7.125 Brazil asserts that Article 12.1 requires that, in addition to a public notice, a notification (to certain interested parties and the exporting Member) be given when the authorities are satisfied that there is sufficient evidence to justify the initiation of an investigation. The public notice was given when Resolution No. 11 was issued announcing the initiation of the investigation on 25 January 1999. Brazil asserts that it was notified of the initiation on 1 February 1999. Five Brazilian exporters (Avipal, Frangosul, Nicolini, Sadia, and Seara) were also notified of the initiation through communications from the CNCE and the DCD dated 10 and 16 February 1999, respectively. Brazil asserts that another group of seven exporters (Catarinense, CCLP, Chapec�, Comaves, Minuano, Penabranca and Perdig�o) were only notified of the initiation of the investigation in September 1999, even though at least five of those seven exporters were known to the CNCE and the APCDS in January 1999. In this regard, Brazil notes that the Report of 7 January 1999 listed ten Brazilian exporters, including Catarinense, Chapec�, Comaves, Minuano and Perdig�o. Brazil argues that the September 1999 notification to these seven exporters did not comply with the requirement under Article 12.1 because it was not made "when the authorities [were] satisfied that there [was] sufficient evidence to justify the initiation of an anti-dumping investigation".

7.126 Argentina asserts that Resolution No. 11 initiating the investigation was published in the Official Bulletin on 25 January 1999. Argentina asserts that it notified Brazil of the initiation of the investigation through a Note dated 1 February 1999 addressed to the Mission of Brazil in Argentina. In this communication, Argentina requested the cooperation of the Brazilian authorities "in identifying the interested producers/exporters in that investigation." Argentina asserts that the DCD notified the exporters Avipal, Frangosul, Nicolini, Sadia and Seara of the initiation of the investigation on 16 February 1999. Argentina asserts further that, through the questionnaire response of an importer dated 21 April 1999, it learned of the interest of seven other Brazilian exporters in the investigation. These exporters were Catarinense, CCLP, Chapec�, Comaves, Minuano, Penabranca and Perdig�o. Argentina asserts that the importer requested that the Argentine authorities contact those exporters. As a result of this request, the DCD contacted Catarinense, CCLP, Chapec�, Comaves, Minuano and Perdig�o on 15 September 1999 and requested information from them. Argentina argues that the investigating authority satisfied the Article 12.1 requirement of public notice and notification to interested parties (exporter or foreign producer) known to have an interest, such as the Government of Brazil, and that it would have been impossible to notify parties whose interest in the investigation was not known. Argentina asserts that it requested the assistance of the Government of Brazil in informing potential interested parties of the initiation of the investigation. Argentina argues that notification must be given to those parties that are considered interested within the meaning of Article 6.11, and that are known and identified in such a way as to make such notification possible and identified as interested parties. Regarding Brazil's statement that Argentina implicitly acknowledged that it knew of certain exporters by listing them in the Report of 7 January 1998, Argentina stated that those exporters had not been sufficiently identified to allow the relevant questionnaires to be sent to them.

7.127 Brazil asserts that Article 12.1 imposes the obligation to notify interested parties on the investigating authorities of the importing Member, and not the authorities of the exporting Member. Brazil notes that Argentina tries to share this obligation with Brazil when it states that it notified the Brazilian authorities and requested their cooperation to identify the producers and exporters. Brazil asserts that it never received any communication from the Argentine authorities requesting such information concerning the five specific exporters identified in the Report of 7 January 1998. Brazil further argues that Argentina's argument that the authority must notify only those parties that consider themselves interested in the investigation, within the meaning of Article 6.1.1, is untenable. Brazil asks how a party can present itself as an interested party if it does not even know that an investigation has been initiated? In the view of Brazil, that is exactly why Article 12.1 requires the authority to notify interested parties known to them.

(b) Evaluation by the Panel

7.128 The issue before us is whether or not Argentina complied with its notification obligations under Article 12.1 of the AD Agreement in respect of Catarinense, CCLP, Chapec�, Comaves, Minuano, Penabranca and Perdig�o. As always, we start with the relevant provision in the AD Agreement, which in this case is Article 12.1. This provides in relevant part:

7.129 Article 12.1 requires the authorities of the importing Member to notify the initiation of an investigation to the WTO Member or Members the products of which are subject to such investigation. Article 12.1 also requires those authorities to notify "other interested parties known to the investigating authorities to have an interest" in the investigation. As far as the timing of the notification is concerned, Article 12.1 provides that the notification shall take place when the authorities of the importing Member are satisfied that there is sufficient evidence to justify the initiation of an anti-dumping investigation pursuant to Article 5.

7.130 In addressing this issue, we must first establish whether or not the relevant exporters were "interested parties" in the meaning of Article 12.1. If they were, we must then examine whether or not their interest was known to the investigating authority.

7.131 The phrase "interested parties" is defined in Article 6.11 of the AD Agreement. We consider that it is appropriate to be guided by the definition set forth in Article 6.11 since that definition is expressly provided for the purposes of the AD Agreement as a whole, including therefore Article 12.1. According to Article 6.11(i), exporters or foreign producers of a product subject to investigation constitute "interested parties". In an attachment to CEPA's application of 2 September 1997, a table sourced from the Associa��o Paulista de Avicultura listed Catarinense, CCLP, Chapec�, Comaves, Minuano, Penabranca and Perdig�o as exporters to Argentina of whole poultry.¹⁰⁸ Accordingly, based on the evidence before it at the time of initiation, there is a prima facie case that those exporters were "interested parties" within the meaning of Article 6.11 and, therefore, Article 12.1. By definition, "interested parties" necessarily have an interest in the investigation. The evidence before the investigating authority at the time of initiation further establishes prima facie that those exporters' interest was known to the investigating authority, since those exporters were expressly identified in that evidence. There is therefore prima facie evidence that those exporters were "interested parties known to the investigating authorities to have an interest" in the investigation. Accordingly, there is a prima facie case that those exporters should have been notified in accordance with Article 12.1.

7.132 Argentina asserts that it was not able to notify those exporters because the requisite contact details were not available to its authorities. In support, Argentina refers to a letter dated 1 February 1999 to the Brazilian Embassy in Argentina, in which the authorities requested Brazil's cooperation "in identifying the interested producers/exporters in this investigation and providing them with the attached requests for information, in order that they should supply the Argentine Government with the details requested on the product under investigation".¹⁰⁹ In our view, this letter does not support Argentina's argument that it could not make an Article 12.1 notification to the above-mentioned exporters because it did not have the requisite contact details. Instead, this letter demonstrates to us that the Argentine authorities failed to treat the above-mentioned exporters as "known � to have an interest" in the investigation. If it had treated them thus, the letter would have specifically identified those exporters, and specifically requested contact details for them. Instead, the letter contained only a general request for assistance, without any reference to the specific exporters at issue. We accept that there may be circumstances in which an investigating authority may not have sufficient information to allow it to notify all interested parties known to have an interest in an investigation. In this sense, the fact that an exporter is "known" by the investigating authority to have an interest in an investigation does not necessarily mean that sufficient details concerning the exporter are "known" to the investigating authority such that it may make the Article 12.1 notification. In other words, knowledge of an exporter's interest in an investigation does not necessarily imply knowledge of contact details regarding that exporter. In such circumstances, however, we consider that the nature of the Article 12.1 notification obligation is such that the investigating authority should make all reasonable efforts to obtain the requisite contact details. Sending a letter with only a very general request for assistance, without specifying the exporters for which contact details are required, does not satisfy the need to make all reasonable efforts.

7.133 Argentina also submits that "the initiation of an investigation is a general administrative procedure and published as such in the Official Journal, which constitutes sufficient notification of general scope".¹¹⁰ In other words, Argentina suggests that, by fulfilling the requirement to publish a notice of initiation of an investigation, it has fulfilled the obligation to notify. We do not agree. Article 12.1 clearly imposes two separate obligations, one to notify and another to give public notice. These separate obligations must both be fulfilled in any given investigation. We therefore reject Argentina's argument.

7.134 We have concluded that Catarinense, CCLP, Chapec�, Comaves, Minuano, Penabranca and Perdig�o should have been notified in accordance with Article 12.1. Although questionnaires were sent to some of these exporters on 15 September 1999, we do not understand Argentina to argue that this communication constitutes notification for the purpose of Article 12.1. In any event, we are of the view that a communication made approximately eight months after initiation would not satisfy the requirements of Article 12.1. Article 12.1 provides that notification must be made "when" the authorities are satisfied that there is sufficient evidence to justify initiation. The word "when" is defined inter alia as �as soon as�.¹¹¹ Thus, Article 12.1 requires notification as soon as the authorities are satisfied that there is sufficient evidence to justify initiation. A notification made approximately 8 months after initiation clearly does not satisfy this requirement of expediency.

7.135 In light of the above, we conclude that Argentina violated Article 12.1 of the AD Agreement by failing to notify Catarinense, CCLP, Chapec�, Comaves, Minuano, Penabranca and Perdig�o of the initiation of the investigation.

6. Failure to Give 30 Days to Reply to the Questionnaire / Failure to Provide the Injury
    Questionnaire - Claim 11

7.136 Brazil alleges that Argentina violated Article 6.1.1 of the AD Agreement because (i) the investigating authority gave CCLP, Catarinense, Chapec�, Comaves, Minuano, Perdig�o and Penabranca only 20 days to reply to the questionnaire and (ii) these exporters never received the injury questionnaire issued by the CNCE.

7.137 Argentina acknowledges that the DCD contacted certain Brazilian exporters on 15 September 1999.¹¹² In these communications, the DCD requested those Brazilian exporters to submit evidence on, inter alia, sales prices in the domestic market, export prices and costs.¹¹³ Argentina asserts that the DCD sent the questionnaire forms for the sole purpose of responding adequately to the general requirements and enabling exporters to attach any other information that they considered important.¹¹⁴ According to Argentina, only one of those seven exporters, Catarinense, provided a reply to the questionnaire. Argentina alleges that it not only granted the Brazilian exporters a period of more than 30 days to reply to the questionnaires, but also acceded to their requests for extension by granting them whenever practicable.¹¹⁵

7.138 This claim concerns communications allegedly sent to the following seven exporters: CCLP, Catarinense, Chapec�, Comaves, Minuano, Penabranca and Perdig�o. There are two issues before us. First, we will have to determine whether the DCD failed to give certain specific Brazilian exporters 30 days to reply to the dumping questionnaire it sent to them.¹¹⁶ The second issue before us concerns whether the CNCE's injury questionnaire should also have been sent to the seven exporters identified by Brazil.

7.139 We start our analysis of the first issue by examining the text of Article 6.1.1 of the AD Agreement:

7.140 On its face, Article 6.1.1 is straightforward. In accordance with the first sentence of that provision, exporters or foreign producers receiving questionnaires used in an anti-dumping investigation must be given at least 30 days for reply. Since the second sentence of Article 6.1.1 envisages extensions of the 30-day period provided for in the first sentence of Article 6.1.1, that 30-day period is an absolute minimum that must be granted to exporters from the outset. In other words, any extension is in addition to the initial (minimum) 30-day period provided for in the first sentence.

7.141 Brazil claims that the requests for information that Catarinense, CCLP, Chapec�, Comaves, Minuano and Perdig�o received on 15 September 1999 constitute questionnaires falling within the scope of Article 6.1.1, and that there was a violation of that provision because the exporters were only provided 20 days to respond to those questionnaires. Argentina does not deny that on 15 September 1999 it requested information from those exporters. According to Argentina, the information requested "consisted, inter alia, of sales prices in the domestic market, export prices and costs."¹¹⁷ Nor does Argentina deny that it sent those exporters a copy of the questionnaire sent out to other exporters / foreign producers at the beginning of its investigation. Argentina asserts that it did so "for the sole purpose of responding adequately to the general requirements and enabling exporters to attach any other information that they considered important."¹¹⁸ Only one of the exporters contacted on 15 September 1999 responded to the DCD's request for information. That exporter did so by responding to the 11 sections of the questionnaire attached to the DCD's request for information. That exporter therefore clearly understood that it had been asked to respond to the DCD's questionnaire. In these circumstances, we consider that the requests for information sent to Brazilian exporters on 15 September 1999 were in the form of "questionnaire[s]" within the meaning of Article 6.1.1 of the AD Agreement.

7.142 With respect to the time given to CCLP, Catarinense, Chapec�, Comaves, Minuano, and Perdig�o to reply to the questionnaires, we should note that there is some uncertainty regarding Argentina's argument on this issue. On the one hand, in response to Question 31 from the Panel, Argentina stated that "[e]xporters have a right to the 30 days, and the 30 days are granted. The alternative examined by the Panel of initially granting a lesser period and then increasing the number of days to 30 does not reflect the system applied by Argentina. What the Argentine authority stated was that in addition to the 30 days, it granted the requested extensions. It is understood that the time-limits granted for responding to the requests should be in keeping with the nature and complexity of those requests. Thus, the initial 30-day period for replying in full to the basic investigation questionnaire at the outset is appropriate." On the other hand, the communications sent to those Brazilian exporters show that they were given 20 days to send their replies to the investigating authority.¹¹⁹ This has not been denied by Argentina. Based on the facts before us, we are therefore in no doubt that the DCD only allowed an initial period of 20 days for the relevant questionnaire responses.

7.143 Argentina also argues that the period allowed for the relevant questionnaire responses was sufficient for the purpose of Article 6.1.1 because only one of the exporters contacted by the DCD on 15 September 1999 (i.e., Catarinense) replied to the questionnaire; the others either did not export the product concerned to Argentina (i.e., CCLP and Chapec�) or did not show an interest in the investigation and did not submit any information (i.e., Comaves, Minuano, and Perdig�o).¹²⁰ We fail to see the relevance of this fact. The requirement in the first sentence of Article 6.1.1 is that exporters or producers shall be given at least 30 days to reply to the questionnaire, irrespective of whether or not they actually choose to do so.

7.144 Since the DCD failed to allow the exporters contacted on 15 September 1999 an initial period of at least 30 days to respond to the questionnaires sent by the DCD, Argentina failed to comply with the requirement set forth in the first sentence of Article 6.1.1.

7.145 The second question before us is whether or not Article 6.1.1 of the AD Agreement required the CNCE to send its injury questionnaire to the seven exporters identified by Brazil.¹²¹ We read the first sentence of Article 6.1.1 to mean that if questionnaires are sent to exporters or foreign producers, they shall be given at least 30 days for reply. The first sentence of that Article does not, however, address which questionnaires should be sent to exporters or foreign producers. Accordingly, the failure to send a particular questionnaire to exporters or foreign producers does not constitute a violation of Article 6.1.1.

7.146 Finally, Argentina asserts that Brazil did not challenge in the course of the investigation the circumstances which form the basis of the claim before us.¹²² However, the fact that an argument was not raised in the context of the investigation, in particular an argument relating to a violation of a procedural provision in the AD Agreement, does not preclude a party from raising it at a later stage in a WTO panel proceeding.¹²³ We note that Argentina has not argued that this issue is not properly before us, or that it falls outside our terms of reference.

7.147 In light of the foregoing, we conclude that Argentina violated Article 6.1.1 of the AD Agreement because it failed to give Catarinense, CCLP, Chapec�, Comaves, Minuano, and Perdig�o at least 30 days to reply to the DCD's dumping questionnaire. We further conclude that Argentina did not violate Article 6.1.1 of the AD Agreement by not sending the CNCE's injury questionnaire to the exporters identified by Brazil.

7.148 Brazil alleges that, because the DCD and the CNCE did not inform Catarinense, CCLP, Comaves, Chapec�, Minuano, Penabranca and Perdig�o of the initiation of the investigation and of the need to submit responses, those seven exporters did not have evidence that was presented in writing by other interested parties made promptly available to them. In the view of Brazil, evidence could not be made readily or immediately available to these exporters if they were notified to participate eight months after the investigation had been initiated and after a preliminary determination of dumping, injury and causal link had been made. Brazil further argues that companies that are aware of an ongoing investigation qualify as "interested parties participating in the investigation", even if they do not show an interest in the investigation. Brazil asserts that Catarinense, CCLP, Comaves, Chapec�, Minuano, Perdig�o and Penabranca were not aware of the ongoing investigation until they were notified by the authorities, eight months after it had been initiated.

7.149 Argentina replies that the DCD and the CNCE met the requirement in Article 6.1.2 because they promptly made available to the interested parties participating in the investigation evidence presented in writing by other interested parties. Argentina asserts that the DCD and the CNCE could hardly have made available evidence presented in writing by the other interested parties participating in the investigation to the seven Brazilian exporters if those exporters were not part of the investigation. Argentina's obligation was to make available promptly to the other interested parties participating in the investigation evidence presented in writing by one interested party, which Argentina asserts the DCD and the CNCE did.

7.150 The issue before us is whether the investigating authorities were required to make available evidence presented by other interested parties to Catarinense, CCLP, Comaves, Chapec�, Minuano, Penabranca and Perdig�o.

7.151 Article 6.1.2 of the AD Agreement reads as follows:

7.152 We understand Article 6.1.2 to impose an obligation on investigating authorities to make evidence available promptly to other interested parties participating in the investigation.

7.153 We note that Article 6.1.2 does not refer to "interested parties" but to "interested parties participating in the investigation." Thus, the term "interested parties" is qualified by the term "participating".¹²⁴ In our view, had the drafters intended to extend the obligation imposed by Article 6.1.2 to all interested parties as defined in Article 6.11 of the AD Agreement, they would not have included the term "participating". We must first determine what the ordinary meaning of the term "participating" is. We note that Article 6.1.2 uses the term "parties participating in the investigation." The ordinary meaning of the term �participate� is "share or take part (in)".¹²⁵ This definition of the term "participating" suggests to us that, in order to participate in an investigation, a party must undertake some action.¹²⁶ In our view, the mere knowledge by an interested party of an ongoing investigation does not make that party an interested party "participating in the investigation" within the meaning of Article 6.1.2 unless it actively takes part in the investigation. Thus, we have to examine in light of the record before us whether the exporters identified by Brazil were actively taking part in the investigation. In this regard, Brazil asserts that those exporters were not even aware of the investigation until they were contacted by the DCD on 15 September 1999.¹²⁷ We consider that, if they were not even aware of the investigation, they could not possibly have participated in that investigation within the meaning of Article 6.1.2 of the AD Agreement.¹²⁸ Since the relevant exporters were not "participating" in the investigation, the investigating authority was not required to promptly make evidence presented in writing by other interested parties available to them.

7.154 For the foregoing reasons, we reject Brazil's claim that Argentina violated Article 6.1.2 by failing to promptly make available to Catarinense, CCLP, Comaves, Chapec�, Minuano, Penabranca and Perdig�o evidence presented in writing by other interested parties involved in the investigation.

7.155 Brazil argues that Catarinense, CCLP, Comaves, Chapec�, Minuano, Penabranca and Perdig�o did not have a full opportunity to defend their interests in violation of Article 6.2 of the AD Agreement. Brazil asserts that those exporters were only given 20 days to reply to the questionnaire, in breach of Article 6.1.1. Brazil further asserts that the CNCE did not notify those exporters of the initiation of the investigation, nor provide them with injury questionnaires. Finally, Brazil argues that, since those exporters were not notified of the investigation and of the need to submit replies to the questionnaire until eight months after the initiation of the investigation, evidence presented by other interested parties was not made available promptly to them.

7.156 Argentina replies that, once the investigation had started, Argentina made available the documentation relating to the proceedings at issue to interested parties such as the exporters and the Brazilian authorities. Argentina asserts that authorized interested parties could consult the file and obtain a copy thereof at all times. Any other party that considered itself as having an interest therein could present itself at the offices of the investigating authority with a request to consult the file. Regarding the issue of sending the notification of the initiation to certain exporters on 15 September 1999, Argentina argues that the obligation to give public notice and to notify the interested parties applies only to parties known to have an interest in the investigation. Argentina asserts that it would have been impossible to notify parties whose interest therein was not known. In this regard, Argentina asserts that the investigating authority notified the Government of Brazil of the initiation of the investigation and requested its cooperation in order to identify the interested producers/exporters. Argentina asserts that the Brazilian authorities did not inform the investigating authority of the alleged interest of the exporters which were notified on 15 September 1999 and whose right of defence was, according to Brazil, impaired. Argentina concludes that the way in which the investigating authorities provided access to the proceedings for interested parties clearly did not in any way impair the right of access to the records and even less the right of defence.

7.157 Brazil has raised three claims under Article 6.2 of the AD Agreement. One claim concerns the alleged failure by the CNCE to notify certain exporters and provide them with the injury questionnaire sent to other exporters. Upon close examination, we find that there is no reference to this claim in Brazil's Request for Establishment of this Panel.¹²⁹ Accordingly, this claim falls outside our terms of reference.

7.158 With regard to the two Article 6.2 claims that are within our terms of reference, the issue before us is whether Catarinense, CCLP, Comaves, Chapec�, Minuano, Penabranca and Perdig�o did not have a full opportunity for the defence of their interests because (a) the DCD did not give them at least 30 days to reply to the dumping questionnaire, and (b) the DCD and the CNCE did not make available promptly to them evidence presented by other interested parties.

7.159 Article 6.2 of the AD Agreement provides in relevant part:

7.160 The parties agree that, while Article 6.2 clearly imposes a general duty on investigating authorities to ensure that interested parties have a full opportunity throughout an anti-dumping investigation for the defence of their interests, it provides no specific guidance as to what steps investigating authorities must take in practice.¹³⁰ We agree.¹³¹ We also agree with previous panels¹³² and the Appellate Body¹³³ in that we do not consider it necessary for us to address claims under Article 6.2 when we have already made findings concerning the conduct allegedly violating Article 6.2 under other, more specific provisions of the AD Agreement.

7.161Accordingly, we shall only consider Brazil's claims under Article 6.2 to the extent that we have not made findings regarding the factual situation at issue under other provisions of the AD Agreement which specifically address that situation. Regarding Brazil's argument that the DCD did not give CCLP, Catarinense, Chapec�, Comaves, Minuano, Penabranca and Perdig�o at least 30 days to reply the dumping questionnaire, we recall that we made findings under Article 6.1.1.¹³⁴ We have also made findings regarding Brazil's contention that the DCD and the CNCE did not make available promptly to Catarinense, CCLP, Comaves, Chapec�, Minuano, Penabranca and Perdig�o evidence presented by other interested parties under Article 6.1.2.¹³⁵ Accordingly, we have already made findings regarding the factual situations forming the basis of Brazil's Article 6.2 claims under other provisions of the AD Agreement which specifically address those factual situations.

7.162 For the foregoing reasons, we consider that it is not necessary for us to make separate findings with respect to Brazil's Article 6.2 claims.

7.163 Brazil argues that the investigating authority failed to provide the text of the application to the exporters and to the Government of Brazil, thus making it impossible for the exporters to prepare arguments in the defence of their interests and to devise a strategy to defend against the allegations made by petitioner in the application. Brazil argues that the requirement under Article 6.1.3 of the AD Agreement with respect to known exporters and authorities of the exporting Member cannot be met by simply making the application available to the exporters and to the authorities of the exporting Member. In the view of Brazil, that requirement can only be met if the investigating authority actively provides the full text of the written application to the exporting Member and to the exporters involved in the investigation. Brazil asserts that its interpretation of the obligation imposed by Article 6.1.3 is confirmed by the fact that the same provision requires that the text of the application be "made available" to "other interested parties involved." In the view of Brazil, if the requirement imposed on the investigating authority was to be understood as being the same for the exporters and exporting Member as that for other interested parties, there would be no need for the use of different language in Article 6.1.3 of the AD Agreement. Brazil also argues that, even if "provide" had to be interpreted as "make available", the investigating authority would have violated Article 6.1.3 because the notification that the full text of the written application was available was not sent "as soon as an investigation has been initiated."

7.164 Argentina replies that Article 6.1.3 does not require an investigating authority "enviar", i.e., to "send", the full text of the application but "facilitar", i.e., to "provide", it to the known exporters and to the authorities of the exporting Member. Argentina asserts that, once the investigation was initiated, it made the records of the proceedings available to authorized interested parties. In so doing, Argentina states that it met the requirement set forth in Article 6.1.3. Argentina asserts that, considering that the Brazilian authorities were notified on 1 February 1999 and the notice of initiation of the investigation against poultry from Brazil was published in the Official Bulletin on 25 January 1999, the notification to the Government of Brazil took place five working days after the date of initiation of the investigation.

7.165 Brazil asserts that the word "facilitar" in the Spanish version of Article 6.1.3 of the AD Agreement should be understood to mean "proporcionar o entregar", a definition which is entirely compatible with that of the verb to "provide" in the English version of the AD Agreement.

7.166 The issue before us concerns the interpretation of the obligation imposed by the term "provide" in the first sentence of Article 6.1.3.

7.167 The text of Article 6.1.3 reads as follows:

7.168 The obligation in Article 6.1.3 is clear. Subject to the proviso of protection of confidential information, investigating authorities must provide the text of the written application to the known exporters and to the authorities of the exporting Member. They must also make it available, upon request, to other interested parties. This obligation applies as soon as the investigation has been initiated.

7.169 Argentina is of the view that it satisfied its "obligation [under Article 6.1.3 of the AD Agreement] by making the records of the proceedings available to authorized interested parties."¹³⁶ In the view of Argentina, the term "facilitar" means "to permit access to a thing or element that is of interest to the other party".¹³⁷ In other words, in the view of Argentina the verb to "provide" in Article 6.1.3 has the meaning of permitting access to a thing or element that is of interest to the other party. We note that the term "provide" is defined as, inter alia, "supply; furnish".¹³⁸ "Provide" might consequently be understood as supply or furnish the text of the application. Bearing this definition in mind, we consider that the term "provide" would require a positive action on the part of the investigating authority akin to that of furnishing or supplying something (i.e., the full text of the application) to someone (i.e., known exporters and authorities of the exporting Member). Therefore, we cannot agree with Argentina that the term "provide" in the English text of the AD Agreement or "facilitar" in its Spanish text can be interpreted as meaning "permitting access". In our view, an investigating authority cannot comply with the obligation to "provide the (�) application (�) to the known exporters and to the authorities of the exporting Member" simply by permitting them access to that application.

7.170 Our interpretation is confirmed by the words chosen by the drafters of Article 6.1.3. In this regard, we note that Article 6.1.3 provides for two different obligations, depending on the party concerned. Article 6.1.3 provides that the full text of the written application must be provided to the known exporters and to the authorities of the exporting Member. With respect to other interested parties involved, that provision imposes the obligation on the investigating authority to make the application available to those other interested parties. In our view, with the use of different verbs in the first sentence of Article 6.1.3, "provide" on the one hand and "make available" on the other, the drafters intended to impose different obligations on investigating authorities depending on the party concerned. The first obligation requires a positive action on the part of the investigating authority, while the second envisages only a passive act.

7.171 Argentina argues further that it understands the term "facilitar" in the Spanish text of Article 6.1.3, on the basis of the accepted meaning in Spanish, as meaning to permit access to a thing or element that is of interest to the other party.¹³⁹ "Facilitar" is defined inter alia as "proporcionar o entregar", i.e. to "give".¹⁴⁰ The term "facilitar" in the Spanish text might therefore be understood to require giving the full text of the written application to the known exporters and to the authorities of the exporting Member. This is consistent with our conclusion of the meaning of the term "provide" in the English text of the AD Agreement. This conclusion is again confirmed by the choice of the words of the drafters in the Spanish text of Article 6.1.3. We found that the obligation imposed on the investigating authority with respect to known exporters and the authorities of the exporting countries is to "facilitar" the full text of the application. By contrast, regarding other interested parties involved, Article 6.1.3 provides that "las autoridades lo [el texto completo de la solicitud escrita] pondr�n a disposici�n de las otras partes interesadas intervinientes que lo soliciten", i.e., the authorities shall make it [the full text of the application] available, upon request, to other interested parties involved. An analysis of the Spanish text of Article 6.1.3 therefore does not support Argentina's position. For this reason, the argument of Argentina must fail.

7.172 We must next examine whether Argentina actively "provided" the full text of the application to the known exporters and the Brazilian authorities. Brazil asserts that the investigating authority never provided known Brazilian exporters and the Brazilian authorities the full text of the application.¹⁴¹ Argentina asserts that "[t]he Argentine authorities satisfied that obligation by making the records of the proceedings available to authorized interested parties."¹⁴² Through this statement, Argentina acknowledges that the investigating authority merely made the full text of the written application available to the known exporters and to the Brazilian authorities. This, however, does not meet the requirement to actively "provide" the written application in the sense of Article 6.1.3. Finally, we examined the record of the investigation as presented to us.¹⁴³ We found no indication that the Argentine authorities provided the text of the application to known exporters and the authorities of Brazil. We consider therefore that Argentina did not provide the full text of the application to the known Brazilian exporters and to the authorities of the exporting Member.

7.173 Having determined that Argentina did not actively provide the full text of the written application to known Brazilian exporters and to the Brazilian authorities, we find that Argentina acted inconsistently with its obligation under Article 6.1.3 of the AD Agreement.

7.174 These claims concern the DCD's use of "facts available" within the meaning of Article 6.8 of the AD Agreement, and relate to the DCD's rejection of certain data submitted by exporters.

7.175 Brazil challenges the DCD's determination that there were differences in the physical characteristics of poultry sold in Brazil and Argentina respectively, despite Avipal, Frangosul and Sadia informing the DCD through their questionnaire responses that poultry sold to Argentina was identical to the poultry sold in Brazil. Brazil asserts that Catarinense only reported a difference in respect of broiler poultry, in the sense that its broiler poultry sold in Argentina did not contain head and feet, while its broiler poultry sold in Brazil contained head but not feet. Brazil asserts that the relevant information was submitted by the exporters within a reasonable period and that the DCD did not question the exporters on that information. Brazil alleges that the questionnaire did not specify that information on the product description required supporting documentation. In addition, Brazil asserts that, throughout the investigation, the DCD never requested any supporting information in order to verify the product description reported by those exporters.

7.176 Argentina asserts that it based its findings on all information which was verifiable and appropriately submitted. Argentina acknowledges that the exporters and the Brazilian authorities commented on the justification of the adjustment for physical characteristic differences. However, Argentina asserts that those arguments were unsubstantiated by technical data. Argentina also contends that the appropriateness of the adjustment is further demonstrated by the fact that those comments do not question the need for such adjustment. Argentina also acknowledges that the DCD received comments concerning the incidence of freezing and/or chilling at the time of determining the normal value for the product concerned. However, Argentina alleges that those comments were not supported with evidence either.

7.177 Brazil refers to the Argentina - Ceramic Tiles panel finding that an investigating authority may not disregard information and resort to facts available on the grounds that a party has failed to provide sufficient supporting documentation in respect of information provided unless the investigating authority has clearly requested that the party provide such supporting documentation. Reading the general instructions in the questionnaire, Brazil does not believe that the DCD provided sufficient information on the precise supporting documentation that it expected to receive from the exporters regarding product description / product differences. Brazil also asserts that submitting supporting documentation for all the information provided in the questionnaire response would impose an unreasonable burden on the exporters and make it impossible for them to reply within the 30-day period.

7.178 This claim concerns the DCD's rejection of export price data reported by four exporters. Brazil asserts that Avipal, Catarinense, Frangosul and Sadia submitted information on export price in their questionnaire responses. Brazil contends that the last two companies submitted export price data for individual export transactions, with respective invoices. In so doing, Brazil argues that the four exporters have provided information to the best of their abilities and have never refused to cooperate with the investigating authority. In spite of the above, Brazil asserts that information on export prices submitted by those exporters was rejected and information from the Secretariat for Agriculture, Fisheries and Food was used instead as a source to determine their export prices.

7.179 Argentina states that each time the parties supplied the information in the prescribed timely and appropriate fashion, the information was used. Argentina further asserts that the DCD had to resort to other sources of information in cases where any aspect of those requirements had not been met. With respect to Catarinense and Frangosul, Argentina asserts that the information was not used simply because, in Frangosul's case, the data provided was insufficient and was submitted after the deadline that would have permitted its use had expired¹⁴⁴ and, in Catarinense's case, because the data was insufficient.¹⁴⁵

7.180 According to Brazil, Argentina "explains, for the first time, that the information provided by Frangosul and Catarinense was not used simply because in Frangosul�s case the information submitted was insufficient and outside the deadline, and in the case of Catarinense because the information was considered insufficient." Brazil also asserts that this explanation given by Argentina seems to contradict Argentina's own response that Frangosul provided supporting documentation for the export prices reported in the investigation.

7.181 This claim concerns the DCD's decision not to use normal value submitted by two exporters. Brazil asserts that information required in order to determine normal value was submitted by Catarinense and Frangosul. However, it was not used by the DCD. To the extent that Argentina may argue that the information was not received within the deadlines established by the authority, Brazil asserts that a reasonable period will not be commensurate with the pre-established deadlines if the investigating authority has not acted in a reasonable, objective and impartial manner. In this regard, Brazil asserts that Frangosul was subject to �an excessive burden� in having to present dumping data from 1996 to 1999. Brazil also notes that Frangosul invited the investigating authority to verify the information in its response. Brazil contends that the late reply to the questionnaire by Catarinense was due to the fact that it was notified of the existence of the investigation approximately eight months after its initiation. Brazil also takes issue with the fact that the normal value used instead was for chilled poultry with head and feet. This in the view of Brazil was wrong because Catarinense and Frangosul had reported to have sold the product in the domestic market without head and feet.

7.182 Argentina asserts that the DCD analysed and examined all the information before it that was consistent with the principles enshrined in the AD Agreement, i.e., information that was properly provided within the required time-frame and was accompanied by proper evidence. Argentina alleges that, as was pointed out in the Final Affirmative Dumping Determination, the data received from Catarinense was presented on aggregate basis, without any supporting documentation. Moreover, Argentina asserts that Catarinense did not have authorized legal status. Regarding Frangosul, Argentina asserts that this exporter never presented any supporting documentation for domestic sales and that its final submission arrived beyond the deadline for analysing the information.

7.183 We note that the facts relating to Claim 15 are substantially identical to those which form the basis of our finding in respect of Claim 25. Since we concluded under Claim 25 that those facts gave rise to a violation of Article 2.4 of the AD Agreement, it is not necessary for us to rule on those same facts in the context of Claim 15.

7.184 The issue before us is whether the DCD was entitled to disregard export price data submitted by Avipal, Catarinense, Frangosul and Sadia. With respect to Catarinense, we find at paras. 7.190-7.193 below that the DCD was entitled to reject normal value data submitted by that exporter because it had failed to comply with an accreditation obligation. For the same reason, we find that the DCD was also entitled to reject the export price data submitted by that exporter. We therefore reject Brazil's Claim 17 in respect of Catarinense.

7.185 With regard to the DCD's treatment of the export price data submitted by Avipal, Frangosul and Sadia, we first note that Article 6.8 of the AD Agreement governs the use by an investigating authority in an anti-dumping investigation of the �facts available�. That Article provides as follows:

7.186Paragraphs 5 and 7 of Annex II to the AD Agreement are also relevant to our examination of this claim. They provide as follows:

7.187 In examining the record before us, we find that Avipal, Frangosul and Sadia did submit information on export prices.¹⁴⁶ Argentina asserts that it was justified in disregarding information which was not submitted in a timely manner, or in the appropriate fashion.¹⁴⁷ Argentina also argued during these proceedings that "[t]he implementing authority obviously cannot examine claims put forward by the parties without supporting documentation that can be verified."¹⁴⁸ We asked Argentina to prove that the investigating authority based its rejection of the relevant export price data on these reasons. Argentina replied that the explanation could be found in the Report of 4 January 2000 and in the Final Affirmative Dumping Determination, without pointing to any particular statement therein.¹⁴⁹ We therefore examined these documents, in particular Sections V.3 (Submissions made by Foreign Companies), VII.3 (Analysis of the Submissions made by Brazilian Exporting Companies after the Initiation of the Investigation) and VIII.2 (Elements for the Determination of the f.o.b. Export Price) thereof. We could not find in any of those sections references to any of the reasons provided by Argentina which could justify the DCD's decision to disregard the export price data received from Avipal, Frangosul and Sadia.¹⁵⁰ In light of these circumstances, we consider that Argentina's arguments concerning the reasons why the DCD rejected the export price data submitted by Avipal, Frangosul and Sadia constitute ex post rationalization which we should not take into account for the purpose of determining whether the Argentine authorities complied with their obligations under Article 6.8.¹⁵¹

7.188 In light of the above, we uphold Brazil's claim that Argentina violated Article 6.8 in rejecting the export price data submitted by Avipal, Frangosul and Sadia.

7.189 This claim concerns the DCD's rejection of normal value data submitted by Catarinense and Frangosul.

• Catarinense

7.190 Based on the record before us, we note that Catarinense was contacted by the DCD on 15 September 1999. Argentina acknowledges that it sent Catarinense a copy of the original questionnaire, to which Catarinense replied on 3 November 1999. Brazil asserts that information on normal value submitted by Catarinense should have been used as a basis for the determination of the normal value for this exporter. Argentina argues that the DCD was justified in disregarding data submitted by Catarinense because (a) this exporter had not accredited itself in accordance with domestic legislation,¹⁵² and (b) information on domestic prices was submitted in aggregated form and without supporting documentation.¹⁵³

7.191 We will examine first Argentina's argument that Catarinense had not accredited itself in accordance with domestic legislation. Argentina argues that, in accordance with Law No. 19,549 on Administrative Procedures, a company must have authorized legal status in order to appear before the DCD.¹⁵⁴ We note that the DCD informed that exporter that it had to have authorized legal status in conformity with Law No. 19,549 on 8 November 1999.¹⁵⁵ There is no evidence on the record to suggest that Catarinense pursued this matter with the DCD, or made any other attempt to comply with the accreditation obligation. The issue before us is therefore whether the DCD was justified in disregarding data submitted by Catarinense on the basis that it did not have authorized legal status. We do not find any provision in the AD Agreement which expressly disallows an investigating authority from imposing basic procedural requirements such as accreditation. We observe that paragraph 3 of Annex II to the AD Agreement provides that "[a]ll information which is (�) appropriately submitted so that it can be used in the investigation without undue difficulties (�) should be taken into account when determinations are made." We consider that the reference to the terms "appropriately submitted" is designed to cover inter alia information which is submitted in accordance with relevant procedural provisions of WTO Members' domestic laws. In our view, paragraph 3 of Annex II to the AD Agreement can be interpreted to mean that information not "appropriately submitted" in accordance with relevant procedural provisions of WTO Members' domestic laws may be disregarded. In the circumstances of this case, we consider that information submitted by Catarinense was not "appropriately submitted" within the meaning of paragraph 3 of Annex II to the AD Agreement because Catarinense had not complied with Argentina's accreditation requirements. Accordingly, the DCD was entitled to reject that information.

7.192 Citing a finding of the Guatemala - Cement II panel, Brazil argues that the DCD did not act in a reasonable, objective and impartial manner with respect to Catarinense. We disagree, since the DCD explicitly reminded Catarinense of the need to comply with the accreditation requirement. Brazil also refers to paragraphs 5 and 7 of Annex II to the AD Agreement in support of its claim. However, we fail to see how Catarinense could be said to have "acted to the best of its ability" (Annex II, paragraph 5), since it failed to respond in any way to the DCD's letter of 8 November 1999. Nor do we see the relevance of paragraph 7 of Annex II, since Brazil has failed to explain how the exercise of "special circumspection" by the DCD would have remedied the fact that Catarinense failed to comply with Argentina's accreditation requirement.

7.193 Nor can we agree with Brazil that normal value data provided by Catarinense was more accurate than the normal value data provided by the applicant on account of the particular product characteristics. In our view, once data from the exporter cannot be used in accordance with Article 6.8 and Annex II to the AD Agreement, an investigating authority is entitled to use information from other sources, including the applicant. The fact that, as argued by Brazil, information supplied by the applicant on normal value concerns a product (poultry with head and feet) which is not identical to that exported by Catarinense (poultry without head and feet) in our view does not impede the investigating authority's use of the applicant's information as long as a fair comparison is made. Brazil has not argued under this claim that the comparison was not fair. For this reason, we must reject Brazil's argument.

• Frangosul

7.194 We note that Frangosul was first contacted by the DCD on 16 February 1999. This exporter submitted a reply to the questionnaire on 27 April 1999, after the deadline initially provided by the DCD. With respect to normal value, Frangosul submitted information on sales in the domestic market corresponding to years 1996, 1997, 1998 and the first three months of 1999, reported on a monthly basis.¹⁵⁶ On 12 July 1999, the DCD requested documentation supporting sales made in the domestic market. On 19 August 1999, Frangosul replied that it was not possible to send copies of all invoices. Frangosul referred to the list of invoices already provided in its questionnaire response. On 12 October 1999, the DCD requested Frangosul to submit a list of invoices covering all transactions in the domestic market during the period of investigation.¹⁵⁷ In this communication, it is stated that the list of invoices submitted in the questionnaire response was incomplete. Frangosul failed to respond within the applicable deadline.¹⁵⁸ On 18 November 1999, the DCD renewed its request.¹⁵⁹ The required list was submitted by Frangosul on 30 December 1999, outside the second deadline established in DCD's communication of 18 November 1999.¹⁶⁰

7.195 Brazil asserts that Frangosul did submit the information "within a reasonable period". In support of its claim, Brazil cites the following portion of the US - Hot-Rolled Steel panel report:

7.196 In light of this report, Brazil asserts that "Article 6.8 suggests a degree of flexibility by authorities that involves consideration of all of the circumstances of a particular case." (emphasis in original)¹⁶² We agree with Brazil. However, in examining the facts in this case we are of the view that Frangosul did not submit "the necessary information within a reasonable period".¹⁶³ First, we note that there is no indication on the record that Frangosul informed the DCD of the difficulties of submitting documentary evidence regarding all domestic transactions until approximately seven months after the initiation of the investigation (19 August 1999). Other exporters, namely Avipal, Nicolini, Sadia and Seara, instead informed the investigating authority of such difficulties much earlier in the investigation.¹⁶⁴ We consider that Frangosul could and should have been aware of that problem much before 19 August 1999, and hence should have informed the DCD much before that date. Brazil argues that what is a "reasonable period" for the submission of data to an investigating authority will not, in all instances, be commensurate with pre-established deadlines set out in general regulations. We agree. However, we recall that the AD Agreement imposes a deadline for the conclusion of an investigation in Article 5.10. We consider that, if an investigation is to be completed in conformity with the timeframe provided for in Article 5.10, deadlines are indeed necessary, as recognized by the US - Hot-Rolled Steel panel. In the case at stake, we note that a complete list of all domestic sales transactions was requested on 12 October 1999. As no reply was received within the deadline provided, the DCD sent a reminder on 18 November 1999. Again, we note that the response was not provided within the second deadline set by the DCD. As Brazil acknowledges, the response to the 12 October request was finally submitted to the DCD on 30 December 1999,¹⁶⁵ i.e., more than two months after that list had been requested. Brazil asserts before us that "Frangosul had to go back and collect specific information for the period January 1998 through January 1999, which sometimes meant manually having to search the many invoices (over 320.000) to find the information requested by the authority." To the extent that Brazil's argument is that, following the DCD's request of 12 October 1999, Frangosul had informed the DCD that it could not submit the data requested by that authority due to the large number of domestic sales transactions involved, we consider that Brazil's argument shall be rejected because we have not found any indication on the record before us that Frangosul made that argument in response to the DCD's request of 12 October. However, we note that an argument similar to that raised by Brazil before us is contained in a Frangosul communication sent in response to a DCD request dated 12 July 1999 in which the investigating authority requested Frangosul to submit "supporting documentation for all the sales transactions in the domestic market�".¹⁶⁶ (emphasis added) Taking this into account, we consider that the statement of Frangosul referred to by Brazil relates to another (previous) request of the DCD regarding the submission of supporting documentation, and not the DCD's 12 October request for a list of domestic sales transactions. This conclusion is bolstered by the fact that the statement referred to by Brazil is contained in a document which predates the DCD's request of 12 October 1999. Hence, we consider that the argument presented by Brazil before us does not justify Frangosul's belated submission of the list of domestic sales transactions. As Brazil has not presented any other justification for that belated submission, and bearing in mind all the circumstances of this particular case, we are of the view that Frangosul did not submit necessary information within a "reasonable period" as set forth in Article 6.8. For the same reasons, we find that the information was not supplied "in a timely fashion" within the meaning of paragraph 3 of Annex II.

7.197 As in the case of Catarinense, Brazil refers to paragraphs 5 and 7 of Annex II in support of its claim. Bearing in mind the facts as described in para. 7.196 supra, in particular Frangosul's belated reply to the DCD's request of 12 October 1999, we cannot consider that Frangosul acted to the best of its ability in the sense of Annex II, paragraph 5. Nor do we see how "special circumspection" in the sense of Annex II, paragraph 7, would have required the DCD to accept Frangosul's normal value data given the circumstances set forth above. Brazil argues that the normal value data provided by Frangosul was more accurate than the normal value data provided by the applicant on account of the particular product characteristics. An identical argument has been examined in para. 7.193 supra concerning Catarinense. For the reasons set forth in that paragraph, we also reject this argument.

7.198 For the foregoing reasons, we uphold Brazil's Claim 17 that Argentina violated Article 6.8 in rejecting the export price data submitted by Avipal, Frangosul and Sadia. We reject Brazil's Claim 19 that Argentina violated Article 6.8, and paragraphs 3, 5 and 7 of Annex II to the AD Agreement by not using the normal value data reported by Catarinense and Frangosul. We make no findings in respect of Brazil's Claim 15.

7.199 These claims raise issues under Article 12.2.2 of the AD Agreement. They concern alleged omissions from Argentina's public notice of conclusion of the investigation.

7.200 According to Brazil, Article 12.2.2 mandates that a public notice of conclusion of the investigation contain, or otherwise make available through a separate report, all relevant information on matters of fact and law and reasons which have led to the imposition of final measures. In the view of Brazil, the established margins of dumping as well as a full explanation of the reasons for the methodology used in their establishment and comparison of normal value and export price are considered as relevant information. In spite of this obligation, Brazil asserts that the DCD provided no explanation of why it made an adjustment to normal value for differences in the physical characteristics of poultry sold in Brazil and that sold in Argentina, even though the product description provided by certain exporters indicated that such differences did not exist.

7.201 Argentina argues that the Report of 4 January 2000 and the Final Affirmative Dumping Determination, "throughout the text and under different headings," dealt in detail with each of the exporters' submissions in order to reach a reasoned conclusion as to the investigating authority's motives for excluding submissions that lacked sufficient supporting documentation or were made after the deadline had expired.

7.202 Brazil asserts that, contrary to Article 12.2.2, the public notice of conclusion contained no explanation of why the investigating authority did not establish export price based on the information provided by Sadia, Avipal, Frangosul and Catarinense.

7.203 As in the case of Claim 16, Argentina argues that the Report of 4 January 2000 and the Final Affirmative Dumping Determination, "throughout the text and under different headings," dealt in detail with each of the exporters' submissions in order to reach a reasoned conclusion as to the investigating authority's motives for excluding submissions that lacked sufficient supporting documentation or were made after the deadline had expired.

7.204 Brazil claims that the public notice of conclusion did not adequately explain why the DCD did not use normal value submitted by Frangosul and Catarinense.

7.205 Similar to Claim 16, Argentina argues that the Report of 4 January 2000 and the Final Affirmative Dumping Determination, "throughout the text and under different headings," dealt in detail with each of the exporters' submissions in order to reach a reasoned conclusion as to the investigating authority's motives for excluding submissions that lacked sufficient supporting documentation or were made after the deadline had expired.

7.206 In examining similar claims, the Guatemala - Cement II panel expressed its view that:

7.207 We agree with that panel. In our view, it is not necessary to determine whether a Member complied with the transparency requirements of Article 12.2.2 in imposing an anti-dumping measure if that measure has already been found to violate various substantive provisions of the AD Agreement. Since we have already found that Argentina's anti-dumping measure is inconsistent with various substantive provisions of the AD Agreement, it is not necessary for us to determine whether or not Argentina complied with the transparency requirements of Article 12.2.2 in imposing that measure.¹⁶⁷

7.208 For the foregoing reasons, we do not consider it necessary to make any findings on Claims 16, 18 and 20.

7.209 Brazil asserts that the investigating authority did not calculate individual dumping margins for Catarinense and Frangosul in spite of the fact that these companies submitted data on normal value and export price within a reasonable period of time. Brazil asserts that the investigating authority did not provide an explanation, either in the final determination or in any other document on the record of the investigation, as to why, in this case, it did not determine an individual dumping margin for Catarinense and Frangosul. In the view of Brazil, by failing to determine an individual margin of dumping for those two exporters, and by applying instead the dumping rate for �all others�, Argentina acted inconsistently with the general rule set forth in Article 6.10 of the AD Agreement.

7.210 Argentina disagrees with Brazil�s presentation of the facts. With respect to Catarinense, Argentina submits that, as stated in the Final Affirmative Dumping Determination, the data received from the exporter was presented on an aggregate basis, without any supporting documentation. According to Argentina, Catarinense failed to provide information on sales in the Brazilian market. Argentina asserts that the only supporting documentation that Catarinense submitted was a list of invoices for exports to Argentina. In the case of Frangosul, Argentina asserts that several notifications were sent to the exporter with a request to provide the lists of Notas fiscales (invoices), in order to establish a statistical sample. Argentina asserts that a reminder was sent to the exporter on 18 November 1999. According to Argentina, two diskettes containing data with respect to domestic sales, without supporting documentation, arrived after the expiry of the deadline. Argentina notes that, in the Final Affirmative Dumping Determination, the DCD stated that:

7.211 Brazil notes that the DCD also disregarded the export price data submitted by the exporters Sadia and Avipal. Nevertheless, it still calculated individual margins of dumping for those two exporters. Brazil fails to see the reason why the DCD proceeded differently with respect to the information provided by Frangosul and Catarinense. Brazil further asserts that the fact that an exporter has not submitted the relevant and appropriate information to establish normal value and export price does not exclude the authority�s obligation under Article 6.10 to calculate an individual margin of dumping for that exporter.¹⁶⁹

7.212 The issue before us is whether, in light of the facts in this dispute, Article 6.10 of the AD Agreement required the DCD to determine separate dumping margins for the exporters Catarinense and Frangosul.

7.213 Article 6.10 provides in relevant part:

7.214 We agree with the view expressed by the Argentina - Ceramic Tiles panel that Article 6.10, first sentence, imposes a general obligation on investigating authorities to calculate individual margins of dumping for each known exporter or producer concerned of the product under investigation.¹⁷⁰

7.215 Argentina argues that, for the requirement of Article 6.10 to apply, the exporter or producer concerned should supply the documentation needed to determine an individual margin of dumping.¹⁷¹ We see no such obligation in the text of Article 6.10. In our view, Article 6.10 is purely procedural in nature, in the sense that it imposes a procedural obligation on the investigating agency to determine individual margins of dumping for each known exporter or producer concerned of the product under investigation. Article 6.10 is not concerned with substantive issues concerning the determination of individual margins, such as the availability of the relevant data. Such issues are addressed by provisions such as Articles 2 and 6.8 of the AD Agreement. In this regard, we note that the Argentina - Ceramic Tiles panel found that:

7.216 We agree. The fact that an investigating authority does not receive any information from an exporter, or only receives partial information, or information that is not usable or is unreliable, should not prevent the calculation of an individual margin of dumping for that exporter, since the substantive provisions in the AD Agreement referred to in para. 7.215 supra expressly allow investigating authorities to complete the data with regard to a particular exporter in order to determine a dumping margin in case the information provided is unreliable or necessary information is simply not provided. We therefore reject Argentina's argument that "a condition for the determination of an individual margin of dumping for each exporter is that the exporter should (�) supply the documentation needed to reach such a determination."¹⁷³

7.217 In light of the above, we conclude that Argentina violated Article 6.10 of the AD Agreement by not determining an individual margin of dumping for Catarinense and Frangosul.

7.218 Brazil claims that Argentina violated Article 6.9 of the AD Agreement by failing to inform all interested parties of the essential facts under consideration which formed the basis of the decision that a definitive anti-dumping duty should be applied. In particular, Brazil argues that the investigating authority failed to inform interested parties that certain domestic and export sales price data was not going to be used for the purpose of establishing normal value and export price. Brazil also asserts that the investigating authority failed to inform interested parties of the reasons why that information was not used.

7.219 Argentina asserts that, through the DCD's Report of 4 January 2000, the investigating authority informed the parties of all the essential facts on which it intended to base its final decision.

7.220 The European Communities, as a third party, does not take a position on whether, under the facts of this case, the measure is consistent with Article 6.9 of the AD Agreement. The European Communities argues that Article 6.9 entails a positive action by the investigating authorities, and requires the authorities to actively disclose those essential facts on which the decision whether to apply definitive measures is based. Referring to the Guatemala - Cement II panel, the European Communities asserts that mere access to the file is not sufficient, unless the file contains a disclosure document specifically prepared by the authorities which clearly identifies the "essential facts".

7.221 This claim raises the issue of whether certain alleged "essential facts" identified by Brazil should have been disclosed to interested parties pursuant to Article 6.9 of the AD Agreement.

7.222 Article 6.9 of the AD Agreement reads as follows:

7.223 The first sentence of Article 6.9 therefore imposes the obligation on investigating authorities to inform interested parties of the essential facts which form the basis for the decision whether to apply definitive measures. We emphasise that the Article 6.9 obligation applies only in respect of (1) "essential facts" which (2) form the basis for the decision whether to apply definitive measures. In our view, facts which do not form the basis for the decision whether to apply definitive measures cannot be considered to be "essential facts" within the meaning of Article 6.9 of the AD Agreement.¹⁷⁴

7.224 Brazil claims that Argentina violated Article 6.9 by failing to inform interested parties of the "essential fact" that certain normal value and export price data reported by the exporters was not going to be used in the final determination. In our view, however, the fact that certain normal value or export price data is not going to be relied on in making a final determination is not a fact which forms the basis for the decision whether to apply definitive measures. While we accept that the normal value and export price data ultimately used in the final determination are essential facts which form the basis for the decision whether to apply definitive measures, the fact that certain normal value and export price data is not going to be used is not. In this regard, the fact that interested parties may not have been informed that certain normal value and export price data was not going to be used in the final determination should perhaps have been addressed by Brazil in the context of Article 6.8 of the AD Agreement.

7.225 Brazil also claims that Argentina violated Article 6.9 by failing to inform interested parties of the reasons why the investigating authority failed to use certain domestic and export sales price data reported by exporters. In our view, however, the failure to inform an interested party of a reason does not equate to failure to inform an interested party of an essential fact. The word "fact" is defined inter alia as "a thing that is known to have occurred, to exist or to be true", whereas a "reason" is a "motive, cause or justification".¹⁷⁵ We do not believe that the ordinary meaning of the word "fact" would support a conclusion that Article 6.9, when using the term "fact", refers not only to "facts" in the sense of "things which are known to have occurred, to exist or to be true", but also to "motives, causes or justifications".

7.226 Brazil asserted in response to Question 95 from the Panel that:

7.227 We do not consider that this response supports Brazil's claim. First, Article 17.6(i) of the AD Agreement distinguishes between (1) the establishment of facts and (2) the evaluation of facts. In our view, a reason is part of the evaluation of a fact, and not the fact itself. Second, we agree with Brazil that an investigating authority must inform interested parties why certain information is disregarded. However, as Brazil itself notes in the last two sentences cited above, that obligation is found in Article 6.8 (through Annex II, para. 6),¹⁷⁶ and not in Article 6.9.

7.228 Brazil also relies on the Argentina - Ceramic Tiles panel in support of its claim.¹⁷⁷ We consider that our conclusion is entirely compatible with the finding of the Argentina - Ceramic Tiles panel. In our view, that panel concluded that factual information - rather than reasoning - represents the "essential facts" which form the basis for the decision whether to apply definitive measures. In particular, that panel found that "petitioner and secondary source information, rather than exporters' information, represented (with respect to the existence of dumping) the essential facts which formed the basis for the decision whether to apply definitive measures".¹⁷⁸ This shows clearly that that panel defined "essential facts" in terms of factual information, rather than reasoning.

7.229 We recall that the scope of the obligation set forth in Article 6.9 is limited to (1) "essential facts" which (2) form the basis for the decision whether to apply definitive measures. Since some of the elements identified by Brazil are not "essential facts", and the remainder are facts which do not "form the basis for the decision whether to apply definitive measures", we reject Brazil's claim that Argentina failed to inform interested parties of "the essential facts under consideration which form the basis for the decision whether to apply definitive measures".

7.230 In light of the foregoing, we reject Brazil's claim that Argentina has violated Article 6.9 of the AD Agreement.