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EUROPEAN COMMUNITIES - ANTI-DUMPING DUTIES ON MALLEABLE CAST AB-2003-2 Report of the Appellate Body
VII. Exhibit EC-12: Articles 3.1, 3.4, and 17.6(i) of the Anti-Dumping Agreement 119. We turn next to Brazil's claims relating to Exhibit EC-12, an "internal 'note for the file'" submitted by the European Communities to the Panel in the context of the Panel's assessment of the evaluation of the injury factors listed in Article 3.4 of the Anti-Dumping Agreement .125 Exhibit EC-12 sets out the European Commission's consideration of certain injury factors listed in Article 3.4, namely return on investments, wages, productivity, cash flow, ability to raise capital, and magnitude of the margin of dumping.126 The document was not disclosed to the interested parties during the course of the anti-dumping investigation.127 120. Brazil expressed doubts before the Panel about whether Exhibit EC-12 formed part of the record of the underlying anti-dumping investigation and requested the Panel to find that Exhibit EC-12 was not properly before it.128 The Panel found that:
The Panel therefore "decline[d] Brazil's request � to rule that Exhibit EC-12 [was] not properly before [it]."130 After examining other issues raised by Brazil in relation to the injury determination, the Panel concluded that the European Communities did not act inconsistently with its obligations under Articles 3.1 or 3.4 of the Anti-Dumping Agreement in the evaluation of the injury factors.131 121. Brazil claims that the Panel incorrectly interpreted Articles 3.1 and 3.4, and that the Panel failed to assess whether the European Commission's establishment of the facts was proper under Article 17.6(i) of the Anti-Dumping Agreement.132
122. We begin our examination with Brazil's claim under Article 17.6(i) of the Anti-Dumping Agreement . Brazil recognizes that, in assessing the facts of the matter, panels enjoy discretion as triers of facts.133 Nevertheless, Brazil asserts that, in this case, the Panel did not properly exercise its discretion because "it based its findings as to the contemporaneous nature of Exhibit EC-12 exclusively on a mere unsubstantiated assertion from the EC which was accepted by the Panel on the basis of a presumption of good faith."134 According to Brazil, "[n]o positive facts were available to support such a finding."135 123. The European Communities rejects Brazil's suggestion that the sole justification given by the Panel for accepting the validity of Exhibit EC-12 was the European Communities' assertion that the document was indeed valid.136 The European Communities also contends that it was within the Panel's discretion to decide the extent to which it relied on the presumption of good faith.137 124. The issue before us is whether the Panel's assessment of the facts was proper, under Article 17.6(i) of the Anti-Dumping Agreement , when it found that Exhibit EC-12 formed part of the record of the underlying anti-dumping investigation.138 Article 17.6 reads, in relevant part:
125. We recently stated, in EC - Bed Linen (Article 21.5 - India ), that "we 'will not interfere lightly with [a] panel's exercise of its discretion' under Article 17.6(i) of the Anti-Dumping Agreement ."139 In that appeal, we also explained that "[a]n appellant must persuade us, with sufficiently compelling reasons, that we should disturb a panel's assessment of the facts or interfere with a panel's discretion as the trier of facts."140 In this appeal, Brazil has not offered sufficiently compelling reasons to persuade us that we should disturb the Panel's finding that Exhibit EC-12 is part of the record of the underlying anti-dumping investigation. 126. Brazil's claim rests, in our view, on an incorrect characterization of the Panel's reasoning. Brazil asserts that, in reaching its finding on this issue, the Panel relied solely on the European Communities' assertion that Exhibit EC-12 was produced during the investigation.141 We disagree. Indeed, we find in the following excerpt from the Panel Report evidence that the Panel inquired into the genuineness of Exhibit EC-12:
127. This excerpt demonstrates that the Panel took into account the European Communities' responses to its questions before reaching its finding.143 It also indicates that the Panel did not rely exclusively on the presumption of good faith, as Brazil suggests, given that some of the Panel's questions were directed at the validity of Exhibit EC-12. If the Panel had placed total reliance on the presumption of good faith, it would have simply accepted the European Communities' assertion that Exhibit EC-12 formed part of the record of the investigation and would not have posed questions to assess the consistency of Exhibit EC-12 with other evidence contained in the record. Therefore, we are satisfied that the Panel "took steps to assure [itself] of the validity of [Exhibit EC-12] and of the fact that it forms part of the contemporaneous written record of the EC investigation."144 128. In addition, to the extent that Brazil may be understood to be calling into question the value placed by the Panel on the responses given by the European Communities, relative to that accorded to Brazil's own assertions, these allegations can only be regarded as directed at the Panel's appreciation of the evidence. In making such a claim under Article 17.6(i), it is not sufficient for Brazil simply to disagree with the Panel's weighing of the evidence, without substantiating its claim of error by the Panel. As we have recently reiterated, "[i]t is not 'an error, let alone an egregious error', for the Panel to have declined to accord to the evidence the weight" that one of the parties sought to have accorded to it.145 Based on our reading of the Panel Record, Brazil did not substantiate its allegation that Exhibit EC-12 was not contemporaneous with the investigation. In these circumstances, we are unable to conclude that the Panel's assessment was in error. Therefore, we reject Brazil's claim that the Panel failed to assess whether the establishment of the facts was proper pursuant to Article 17.6(i) of the Anti-Dumping Agreement , when it found that Exhibit EC-12 was part of the record of the underlying anti-dumping investigation.
129. We proceed to Brazil's claim that the Panel incorrectly interpreted the requirements of Articles 3.1 and 3.4 of the Anti-Dumping Agreement . At the oral hearing, Brazil clarified that it is not alleging that the Panel erred by relying on our Report in Thailand - H-Beams in reaching its finding that it was "required" to include Exhibit EC-12 in its examination, despite the fact that Exhibit EC-12 was not disclosed to the interested parties during the anti-dumping investigation.146 Rather, Brazil asserts that the issue here is that there was no verifiable evidence of the contemporaneous character of Exhibit EC-12147 and, therefore, the European Communities was not entitled to rely on that document to evidence its compliance with Articles 3.1 and 3.4 of the Anti-Dumping Agreement . 130. Article 3.4 of the Anti-Dumping Agreement provides:
131. This provision requires an investigating authority to evaluate all relevant economic factors in its examination of the impact of the dumped imports. By its terms, it does not address the manner in which the results of this evaluation are to be set out, nor the type of evidence that may be produced before a panel for the purpose of demonstrating that this evaluation was indeed conducted.148 The provision simply requires Members to include an evaluation of all relevant economic factors in its examination of the impact of the dumped imports. In this dispute, the European Communities submitted Exhibit EC-12 as the only evidence that its investigating authority evaluated certain of the factors listed in Article 3.4.149 Upon satisfying itself that Exhibit EC-12 formed part of the record of the investigation-a finding that we have found to be consistent with the Panel's obligations under Article 17.6(i)-the Panel was entitled to rely on Exhibit EC-12 in assessing whether the European Communities evaluated all of the injury factors listed in Article 3.4. 132. Turning to Brazil's allegations relating to Article 3.1, we fail to see any basis for Brazil's allegations that the Panel incorrectly interpreted the requirement to determine injury on the basis of positive evidence and involving an objective examination. Once the Panel found that Exhibit EC-12 did form part of the record of the underlying anti-dumping investigation-a finding we do not disturb-there was no longer any reason for the Panel to find that Exhibit EC-12 did not constitute "positive evidence", in the sense of the evidence being of an "affirmative, objective and verifiable character, and � credible", or to find that the evaluation in Exhibit EC-12 did not constitute an "objective examination", in the sense of it being "unbiased".150 Brazil has not put forward any reason to substantiate a violation of Article 3.1 other than the rejected allegation that Exhibit EC-12 did not form part of the contemporaneous record of the anti-dumping investigation. 133. For these reasons, we find that the Panel did not fail to assess whether the European Commission's establishment of the facts was proper under Article 17.6(i), and did not incorrectly interpret the requirements of Articles 3.1 and 3.4 of the Anti-Dumping Agreement by including Exhibit EC-12 within its assessment of the European Commission's evaluation of the injury factors listed in Article 3.4. We therefore uphold the finding, in paragraphs 7.46 and 7.47 of the Panel Report, that Exhibit EC-12 was properly before the Panel.
VIII. Disclosure of Information: Articles 6.2 and 6.4 of the Anti-Dumping Agreement 134. We examine next Brazil's claim that the Panel erred in finding that the European Communities did not act inconsistently with Articles 6.2 and 6.4 of the Anti-Dumping Agreement by failing to disclose the information contained in Exhibit EC-12. 135. The Panel found that the information in Exhibit EC-12 "was considered not relevant and was not specifically relied upon by the EC in reaching the anti-dumping determination" and that, therefore, the Brazilian exporter was not "deprived of timely opportunities to see information relevant to its case nor of an opportunity for defence of its interests."151 Thus, the Panel found that "the European Communities has not violated Articles 6.2 and 6.4 with respect to the information on injury factors referred to exclusively in Exhibit EC-12." 152 136. On appeal, Brazil claims that the Panel based its finding on an incorrect interpretation of the obligations arising from Articles 6.2 and 6.4 of the Anti-Dumping Agreement . Brazil asserts that "the findings of the investigating authorities regarding each of these factors [listed in Article 3.4] are necessarily 'relevant' within the meaning of Article 6.4."153 In Brazil's view, the Panel erred in finding that the European Commission could decide whether the information contained in Exhibit EC-12 had any "added value" for the parties and was relevant within the meaning of Article 6.4, and whether the information related to the defence of the parties' interests within the meaning of Article 6.2.154 137. The European Communities agrees with the Panel's ultimate conclusion on Article 6.4, but disagrees with the Panel's interpretation of that provision.155 According to the European Communities, the term "information" in Article 6.4 does not include "the reasoning that the authorities applied to the data they have collected."156 The European Communities asserts that it had no obligation to disclose Exhibit EC-12 because its contents do not constitute "information" in the sense of Article 6.4; rather, Exhibit EC-12 contains its investigating authority's conclusions with respect to the data that had been collected, and the "raw data" had been disclosed to the interested parties.157 With respect to Article 6.2, the European Communities asserts that, although the first sentence contains a right that is "very general in nature", it does not "impose a specific obligation on investigating authorities to inform interested parties of the legal basis for its final determination on injury during the course of an investigation".158 138. At the outset, we wish to underscore the importance of the obligations contained in Article 6 of the Anti-Dumping Agreement . This Article "establishes a framework of procedural and due process obligations".159 Its provisions "set out evidentiary rules that apply throughout the course of the anti-dumping investigation, and provide also for due process rights that are enjoyed by 'interested parties' throughout such an investigation".160 139. We begin our analysis of Brazil's claims with Article 6.4, which reads:
140. At the oral hearing, the European Communities conceded that Exhibit EC-12 contains more than the conclusions or reasoning of its investigating authority because the document also contains "a summary of the raw data" on some of the injury factors listed in Article 3.4.161 The European Communities did not deny that the data are "information" for purposes of the disclosure requirements of Article 6.4.162 Instead, the European Communities asserted that, despite the fact that Exhibit EC-12 also contains data, it was under no obligation to disclose the document because the raw data used to prepare Exhibit EC-12 had been disclosed to the interested parties to the extent that it was compatible with confidentiality requirements.163
141. We observe, however, that the European Communities' contention that the data in Exhibit EC-12 had been disclosed to the interested parties during the anti-dumping investigation cannot be reconciled with the Panel's finding of fact on this matter. The Panel noted that "the information in Exhibit EC-12 was not disclosed in any form to the interested parties in the course of the investigation."164 This appears, to us, to be an unequivocal factual finding.165 The European Communities has not challenged this finding on appeal and, therefore, we decline to review it, in conformity with Article 17.6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes. 142. Thus, we turn to an examination of whether the Panel was correct in concluding that the European Communities was under no obligation to disclose Exhibit EC-12 during the anti-dumping investigation. Article 6.4 requires that, "whenever practicable", investigating authorities provide timely opportunities for all interested parties to see and prepare presentations on the basis of "all information" that meets the following criteria:
143. The European Communities has not asserted in any of its submissions that it was not "practicable" to disclose Exhibit EC-12. In addition, the European Communities acknowledged at the oral hearing that Exhibit EC-12 did not contain confidential information covered by Article 6.5 of the Anti-Dumping Agreement .166 We will therefore limit our examination to determining whether the information in Exhibit EC-12 was "relevant" to the interested parties and "used" by the European Commission. 144. We recall that the Panel found that the Brazilian exporter was "not deprived of timely opportunities to see information relevant to its case" because the "information [in Exhibit EC-12] was considered not relevant and was not specifically relied upon by the EC in reaching the anti-dumping determination."167 In our view, the Panel incorrectly interpreted the requirement in Article 6.4 that the information be "relevant", and it incorrectly applied the requirement that the information be "used" by the investigating authorities. 145. We turn first to the requirement that the information be "relevant". From the Panel's reasoning, it is apparent that it read this requirement to mean "relevant" from the perspective of the investigating authority. We disagree. Article 6.4 refers to "provid[ing] timely opportunities for all interested parties to see all information that is relevant to the presentation of their cases". (emphasis added) The possessive pronoun "their" clearly refers to the earlier reference in that sentence to "interested parties". The investigating authorities are not mentioned in Article 6.4 until later in the sentence, when the provision refers to the additional requirement that the information be "used by the authorities". Thus, whether or not the investigating authorities regarded the information in Exhibit EC-12 to be relevant does not determine whether the information would in fact have been "relevant" for the purposes of Article 6.4. 146. This conclusion is supported by our reasoning in US - Hot Rolled Steel, where we explained that "Article 3.4 lists certain factors which are deemed to be relevant in every investigation and which must always be evaluated by the investigating authorities."168 Thus, because Exhibit EC-12 contains information on some of the injury factors listed in Article 3.4, and the injury factors listed in that provision "are deemed to be relevant in every investigation", Exhibit EC-12 must be considered to contain information that is relevant to the investigation carried out by the European Commission. As such, the information in Exhibit EC-12 was necessarily relevant to the presentation of the interested parties' cases and is, therefore, "relevant" for purposes of Article 6.4. 147. We disagree also with the Panel's conclusion on whether the investigating authorities "used" the information in Exhibit EC-12. The Panel did not expressly determine that the European Commission did not "use" the information in Exhibit EC-12 as contemplated under Article 6.4. Instead, the Panel stated that the information in Exhibit EC-12 "was not specifically relied upon by the EC in reaching the anti-dumping determination".169 It appears that the Panel arrived at this conclusion because, in its view, the European Commission had "essentially concluded that this data was 'in line' with other data (that was disclosed) and that there was no 'value added' to the substance of their investigation in the analysis of these factors."170 In our view, however, the Panel's reasoning overlooks the fact that the European Commission was required to evaluate all the injury factors listed in Article 3.4, and the evaluation of some of these factors is set out exclusively in Exhibit EC-12.171 In other words, Exhibit EC-12 relates to a required step in the anti-dumping investigation. The European Communities relies on Exhibit EC-12 as the sole evidence that it performed this required step. As we see it, this necessarily leads to the conclusion that the information in Exhibit EC-12 was in fact "used" by the European Commission in the anti-dumping investigation and that, therefore, Exhibit EC-12 also satisfies this criterion of Article 6.4. Thus, the European Communities was not entitled to exclude this information on the basis that it did not consider that it provided "value added" to the investigation. 148. Therefore, we are of the view that the information contained in Exhibit EC-12 should have been disclosed to the interested parties, pursuant to Article 6.4, because the information was relevant to the interested parties, used by the European Commission in the investigation, and not confidential. 149. The European Communities recognized during the oral hearing that a finding of violation in this case under Article 6.4 would necessarily entail a violation of Article 6.2.172 We are also of the view that, by failing to meet its legal obligation to disclose Exhibit EC-12, the European Communities did not afford the Brazilian exporter "a full opportunity for the defence of [its] interests" as required under Article 6.2 of the Anti-Dumping Agreement . One of the stated objectives of the disclosure of information required under Article 6.4 is to allow interested parties "to prepare presentations on the basis of this information". The "presentations" referred to in Article 6.4, whether written or oral, logically are the principal mechanisms through which an exporter subject to an anti-dumping investigation can defend its interests. Thus, by failing to disclose Exhibit EC-12 and thereby depriving the Brazilian exporter of an opportunity to present its defence, the European Communities did not act consistently with Article 6.2. 150. For all these reasons, we reverse the Panel's finding in paragraphs 7.348 and 7.349 of the Panel Report and find, instead, that the European Communities acted inconsistently with Articles 6.2 and 6.4 of the Anti-Dumping Agreement , by failing to disclose to the interested parties during the anti-dumping investigation the information on the injury factors listed in Article 3.4 that is contained in Exhibit EC-12.
IX. Implicit Analysis of the "Growth" Factor: Article 3.4 of the Anti-Dumping Agreement 151. We turn now to Brazil's claim relating to the European Communities' evaluation of the injury factor "growth" pursuant to Article 3.4 of the Anti-Dumping Agreement . 152. Before the Panel, Brazil claimed that the European Communities had not explicitly addressed "growth", one of the injury factors listed in Article 3.4.173 The European Communities admitted that no separate record was made of the evaluation of actual and potential negative effects on "growth".174 The European Communities argued, however, that "while no separate record was made of its evaluation of 'growth', its consideration of this factor is implicit in its analysis of the other factors."175 153. The Panel began its analysis of this issue by noting that, although a "formalistic 'checklist'" approach to the evaluation of the factors listed in Article 3.4 would be "highly desirable", it found "no such obligation in the text of the provision and consequently [did] not believe that this is a required approach to [the] analysis under Article 3.4."176 According to the Panel, the "provision requires substantive, rather than purely formal, compliance", so that the "requirements of this provision will be satisfied where it is at least apparent that a factor has been addressed, if only implicitly."177 The Panel thus found that:
154. Brazil appeals from this finding of the Panel. It contends that Articles 3.1 and 3.4 require "explicit" analysis of each injury factor.179 Thus, in Brazil's view:
Brazil also asserts that if it were sufficient to deduce from the evaluation of other factors that a certain factor has been addressed, then the requirement that all fifteen of the injury factors listed in Article 3.4 be evaluated would lose effectiveness.181 155. The European Communities rejects Brazil's contentions because, in its view, our Report in Thailand - H-Beams "established that the obligation to consider the factors in Article 3.4 was quite distinct from the various obligations in the [Anti-Dumping] Agreement to disclose or publish information about that consideration."182 The European Communities further explains that, in stating that "growth" was addressed implicitly, the Panel established as a factual matter that European Communities had properly considered the factor "growth".183 156. The participants in this appeal do not dispute that it is mandatory for investigating authorities to evaluate all of the fifteen injury factors listed in Article 3.4 of the Anti-Dumping Agreement .184 One of the fifteen factors expressly listed in Article 3.4 is the "actual and potential negative effects on � growth". The issue raised by Brazil in this appeal is whether the requirements of Article 3.4 were satisfied in this case, even though the factor "growth" was evaluated only "implicitly" and no separate record of its evaluation was made. 157. Looking first to the text of Article 3.4, we find that it calls for "an evaluation of all relevant economic factors and indices having a bearing on the state of the industry". The text, however, does not address the manner in which the results of the investigating authority's analysis of each injury factor are to be set out in the published documents. 158. The requirements of "positive evidence" and "objective examination" in Article 3.1 of the Anti-Dumping Agreement similarly do not regulate the manner in which the results of the analysis are to be set out. In Thailand - H-Beams, we examined a claim under Article 3.1, relating to the use of a confidential document for purposes of an injury determination under Article 3.4, and found that:
159. Our conclusion in that case regarding the obligations in Article 3.1 was premised on the notion that the manner in which the analysis of the injury factors and the results of the injury determination are to be disclosed to interested parties and set forth in the published documents is a matter regulated by other provisions of the Anti-Dumping Agreement . Thus, in that case, we explained that:
In our view, this same premise also indicates that Articles 3.1 and 3.4 do not regulate the manner in which the results of the "evaluation" of each injury factor are to be set out in the published documents. 160. Brazil argues that the Panel's interpretation of Article 3.4 would reduce that provision to inutility. It explains that:
We disagree. The obligation to evaluate all fifteen factors is distinct from the manner in which the evaluation is to be set out in the published documents. As the European Communities contends, that the analysis of a factor is implicit in the analyses of other factors does not necessarily lead to the conclusion that such a factor was not evaluated.188 161. Accordingly, because Articles 3.1 and 3.4 do not regulate the manner in which the results of the analysis of each injury factor are to be set out in the published documents, we share the Panel's conclusion that it is not required that in every anti-dumping investigation a separate record be made of the evaluation of each of the injury factors listed in Article 3.4. Whether a panel conducting an assessment of an anti-dumping measure is able to find in the record sufficient and credible evidence to satisfy itself that a factor has been evaluated, even though a separate record of the evaluation of that factor has not been made, will depend on the particular facts of each case. Having said this, we believe that, under the particular facts of this case, it was reasonable for the Panel to have concluded that the European Commission addressed and evaluated the factor "growth". 162. Having regard to the nature of the factor "growth", we believe that an evaluation of that factor necessarily entails an analysis of certain other factors listed in Article 3.4. Consequently, the evaluation of those factors could cover also the evaluation of the factor "growth". This relationship was recognized by Brazil during the oral hearing, when we inquired about the nature of the factor "growth" and whether it may be reflected in the performance of certain other factors listed in Article 3.4.189 163. Moreover, we note that the Panel explained that in analyzing certain of the other factors listed in Article 3.4�including sales, profits, output, market share, productivity, return on investment and capacity utilization-the European Commission "traced developments from 1995 through the end of the [POI]" and "[t]his examination touched upon the performance and relative diminution or expansion of the domestic industry."190 The Panel then went on to give the following specific example: "� the Provisional Regulation (recital 150) indicates that there was a decrease in EC production in 1995 and 1996, and an increase between 1996 and the [POI], while EC production capacity, sales volume, profitability and market share decreased."191 164. Brazil argues that, even if the evaluation of "growth" implies examining other factors listed in Article 3.4, an investigating authority must still put them into context, weigh them against each other and draw an appropriate overall conclusion.192 We note that the Panel did review whether the European Commission examined the factors "in context", as Brazil contends is required:
165. Looking also at the regulation imposing provisional anti-dumping duties in this case, we find that it supports the conclusion that the European Commission evaluated "growth":
From our perspective, the "declines" and "losses" observed with respect to several of the factors examined in this particular case necessarily relate to the issue of "growth" as well. To put it more precisely, the negative trends in these factors point to a lack of "growth". This, in turn, supports the conclusion that the European Commission evaluated this injury factor. 166. For all these reasons, we uphold the Panel's finding in paragraph 7.311 of the Panel Report that the European Communities did not violate its obligations under Article 3.4 of the Anti-Dumping Agreement in respect of the injury factor "growth". X. Causality: Article 3.5 of the Anti-Dumping Agreement 167. We turn now to Brazil's allegations of error under Article 3.5 of the Anti-Dumping Agreement . Brazil identifies two errors by the Panel related to the European Commission's causality analysis:
We address each of these alleged errors in turn.
168. Brazil argued before the Panel that the relative cost efficiency of the Brazilian exporter under investigation vis-�-vis European Communities producers should have been examined by the European Commission as a "known factor[ ] other than the dumped imports" causing injury.195 Before the European Commission, the Brazilian exporter under investigation had asserted that the fittings the exporter sold in the European Communities market ("black heart" fittings) had a lower cost of production than those sold by European Communities producers in the European Communities market ("white heart" fittings), although both were considered "like products" for purposes of the investigation.196 The Brazilian exporter had also claimed that it was this lower cost of production that was reflected in the products' selling prices.197 The Brazilian exporter had raised this cost efficiency issue before the European Commission in relation to the dumping- and injury-related segments of the investigation, but not with regard to the causality analysis.198 Nevertheless, Brazil argued before the Panel that the European Commission should have examined this cost efficiency as a "known" factor in the causality analysis in the light of the significant difference between the dumping and underselling margins determined during the investigation (which difference Brazil terms the "margins analysis"), and because the European Commission had been alerted to this advantage of the Brazilian exporter in an earlier phase of the investigation.199 169. The Panel observed that the Brazilian exporter had identified this cost efficiency before the European Commission in the context of the dumping and injury determinations.200 The Panel also found that the European Commission "did investigate the alleged differences in cost of production and market perception between white and black heart variants of the product concerned and made factual findings that the difference in cost of production was minimal and that there was no significant difference in market perception."201 The Panel then went on to reject Brazil's claim:
170. Brazil appeals the Panel's finding that the relatively higher cost of production for European Communities producers was not a "known" causal factor that the European Commission had to examine under Article 3.5. Brazil contends that the text of Article 3.5 does not support the Panel's interpretation that investigating authorities can limit their examination only to those factors raised by the parties in the context of the causality analysis.203 In any event, Brazil notes that the cost of production data of the European Communities producers were required for a proper comparison between the Brazilian and European Communities producers. As such data was available only to the European Commission and not to Brazil (for reasons of confidentiality), Brazil submits that its exporter had sufficiently raised the cost of production difference before the European Commission on the basis of information available to it at the time of the investigation.204 171. Furthermore, according to Brazil, its so-called "margins analysis", which is based on data from the European Commission's disclosure documents released before publication of the definitive determination, confirms that the Brazilian exporter enjoys a lower cost of production than the European Communities domestic industry and that "a significant part" of the industry's injury was not due to the effects of dumping.205 Thus, Brazil argues that the relatively higher cost of production of the European Communities industry is a "known factor" other than dumped imports, which the European Commission was required to examine under Article 3.5, and that, by failing to do so, the European Commission attributed to dumped imports those injuries that were caused by this unexamined causal factor. 172. The European Communities requests us to reject Brazil's arguments on appeal. The European Communities explains that the Brazilian exporter did not raise during the investigation the possible comparative advantage resulting from any difference in costs of production between the Brazilian exporter and the European Communities industry.206 Rather, the alleged differences in the cost of production and market perception between the "white heart" and "black heart" variants of the product were raised by the Brazilian exporter when requesting an adjustment to its prices for purposes of the European Commission's calculation of the undercutting margin.207 According to the European Communities, the fact that Brazil raised this factor in one phase of the investigation does not render the factor "known" by the European Commission to have caused injury to the domestic industry. In any event, the European Communities argues, such a difference in costs of production is not a "factor other than the dumped imports" that the European Commission was required to "examine" in terms of the third sentence of Article 3.5.208 173. The issue before us is whether, under Article 3.5, the alleged higher cost of production of the European Communities industry, raised by the Brazilian exporter solely in the context of the European Commission's dumping and injury determinations, was a "known factor[ ] other than the dumped imports which at the same time [was] injuring the domestic industry", thereby requiring examination by the European Commission. 174. We begin our examination with the text of the provision governing an investigating authority's causality analysis. Article 3.5 of the Anti-Dumping Agreement provides:
175. Article 3.5 requires that an investigating authority establish a "causal relationship" between dumped imports and the domestic industry's injury. In the course of identifying this causal relationship, investigating authorities are not permitted to attribute to dumped imports injuries caused by other factors. Critical to the effective operation of the non-attribution obligation, and indeed, the entire causality analysis, is the requirement of Article 3.5 to "examine any known factors other than the dumped imports which at the same time are injuring the domestic industry", for it is the "injuries" of those "known factors" that must not be attributed to dumped imports. In order for this obligation to be triggered, Article 3.5 requires that the factor at issue:
176. We are mindful that the Anti-Dumping Agreement does not expressly state how such factors should become "known" to the investigating authority, or if and in what manner they must be raised by interested parties, in order to qualify as "known". We also recognize that the Anti-Dumping Agreement does not expressly state to what degree a factor must be unrelated to the dumped imports, or whether it must be extrinsic to the exporter and the dumped product, in order to constitute a factor "other than the dumped imports". We need not, however, resolve such questions in this appeal, given the factual findings of the European Commission in this investigation and the Panel in this case. 177. We note that Brazil's claim rests entirely on the assumption that there was a marked difference in the costs of production between the Brazilian exporter and the European Communities producers. Brazil's factual allegation regarding the difference in costs of production, however, was rejected by the European Commission. As the Panel noted, the "European Communities did investigate the alleged differences in cost of production and market perception � and made factual findings that the difference in cost of production was minimal and that there was no significant difference in market perception."209 These factual findings of the European Commission were affirmed by the Panel210, and as such, we do not inquire into them on appeal. Having rejected the Brazilian exporter's factual premise in the context of one phase of the investigation, the European Commission, in our view, had no reason to undertake an analysis in a subsequent phase of the investigation that would have been predicated upon the very correctness of the same premise. In other words, once the European Commission had determined that the allegation of the difference in cost of production was unfounded, it had no obligation to examine its effects on the domestic industry under Article 3.5. 178. Thus, we agree with the Panel that "the European Communities did examine these factors, and, in light of its findings, did not perceive of them as 'known' causal factors."211 However, we disagree with the Panel's apparent understanding of the term "known" in Article 3.5. We understand the Panel, in rejecting this aspect of Brazil's claim under Article 3.5, to have stated that the alleged causal factor was "known" to the European Commission in the context of its dumping and injury analyses, but that the factor was nevertheless not "known" in the context of its causality analysis.212 In our view, a factor is either "known" to the investigating authority, or it is not "known"; it cannot be "known" in one stage of the investigation and unknown in a subsequent stage. This does not, however, affect our finding, which is premised on the fact that once the cost of production difference was found by the European Commission to be "minimal", the factor claimed by Brazil to be "injuring the domestic industry" had effectively been found not to exist.213 As such, there was no "factor" for the European Commission to "examine" further pursuant to Article 3.5. 179. We therefore uphold the Panel's finding, in paragraph 7.362 of the Panel Report, that the difference in cost of production between the Brazilian exporter and the European Communities industry was not a "known factor[ ] other than the dumped imports which at the same time [was] injuring the domestic industry".
180. The Panel made the following findings regarding the non-attribution analysis undertaken by the European Commission in this investigation:
181. Based on these findings, the Panel determined that, notwithstanding the European Commission's analysis of each causal factor solely on an individual basis, such analysis nevertheless ensured that the effects of causal factors other than dumped imports were not improperly attributed to dumped imports:
182. The Panel therefore determined that Article 3.5 does not require an evaluation of the collective impact of other causal factors. With respect to this particular case, the Panel found that, based on what it understood to be the operation of the European Communities' causality methodology, the effects of other causal factors were sufficiently separated and distinguished so as to avoid improper attribution of injuries to dumped imports. 183. The European Communities raises an initial objection to our consideration of Brazil's claim regarding the European Commission's failure to examine the collective impact of other causal factors. The European Communities argues that the issue is not properly before us because it was never raised directly before the Panel, stating that, "although, in the arguments it presented to the Panel, Brazil criticized the EC authorities' handling of 'other factors', at no point did it accuse them of failing to consider properly the collective effect of those factors."216 Because this issue was not raised before the Panel, the European Communities argues, the Panel should not have ruled on this issue, and by doing so, the Panel denied the European Communities a "fair hearing".217 As a result, the European Communities requests us to declare the Panel's legal interpretation to be "of no effect"218 and its factual findings "irrelevant to the determination".219
184. We disagree with the European Communities' contention that Brazil never identified the collective effect of other causal factors as part of its Article 3.5 claim during the Panel proceedings. Before the Panel, the European Communities made the following statement:
We view this statement by the European Communities before the Panel to reflect accurately the precise point argued on appeal by Brazil, namely, that the European Commission was required in its causality analysis to examine the collective effects (what the European Communities referred to as "cumulated effect") of other causal factors vis-�-vis those of dumped imports. We also understand from this statement that the European Communities had opportunity to respond to Brazil's argument on this issue before the Panel and, in fact, did so. In the light of its apparent understanding of and response to Brazil's argument regarding the requirement to examine other causal factors collectively, the European Communities cannot be said to have had insufficient notice of this issue, or to have been denied a "fair hearing" before the Panel. We therefore find no due process concerns raised by our consideration of the merits of this issue and, consequently, we find the European Communities' objection to be without merit. 185. Brazil challenges the European Communities' causality methodology, as applied in this investigation, because it fails to ensure that injury caused by any other factor is not attributed to the dumped imports. According to Brazil, an investigating authority that has separated and distinguished the injurious effects of other causal factors individually from the effects of dumped imports has not fully discharged its obligation under the non-attribution language of Article 3.5.221 The investigating authority must also separate and distinguish the collective effects of the other causal factors from the effects of dumped imports by "evaluat[ing] the collective effect of those factors on the alleged causal link between the dumped imports and the injury."222 Only by separating the collective effects of these other causal factors from the effects of dumped imports can an investigating authority ensure that factors other than dumped imports are not a sufficient cause to sever the causal link between the dumped imports and injury.223 186. The European Communities argues that the causality methodology employed in this investigation is consistent with the obligations under Article 3.5. The European Communities recognizes that its investigating authority was required to separate and distinguish the injurious effects of the various causal factors so as to ensure that injuries caused by other factors were not attributed to dumped imports.224 It points out, however, that the Anti-Dumping Agreement does not compel a particular methodology to be employed when fulfilling this requirement.225 The European Communities therefore argues that Brazil seeks to impose a legal requirement that is not specified in the Anti-Dumping Agreement .226 187. The issue before us, therefore, is whether the non-attribution language of Article 3.5 requires an investigating authority, in conducting its causality analysis, to examine the effects of the other causal factors collectively after having examined them individually. 188. Article 3.5 provides, in relevant part:
This obligates investigating authorities in their causality determinations not to attribute to dumped imports the injurious effects of other causal factors, so as to ensure that dumped imports are, in fact, "causing injury" to the domestic industry. In US - Hot-Rolled Steel we described the non-attribution obligation as follows:
Non-attribution therefore requires separation and distinguishing of the effects of other causal factors from those of the dumped imports so that injuries caused by the dumped imports and those caused by other factors are not "lumped together" and made "indistinguishable".228 189. We underscored in US - Hot-Rolled Steel, however, that the Anti-Dumping Agreement does not prescribe the methodology by which an investigating authority must avoid attributing the injuries of other causal factors to dumped imports:
Thus, provided that an investigating authority does not attribute the injuries of other causal factors to dumped imports, it is free to choose the methodology it will use in examining the "causal relationship" between dumped imports and injury. 190. Turning to Brazil's arguments in this appeal, we do not read Article 3.5 as requiring, in each and every case, an examination of the collective effects of other causal factors in addition to examining those factors' individual effects. We observed in US - Hot-Rolled Steel that the non-attribution language of the Anti-Dumping Agreement necessarily requires that an investigating authority separate and distinguish the effects of other causal factors from the effects of dumped imports, because only by doing so can an investigating authority "conclude that the injury they ascribe to dumped imports is actually caused by those imports, rather than by the other factors."230 191. In contrast, we do not find that an examination of collective effects is necessarily required by the non-attribution language of the Anti-Dumping Agreement. In particular, we are of the view that Article 3.5 does not compel, in every case, an assessment of the collective effects of other causal factors, because such an assessment is not always necessary to conclude that injuries ascribed to dumped imports are actually caused by those imports and not by other factors. 192. We believe that, depending on the facts at issue, an investigating authority could reasonably conclude, without further inquiry into collective effects, that "the injury � ascribe[d] to dumped imports is actually caused by those imports, rather than by the other factors."231 At the same time, we recognize that there may be cases where, because of the specific factual circumstances therein, the failure to undertake an examination of the collective impact of other causal factors would result in the investigating authority improperly attributing the effects of other causal factors to dumped imports.232 We are therefore of the view that an investigating authority is not required to examine the collective impact of other causal factors, provided that, under the specific factual circumstances of the case, it fulfils its obligation not to attribute to dumped imports the injuries caused by other causal factors. 193. We now turn to the facts of this case to examine whether the European Communities has failed to discharge its non-attribution obligation under Article 3.5 by not conducting an examination of the collective impact of other factors. We begin by noting that the European Commission in this investigation expressly identified the proper attribution of injuries as one of the purposes of its causality analysis, stating that it "examined whether the material injury suffered by the Community industry has been caused by the dumped imports and whether other factors might have caused or contributed to that injury, in order not to attribute possible injury caused by other factors to the dumped imports."233 The European Commission first identified other factors that may be causing injury to the domestic industry.234 In then evaluating each "other factor" individually, the European Commission determined that each factor's contribution to injury was insignificant (or, for one factor, not so much as to break the causal link between dumped imports and injury).235 As a result, the European Commission concluded that dumped imports were causing material injury to the domestic industry, without consideration of whether the collective effects of the other causal factors undermined the causal relationship between dumped imports and injury.236 194. On appeal, Brazil does not contest the European Communities' individual separating and distinguishing of the effects of other factors. It relies instead on its argument that an investigating authority is also required under Article 3.5 to examine other causal factors collectively in every investigation. Aside from this legal argument, which we have rejected, Brazil has not identified how, under the facts of this case, the European Commission's failure to examine the collective impact of the other causal factors resulted in this case in the attribution to dumped imports of injuries resulting from those other factors. If Brazil viewed the analysis of the European Commission in this case to have attributed improperly to dumped imports the injuries caused by other factors, Brazil had the opportunity before the Panel to adduce evidence to this effect. As far as we are aware from the Panel Record, Brazil proffered no such evidence. Nor has the Panel made any factual finding in this regard. We find no basis, therefore, to find that the causality analysis of the European Commission in this investigation was inconsistent with the non-attribution obligation of the European Communities under Article 3.5 of the Anti-Dumping Agreement . 195. We therefore uphold the Panel's finding, in paragraphs 7.369 and 7.370 of the Panel Report, that the causality methodology applied by the European Commission in this investigation, which did not include an examination of the collective impact of other known causal factors, did not attribute the injuries caused by those other factors to the dumped imports.
196. For the reasons set out in this Report, the Appellate Body:
197. The Appellate Body therefore recommends that the Dispute Settlement Body request the European Communities to bring its measure, which has been found in this Report, and in the Panel Report as modified by this Report, to be inconsistent with its obligations under the Anti-Dumping Agreement , into conformity with that Agreement.
Signed in the original at Geneva this 7th day of July 2003 by:
_______________________
126Panel Report, para. 7.341.
127Ibid., para. 7.45.
128Ibid., para. 7.43.
129Ibid., para. 7.46. The Panel, however,
"deplore[d] the fact that this information, or an accurate non-confidential
summary of any confidential information contained therein, was not disclosed to
interested parties during the investigation, and that the fact of
consideration of the elements discussed in EC-12 is not directly discernible
from the published documents." (Ibid., para. 7.45) (original emphasis)
130Ibid., para. 7.47.
131Panel Report, para. 7.342.
132In its Notice of Appeal, Brazil also included a
claim that the Panel breached its obligations under Article 11 of the DSU.
(Notice of Appeal, p.3, attached as Annex 1 to this Report) However, Brazil
confirmed at the oral hearing that it is pursuing only its claim under Article
17.6(i) of the Anti-Dumping Agreement . Brazil also raised Article
17.5(ii) of the
Anti-Dumping Agreement , arguing that, to the extent that the Panel failed to
examine properly the contemporaneous character of Exhibit EC-12, the Panel did
not examine the matter based upon "the facts made available in conformity with
appropriate domestic procedures to the authorities of the importing Member".
Brazil's allegation under Article 17.5(ii) is thus part of its claim under
Article 17.6(i) that the Panel erred in finding that Exhibit EC-12 formed part
of the record of the underlying anti-dumping investigation. (Brazil's
appellant's submission, paras. 135 and 153) Brazil made no separate arguments in
its pleadings regarding Article 17.5(ii). 134Brazil's statement at the oral hearing.
135Ibid.
136European Communities' response to questioning at the oral hearing.
137European Communities' appellee's submission, para. 124.
138Brazil is not challenging on appeal the contents of Exhibit EC-12. (Brazil's
response to questioning at the oral hearing)
139Appellate Body Report, EC - Bed Linen (Article 21.5 - India), para.
169, quoting Appellate Body Report, US - Wheat Gluten, para. 151.
140Ibid., para. 170.
141Brazil's statement at the oral hearing.
142Panel Report, para. 7.46.
143At the oral hearing, Brazil suggested that the Panel had made two separate
inquiries: one related to the "validity" of Exhibit EC-12, the other directed at
whether the document formed part of the record of the anti-dumping
investigation. According to Brazil, although the European Communities' responses
about the methodology and sources of information that underlie Exhibit EC-12
could have been considered evidence of the document's validity, they do not
support the European Communities' assertion that the document was produced
during the anti-dumping investigation. (Brazil's response to questioning at
the oral hearing) We do not agree with Brazil's contention that the Panel made
separate inquiries as to the "validity" of Exhibit EC-12, on the one hand, and
when it was produced, on the other. The Panel, in our view, conducted an overall
inquiry into the genuineness of Exhibit EC-12, including whether it formed part
of the record of the anti-dumping investigation, and arrived at an overall
finding on the basis of the results of that inquiry.
144Panel Report, para. 7.307.
145Appellate Body Report, EC - Bed Linen (Article 21.5 - India), para.
177, quoting Appellate Body Report, Korea - Alcoholic Beverages, para.
164. (footnote omitted)
146Panel Report, para. 7.45, citing Appellate Body Report,
Thailand - H-Beams, paras. 107, 111, and 118. (original emphasis)
147Brazil's response to questioning at the oral hearing.
148See infra, paras. 157-159.
149Panel Report, para. 7.42. We recall that Brazil is not challenging on appeal
the contents of Exhibit EC-12. See supra, footnote 138.
150Appellate Body Report, US - Hot-Rolled Steel, paras. 192-193.
151Panel Report, para. 7.348.
152Ibid., para. 7.349. The Panel, however, found a violation of Articles
12.2 and 12.2.2 of the Anti-Dumping Agreement because "it is not directly
discernible from the published Provisional or Definitive Determination that the
European Communities addressed or explained the lack of significance of certain
listed Article 3.4 factors." (Ibid., para. 7.435) This finding has not
been appealed.
153Brazil's appellant's submission, para. 176. (underlining omitted)
154Ibid., para. 177.
155European Communities' appellee's submission, para. 153. However, the European
Communities has not appealed this interpretation.
156Ibid., para. 146.
157European Communities' response to questioning at the oral hearing.
158European Communities' appellee's submission, para. 149, quoting Panel Report,
Guatemala - Cement II, para. 8.238.
159Appellate Body Report, Thailand - H-Beams, para. 109.
160Appellate Body Report, EC - Bed Linen (Article 21.5 - India), para.
136. (emphasis added)
161European Communities' response to questioning at the oral hearing.
162We note also that the Panel refers to the "information" in Exhibit EC-12.
See, for example, Panel Report, paras. 7.45 and 7.349.
163European Communities' response to questioning at the oral hearing.
164Panel Report, para. 7.45. (emphasis added)
165In paragraph 7.348 of the Panel Report, the Panel states that the "European
Communities also gathered and analysed data with respect to the injury factors
referred to exclusively in Exhibit EC-12, but essentially concluded that this
data was 'in line' with other data (that was disclosed)". The use of the
adjective "other" to describe the data that were disclosed indicates, to us,
that the Panel did not mean to imply that the disclosed data were the same as
the data that are contained in Exhibit EC-12.
166European Communities' response to questioning at the oral hearing.
167Panel Report, para. 7.348.
168Appellate Body Report, US - Hot-Rolled Steel, para. 194. (emphasis
added)
169Panel Report, para. 7.348.
170Ibid.
171These factors are productivity, return on investments, cash flow, wages,
ability to raise capital, and magnitude of the margin of dumping.
172European Communities' response to questioning at the oral hearing.
173Panel Report, para. 7.309.
174Ibid., para. 7.310.
175Ibid., para. 7.299.
176Ibid., para. 7.310.
177Ibid.
178Ibid., paras. 7.310-7.311. We understand that the Panel used the term
"address" when referring to the requirements to "examine" and "evaluate" in
Article 3.4 of the Anti-Dumping Agreement .
179Brazil's response to questioning at the oral hearing.
180Brazil's appellant's submission, para. 162.
181Ibid., para. 165.
182European Communities' appellee's submission, para. 132, referring to
Appellate Body Report, Thailand - H-Beams, para. 117.
183Ibid., para. 138.
184Appellate Body Report, Thailand - H-Beams, para. 125; Appellate Body
Report, US - Hot-Rolled Steel, para. 194.
185Appellate Body Report, Thailand - H-Beams, para. 111.
186Ibid., para. 117.
187Brazil's appellant's submission, para. 165.
188European Communities' appellee's submission, para. 136.
189Brazil's response to questioning at the oral hearing.
190Panel Report, para. 7.310.
191Panel Report, para. 7.310.
192Brazil's statement at the oral hearing.
193Panel Report, para. 7.337.
194Provisional Regulation, recital 160.
195The "known factor[
] other than the dumped imports" at issue has been labelled in
various ways throughout these proceedings, including "margins analysis" (Panel
Report, para. 7.361; Brazil's appellant's submission, paras. 181, 192, and 198;
European Communities' appellee's submission, paras. 156, 163, 171, and 172),
"cost efficiency" (Panel Report, para. 7.361; Brazil's appellant's submission,
paras. 184 and 191), and "comparative advantage" (Ibid., para. 7.361;
Brazil's appellant's submission, para. 184; Japan's third participant's
submission, paras. 12 and 15). At the oral hearing, Brazil confirmed that when
it referred to the causal factor that the European Commission had failed to
examine, Brazil was referring to "the cost of production difference [between the
European Communities producers and the Brazilian exporter], especially the high
cost of production of the European industry". (Brazil's response to questioning
at the oral hearing)
196Panel Report, para. 7.361.
197Ibid. Brazil also identified before the Panel the difference in market
perception as a "known factor[
] other than the dumped imports" that required examination by the
European Commission during the investigation. (Ibid., paras. 7.350 and
7.357) Whether the European Commission should have examined the difference in
market perception pursuant to Article 3.5 is not an issue appealed by Brazil.
198Panel Report, para. 7.362.
199Ibid., paras. 7.350 and 7.361.
200Ibid., para. 7.362.
201Ibid. (emphasis added)
202Ibid.
203Brazil's appellant's submission, para. 195.
204Brazil's response to questioning at the oral hearing.
205Brazil's appellant's submission, para. 191; Brazil's response to questioning
at the oral hearing. See also, supra, para. 33.
206European Communities' appellee's submission, para. 166.
207European Communities' response to questioning at the oral hearing.
208European Communities' appellee's submission, paras. 171 and 174-176.
209Panel Report, para. 7.362.
210Before the Panel, Brazil challenged the European Commission's refusal to
adjust the Brazilian exporter's prices when evaluating the price effects of
dumped imports. (Ibid., para. 7.286) While addressing this challenge, the
Panel evaluated the factual conclusions of the European Commission with respect
to the differences in cost of production and market perception between black
heart (imported from Brazil) and white heart (produced by European Communities
producers) variants of the product under investigation. (Ibid., paras.
7.294-7.295) The Panel rejected Brazil's challenge to the European Commission's
factual findings, concluding as follows:
(Panel Report, para. 7.296)
211Panel Report, para. 7.362.
212The Panel found:
In light of these findings, these factors, although "known" to
them in the context of the dumping and injury analysis, would not be
a "known" causal factor, that is, a factor that the European
Communities was aware would possibly be causing injury to the
domestic industry.
(Ibid.)
213It is of no consequence for our analysis in this case that the alleged
difference in the cost of production between the Brazilian exporter and the
domestic industry was found to be "minimal" rather than some other level, a
factual issue decided by the Panel. See supra footnote 210. What is
dispositive of this issue, in our view, is that the European Commission
effectively rejected the claim of the Brazilian exporter (properly, in
the view of the Panel) that there was a difference in the cost of production.
214Panel Report, paras. 7.367-7.368.
215Panel Report, para. 7.369.
216European Communities' appellee's submission, para. 181. (emphasis added)
217Ibid., para. 182.
218Ibid.
219Ibid., para. 187.
220European Communities' second oral statement before the Panel, para. 146.
221Brazil's appellant's submission, para. 214.
222Brazil's appellant's submission, para. 211. (emphasis added)
223Brazil's response to questioning at the oral hearing.
224European Communities' appellee's submission, para. 193.
225Ibid., paras. 195-196.
226Ibid., para. 199.
227Appellate Body Report, US - Hot Rolled Steel, paras. 223 and 226.
228Ibid., para. 228.
229Appellate Body Report, US - Hot Rolled Steel, para. 224. We made a
similar observation when discussing the non-attribution requirement under the
Agreement on Safeguards:
We emphasize that the method and approach WTO Members choose to carry
out the process of separating the effects of increased imports and the
effects of the other causal factors is not specified by the Agreement
on Safeguards.
(Appellate Body Report, US - Lamb, para. 181)
230Appellate Body Report, US - Hot-Rolled Steel, para. 223.
231Ibid.
232We therefore agree with the Panel's statement that:
We are certainly aware of the theoretical possibility that a
causation methodology which separates and distinguishes between
individual injury factors may not accommodate the possibility that
multiple "insignificant factors" might collectively constitute a
significant cause of injury such as to sever the link between dumped
imports and injury. (original emphasis)
(Panel Report, para. 7.369)
233Provisional Regulation, recital 162.
234Panel Report, para. 7.367.
235Ibid., paras. 7.367-7.368.
236The European Communities disagrees with the description by the Panel of the
European Commission's evaluation of the factors as having been undertaken solely
on an individual basis. (European Communities' appellee's submission,
paras. 188-191) The European Communities points to the following paragraph as
evidence of its consideration of the collective impact of other causal
factors:
It is therefore provisionally concluded that the dumped imports
originating in Brazil, the Czech Republic, Japan, China, Korea and
Thailand have caused material injury to the Community industry. Any
other factors that may have contributed to the injurious situation of
the Community industry, in particular imports from third countries, are
such that they cannot be considered to break the causal link
between the dumping and the material injury found in light of the strong
increase in the imports [c]oncerned made at particularly low prices.
(emphasis added)
(Provisional Regulation, recital 177) The European Communities, however, has
not appealed the Panel's description of the European Commission's causality
methodology as applied in this case.
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