contains a complete list of the confidential information submitted by each one of the firms with respect to each one of the Annexes, and identifies the information that was accompanied by non-confidential but incomplete summaries. The non-confidential summaries provided by the four sample firms with respect to Annexes III, VII, VIII, IX, X and XI, provided to the Panel in Exhibit ARG-20, are completely irrelevant in that they lack substance and hence could not be used by the implementing authority. Thus, the EC�s comment to the effect that Argentina�s allegation concerning the inadequacy of the non-confidential summaries is ironic seems out of place.

4.369 The exporters were aware that, as indicated in the general instructions for completing the questionnaire (point 5), � � �confidential� information that is not accompanied by a summary or an explanation of why it is impossible to provide such a summary will not be considered as such�. Argentina asks the Panel to make an objective evaluation of whether the summaries provided in Exhibit ARG-20 are �in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence� (Article 6.5.1 of the AD Agreement).

4.370 Moreover, the DCD had to repeat its request for further supporting documentation, since what it had was insufficient (see paragraphs 38 and 42 of Argentina�s first written submission).

Failure to comply with the required formalities in the general and specific instructions of the questionnaires

4.371 Yet another example of the investigation being impeded within the meaning of Article 6.8 of the AD Agreement is, in our view, the fact that the accounting statements submitted by the sample companies were not accompanied by any Spanish translation (except in the case of Marazzi) as required by the general instructions (item 2 of the questionnaire) which refer to the Law on Administrative Procedures No. 19.549, Regulatory Decree No. 1759/72, as harmonized in 1991 by Decree No. 1883/91. In this regard, Argentina recalls that Exhibit ARG-7 cites the DCD Notes of 30 April 1998 in which the DCD states that �it is of the utmost importance that all the information and/or documentation presented should be in Spanish or translated into Spanish by a certified translator (Articles 15 and 28, in accordance with the Law on Administrative Procedures No. 19.549, Regulatory Decree No. 1759/72, as harmonized in 1991 by Decree No. 1883/91) in order to be considered in the present proceedings�.

4.372 Likewise, point 6 of the specific instructions to the questionnaire clearly states that the table in Annex VI (Summary of producer-exporter sales � physical volume) must be in US$. And yet, in the particular case of Bismantova, the information relating to Annex VI was provided in Italian lire, accompanied by a note with the exchange rates for 1995, 1996, 1997 and January-October 1998. Argentina considers that providing this information in Italian lire shows a lack of cooperation and an effort to impede the investigation, as well as a failure to comply with a formal procedural requirement. Moreover, in view of the EC�s comments concerning the legal value of other Argentine legislative provisions (paragraph 12 of its first oral statement), Argentina does not understand why it describes this requirement as ridiculous (paragraph 59).

(ii) Treatment of the information as reflected in the final determination

Impeding of the investigation and refusal of access to the necessary information

4.373 The impeding of the investigation and the refusal of access to the necessary information is also reflected in the final determination, folio 29, which states that: �The sample documentation relating to sales on the Italian domestic market supplied by all of the manufacturing export companies concerned in the case � and as affirmed at the time of their participation in the proceedings by Assopiastrelle, of which these firms are members, they are major representatives of the Italian porcellanato production market � covers no more than approximately 1.92 per cent of the physical volume (m2) and 1.35 per cent of the total estimated value (Italian lire) of sales in the domestic market according to the information duly supplied�.

4.374 Argentina therefore wonders how it is possible to make a correct determination of the normal value of the goods on the basis of a sample of market sales invoices that is so unrepresentative of the total for domestic sales given by the exporting firms. Indeed, the implementing authority had no alternative but to base its determination on the facts available.

4.375 Finally, Argentina stresses that the implementing authority pointed out the shortcomings in the accompanying documentation, as well as the impact of those shortcomings on the investigation. The statements by the DCD in the notes appearing in Annexes ARG-7, ARG-10, ARG-11 and ARG-18 to Argentina�s first written submission correspond exactly to the situation described in Article 6.8 of the AD Agreement. That is to say, this is a situation where the investigation was significantly impeded since the DCD was obliged to continue requesting additional evidence, what it had being insufficient.

4.376 As a result of the repeated requests for supporting documentary evidence, the DCD was obliged to grant repeated extensions to facilitate the pursuit of the investigation, which was impeded by the attitude of the exporters. The combination of these elements placed the authority in a situation in which it did not have the necessary information because the exporting firms were refusing access to that information.

4.377 This was reflected in the final determination, folio 39, where the implementing authority includes the paragraphs of the argument submitted by Zanon, in that these paragraphs introduce the reasoning which led the implementing authority to use the best information available: �As regards the margins of dumping, we submit that the preliminary determination of the Directorate of Unfair Competition (folios 1131 et seq) should be endorsed in that the information on which it was based, i.e. �information and documentation supplied by the domestic manufacturing firm Ceramica Zanon S.A.C.I. y M. and by the domestic importing company Canteras Cerro Negro S.A. (from its Italian supplier ITS S.p.A.)�, is the best information available in view of the lacunae and inconsistencies in the information submitted both by the Italian exporting companies and by Ceramica San Lorenzo (�).�

Rebuttal of various paragraphs of the EC�s first written submission

4.378 In paragraph 60 of its first written submission, the EC claims that the DCD did not inform the exporters at any time during the investigation that the information on export prices and normal value contained in their questionnaire responses had been disregarded.

4.379 Argentina does not consider this to be the case, since the DCD repeatedly asked for more extensive information, stressing that the information submitted was insufficient. One only needs to mention, in this connection, the Notes of 30 April, 22 June and 3 August 1999, in which the DCD requests the cooperation of the exporting firms in incorporating already requested evidence or adapting information in the record of the proceedings in order to ensure that the DCD had the information it needed to reach a public conclusion with respect to the matter at issue. Similarly, in its Note of 22 June 1999, the DCD had to repeat the need for further supporting documentation, since what it had was insufficient.

4.380 The EC is also mistaken when it states, in paragraph 61, that the DCD did not explain in the final dumping determination the reasons why such information was rejected. Indeed, the DCD, in its determinations, pointed out that the information supplied was not sufficient to enable it to reach a reasoned and public conclusion.

4.381 Firstly, already in its preliminary determination the DCD stated that the fact that the exporting firms had asked most of the information they supplied to be declared confidential implied differential and restricted treatment in processing that information.

4.382 Likewise, the final determination shows that the implementing authority was restricted in its handling of the information, and therefore requested a review of the status of that documentation and the incorporation in the proceedings of evidence of interest that would enable the Technical Department to present, in its conclusions, the technical and documentary evidence on which they were based from all the firms involved.

4.383 At the same time, the final determination also shows that as stated before, the lack of representativeness of the sample was a determining factor in forcing the implementing authority to use the best information available.

4.384 It is well known that a sample of some 2 per cent is not valid in statistical terms. In this case, the exporters submitted as the universe of their sales in the domestic market precisely what is usually considered to be the margin of error, and even worse, they did so without indicating the criterion on which they based their sample.

Continuation: Section 4.385

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