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EUROPEAN COMMUNITIES - ANTI-DUMPING DUTIES ON Report of the Panel
VII. FINDINGS
7.1 In light of the claims and arguments made by the parties in the course of these Panel proceedings38, we recall, at the outset of our examination, the standard of review we must apply to the matter before us. 7.2 Article 11 of the DSU39 , in isolation, sets forth the appropriate standard of review for panels for all covered agreements except the Anti-Dumping Agreement . Article 11 imposes upon panels a comprehensive obligation to make an "objective assessment of the matter", an obligation which embraces all aspects of a panel's examination of the "matter", both factual and legal. 7.3 Article 17.6 of the Anti-Dumping Agreement sets forth the special standard of review applicable to anti-dumping disputes. Certain elements of Article 17.6 of the Anti-Dumping Agreement complement -- or supplement -- the standard contained in Article 11 of the DSU. In particular, with regard to factual issues, Article 17.6(i) provides:
7.4 With respect to legal questions of the interpretation of the Anti-Dumping Agreement, Article 17.6(ii) provides:
7.5 Thus, together, Article 11 of the DSU and Article 17.6 of the Anti-Dumping Agreement set out the standard of review we must apply with respect to both the factual and legal aspects of our examination of the claims and arguments raised by the parties.40 7.6 In light of this standard of review, in examining the matter referred to us, we must evaluate whether the determination made by the European Communities is consistent with relevant provisions of the Anti-Dumping Agreement . We may and must find that it is consistent if we find that the European Communities investigating authority has properly established the facts and evaluated the facts in an unbiased and objective manner, and that the determination rests upon a "permissible" interpretation of the relevant provisions. Our task is not to perform a de novo review of the information and evidence on the record of the underlying anti-dumping investigation, nor to substitute our judgment for that of the EC investigating authority even though we may have arrived at a different determination were we examining the record ourselves. 7.7 We recall that the general principles applicable to burden of proof in WTO dispute settlement require that a party claiming a violation of a provision of the WTO Agreement by another Member must assert and prove its claim.41 In these Panel proceedings, we thus observe that it is for Brazil, which has challenged the consistency of the European Communities' measure, to bear the burden of demonstrating that the measure is not consistent with the relevant provisions of the Agreement. We also note, however, that it is generally for each party asserting a fact, whether complainant or respondent, to provide proof thereof.42 In this respect, therefore, it is also for the European Communities to provide evidence for the facts which it asserts. We also recall that a prima facie case is one which, in the absence of effective refutation by the other party, requires a panel, as a matter of law, to rule in favour of the party presenting the prima facie case. In addition, we consider that both parties generally have a duty to cooperate in the proceedings in order to assist us in fulfilling our mandate, through the provision of relevant information.43 We must draw inferences on the basis of all of the relevant facts of record, including, for example, where a party refuses to provide relevant information.44
7.8 The parties each made requests for rulings on preliminary or procedural matters in this dispute. We turn first to the preliminary rulings requested by the European Communities. We then address the preliminary and procedural issues raised by Brazil.
7.9 The European Communities requests that we make preliminary rulings dismissing certain claims of Brazil as either overly vague or outside our terms of reference, or both.
7.10 At the first substantive meeting with the parties, we issued the following ruling in response to the EC request45 relating to the alleged vagueness of certain claims by Brazil:
1 EC first written submission, paras 19-24. Executive summary of EC first written submission, Annex A-2, paras. 5 and 6. 2 EC first written submission, para. 22. 3 EC first written submission, para. 19. 4 Brazil's response to the EC's request for a preliminary ruling, para. 74. 5 See Brazil's response to the EC's request for a preliminary ruling, paras. 26-36. 6 EC first written submission, para. 19. 7 E.g., EC reply to Brazil's response to the preliminary rulings requested by the EC, paras. 12-15. 8 WT/DS219/2. 9 We recall the statement by the Appellate Body that "there is a significant difference between the claims identified in the request for the establishment of a panel, which establish the panel's terms of reference under Article 7 of the DSU, and the arguments supporting those claims, which are set out and progressively clarified in the first written submissions, the rebuttal submissions and the first and second panel meetings with the parties". Appellate Body Report, European Communities - Regime for the Importation, Sale and Distribution of Bananas ("EC - Bananas III "), WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, 591, para. 141. 10 Panel's Working Procedures, para. 14. 11 See Brazil's response to the EC's request for a preliminary ruling, paras. 26-36. 12 Appellate Body Report, United States - Tax Treatment of "Foreign Sales Corporations" ("US - FSC"), WT/DS108/AB/R, adopted 20 March 2000, para. 166. 13 We draw support for our view from Panel Report, Thailand - Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland ("Thailand - H-Beams "), WT/DS122/R, adopted 5 April 2001, as modified by the Appellate Body Report, WT/DS122/AB/R, para. 7.43.
7.11 We do not consider it is necessary to supplement our ruling with respect to this matter.
7.12 In its first written submission, the European Communities requested that we make a preliminary ruling that certain of Brazil's claims are not within our terms of reference. In particular, the European Communities alleges that the following claims of Brazil are not within our terms of reference:46
7.13 We examine the EC request with respect to each of these "claims" below.
7.14 At the first substantive meeting with the parties, we issued the following ruling in response to the request by the European Communities relating to the scope of the Panel's terms of reference concerning Articles 6.9, 6.13, 9.3 and 12.1 of the Anti-Dumping Agreement :
1 EC first written submission, para. 23. 2 Brazil's response to the EC's request for a preliminary ruling, para. 74. 3 We note that "�when a "matter" is referred to the DSB by a complaining party under Article 17.4 of the Anti-Dumping Agreement , the panel request must meet the requirements of Articles 17.4 and 17.5 of the Anti-Dumping Agreement as well as Article 6.2 of the DSU". See Appellate Body Report, Guatemala - Anti-Dumping Investigation Regarding Portland Cement from Mexico ("Guatemala - Cement"), WT/DS60/AB/R, adopted 25 November 1998, para. 75. In this regard, we note that Brazil has identified a definitive anti-dumping duty in its panel request as part of the matter referred to the DSB pursuant to Article 17.4 and Article 6.2. We further note that the EC has not asserted that there are any deficiencies under Article 17.5 of the Anti-Dumping Agreement with respect to the Panel request in this dispute. 4 We find support for this approach in Appellate Body Report, Guatemala - Cement, supra, note 3, para. 69: "�Article 6.2 of the DSU requires that both the "measure at issue" and the "legal basis for the complaint" (or the "claims") be identified in a request for the establishment of a panel".
5 We find support for our view that identification of the treaty provision in
question is a critical precondition for presenting the legal basis of the
complaint for the purposes of Article 6.2 DSU in the Appellate Body report in
Korea - Dairy. In that case the Appellate Body stated: 6 WT/DS219/2. 7 For example, Article 12 of the Anti-Dumping Agreement relates to "Public Notice and Explanation of Determinations". It contains multiple and diverse requirements with respect to various public notices relating to an anti-dumping investigation. While Article 12.2 relates to preliminary and final determinations, Article 12.1 contains obligations pertaining to the public notice and notification of the initiation of the investigation.
7.15 We consider that our earlier ruling with respect to the EC request concerning the claims by Brazil under Articles 6.9, 6.13, 9.3 and 12.1 remains sufficient. For greater clarity, we would point out that our decision that Brazil's "claims" under Article 6.9 do not fall within our terms of reference was based upon our finding that this treaty provision was not identified at all in Brazil's Panel request and that the Panel request therefore did not meet the minimum requirement of Article 6.2 of the DSU in this respect. Whether or not Brazil raised allegations under Article 6.9 in consultations was not the focus of our inquiry. Even assuming arguendo that Brazil had raised this issue in consultations, this would not cure the deficiency in the Panel request as to the lack of any explicit textual identification of the legal basis of Brazil's complaint in this respect. It remains for us to consider, however, the EC request with respect to the claims not covered by this early ruling.
7.16 We now examine the EC request for us to dismiss certain of Brazil's "claims" under Articles 2.2.2, 3.2, 3.4, 3.5, 6.2, 6.6, 12.2 and 12.2.2 of the Anti-Dumping Agreement . Article 6.2 of the DSU provides, in relevant part:
7.17 The issue before us is whether Brazil's Panel request provides "a brief summary of the legal basis of the complaint sufficient to present the problem clearly" and therefore satisfies the standard set out in Article 6.2 of the DSU with respect to Brazil's claims under these provisions of the Anti-Dumping Agreement. 7.18 We must closely scrutinize the Panel request to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU.47 In examining the sufficiency of the Panel request under Article 6.2 of the DSU, we must consider the text of the Panel request itself.48 Second, we take into account whether the ability of the respondent to defend itself was prejudiced, given the actual course of the panel proceedings, by any alleged lack of specificity in the text of the Panel request.49 7.19 We first recall that while claims must be specified in the Panel request, arguments in support of claims need not be set out in the panel request but may rather be progressively clarified and refined in the first submission, followed by the round of rebuttal submissions to the Panel. 7.20 On this basis, we turn first to a consideration of whether the text of the Panel request is sufficient for the purposes of Article 6.2 of the DSU with respect to the allegations identified by Brazil. 7.21 We recall the following allegations of Brazil at issue here:
7.22 We consider that it is not necessary for us to rule on whether these allegations constitute "claims" or "arguments". If they are arguments, there would be no need for them to be set out in the Panel request. Even assuming that all of the allegations identified above are "claims" in respect of which the text of the Panel request may be somewhat deficient in describing the nature of the complaint, the European Communities has failed in any event to demonstrate to us any prejudice to its interests throughout the course of these Panel proceedings by the way these "claims" appeared in the Panel request. We asked the European Communities to indicate any prejudice that it had sustained. The European Communities responded as follows:
7.23 However, it was evident to us from the participation of the European Communities in asserting its views in various phases of these Panel proceedings, including in its first written submission and in the first Panel meeting and in the exchanges between the parties preceding the first Panel meeting on preliminary issues, that the EC's ability to defend itself had not been prejudiced over the course of these Panel proceedings. 7.24 We therefore consider that the text of the Panel request adequately indicates the nature of the problem addressed by Brazil's claims and deny the EC request to dismiss these allegations made by Brazil.
7.25 The European Communities subsequently asserted that52 certain additional allegations made by Brazil in Brazil's second written submission fell outside our terms of reference. According to the European Communities, Brazil had "misused" its rebuttal submission to extend the claims made in its first submission and to introduce wholly new ones. In the EC's view, such manoeuvres constitute "an abuse of the dispute settlement process" and the European Communities requested that we rule that these claims are inadmissible.53 The allegations concerned fell under Issues 1, 6 and 16. 7.26 Under Issue 1, the allegations that the European Communities alleged to fall outside our terms of reference were: first, Brazil's assertion that "the first sentence of Article 15 refers to a general obligation to pay particular attention to the special situation of developing country members"54; and second, Brazil's allegation that, "by failing to raise the possibility of an undertaking before the imposition of the provisional measure, the European Communities breached the second sentence of Article 15 of the Anti-Dumping Agreement " (emphasis in the original). Brazil submits that the Panel request lists Article 15 and provides a description as to the nature of the claim and that consequently the terms of reference cover the first and second sentences of Article 15 as well as the issue of exploration of constructive remedies.55 We note that these allegations may have been encouraged by questioning from the Panel56 in our attempt to clarify certain facts as well as the legal argumentation by the parties and we are conscious that we may neither overstep our terms of reference nor relieve Brazil of its task of establishing the inconsistency of the EC anti-dumping measure with the relevant provisions of the Anti-Dumping Agreement . In particular, we are aware that, in our questions posed to the parties, we must not "overstep the bounds of legitimate management or guidance of the proceedings � in the interest of efficiency and dispatch."57 7.27 With respect to these allegations and with respect to: (a) Brazil's allegation under Issue 6 that the European Communities breached Article 2.4 by not indicating to the Brazilian exporter what additional information with regard to the IPI Premium Credit was necessary to ensure a fair comparison;58 and (b) Brazil's allegation of violation of Article 6.2 and 6.4 in connection with Issue 1659 that the contents of Exhibit EC-12 relating to certain listed Article 3.4 factors were not disclosed during the investigation thereby denying Tupy a full opportunity to defend its interests or a timely opportunity to have access to all relevant evidence, we recall that a complaining party must specify its claims in its Panel request, but that its arguments may be clarified and refined in subsequent submissions. As we have already indicated above, even assuming arguendo that these allegations were claims insufficiently set out in the Panel request, the European Communities has failed to demonstrate that it suffered any prejudice to its interests over the course of these Panel proceedings.60 We therefore deny the EC request to dismiss these allegations made by Brazil.
7.28 In conjunction with its oral statement at the first substantive meeting, Brazil submitted Exhibits BRL-47 through 52, in support of its argumentation regarding "relocation" and "outsourcing arrangements" of several EC producers. Exhibits BRL 47-50 consist of information and tables that Brazil states it drew from the website of the Bulgaria Economic Forum relating to the acquisition by a Community producer (Atusa) of shares in Berg Montana and the consolidation of Atusa's control over Berg Montana on 4 July 2000. Exhibits BRL 51-52 contain information that Brazil states that it drew from Infit SAE's website (and page containing link to Woeste) and from another website providing general and market information in relation to Infit SAE. The gist of Brazil's argumentation, made in connection with its claims concerning injury and causation under Articles 3.4 and 3.5 of the Anti-Dumping Agreement , is that the European Communities failed adequately to examine and to take into account information regarding outsourcing and relocation in reaching its injury and causation determinations. Indeed, according to Brazil, "[o]n the basis of the evidence provided by the Brazilian exporter, an unbiased and objective investigating authority evaluating that evidence could not have reached the conclusions that the EC investigating authorities reached under several provisions of the Anti-Dumping Agreement , primarily regarding injury indicators and causality."61 (emphasis in the original; footnote omitted). 7.29 Recalling that Article 17.5(ii) of the Anti-Dumping Agreement provides that a panel established by the DSB to consider claims made under the Anti-Dumping Agreement will examine the matter referred to it based upon "the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member", the European Communities objects to the submission of these Exhibits by Brazil and requests us to make a preliminary ruling rejecting these exhibits as they did not form part of the record of the underlying investigation. 7.30 Brazil asks us to reject this EC request. Brazil submits that the information contained in the Exhibits in question is "the same" as information that Tupy, as well as other interested parties, presented to the EC authorities in the course of the investigation. Brazil invokes the panel report in US-Hot-Rolled Steel62 to support its view that the Panel is entitled to admit these Exhibits in these Panel proceedings. 7.31 The Panel understands that the issue presented by this EC request for a preliminary ruling is whether we should exclude from our consideration in this dispute certain Exhibits submitted by Brazil in these Panel proceedings that were not submitted to the EC investigating authorities during the investigation. We recall that our Working Procedures provide that preliminary rulings must be requested not later than the first written submission, but that exceptions may be made upon showing of "good cause". As Brazil submitted these Exhibits in conjunction with its oral statement at the first meeting, which meant that the European Communities was not in a position to make a preliminary objection in its first written submission, good cause exists for us to consider the merits of the EC request for a preliminary ruling here. 7.32 Article 17.5(ii) of the Anti-Dumping Agreement - which the European Community identifies as the legal basis for its preliminary ruling request -- provides:
7.33 This provision offers binding guidance directing our decision as to what evidence we are permitted to consider in examining a claim under the Anti-Dumping Agreement . This provision makes clear that, in an examination of a claim of violation of Article 3 of the Anti-Dumping Agreement in a particular investigation and determination, we may consider only facts or evidence going to the substance of the determination that had been made available in conformity with the appropriate domestic procedures to the authorities of the investigating country during the investigation.63 7.34 Further, contextual, support stems from Article 17.6(i) of the Anti-Dumping Agreement, which sets out a specific standard of review for anti-dumping panels. This provision sets the parameters for the standard of our review of the determination of the investigating authority and clearly confirms that a de novo review is not contemplated by the Anti-Dumping Agreement . Thus, we must satisfy the requirement imposed by Article 11 of the DSU to conduct "an objective assessment of the matter before [us]" in accordance with the parameters set by Article 17.5 (ii) and 17.6(i).64 7.35 Brazil argues that the information is "the same" as information contained in the record of the underlying investigation. Brazil asserts that the information may be "re-formatted", and is unable to confirm whether or not the information was available in this format or in the same way at the time of the investigation. However, Brazil concedes that this information, as contained in these Exhibits, was not submitted to the European Communities during the investigation.65 We are therefore prevented by Article 17.5(ii) from considering these Exhibits in the context of our Article 3 examination and do not take them into account in our review of the EC determination. Brazil invoked the panel report in US-Hot-Rolled Steel to support its view that we would act with full authority in denying the EC request and admitting the Exhibits in question. However, that panel confronted different claims, additional to those dealing with the substance of the determination of the investigating authority under the provisions of the Anti-Dumping Agreement , including a claim under Article X:3 of the GATT 1994. That panel made it clear that the evidence to be considered in connection with the complaining party's Article X claim was not limited by the provisions of Article 17.5(ii) of the Anti-Dumping Agreement . By contrast, Brazil's claims (in this context) are limited to Articles 3.4 and 3.5 of the Anti-Dumping Agreement , and their factual basis is therefore delineated by Article 17.5(ii). 7.36 We thus exclude Exhibits BRL-47 through 52 from our consideration in these proceedings.
7.37 Brazil's first written submission, as originally submitted by Brazil on 10 October 2001 contained no paragraph or line numbering. The European Communities submitted, as Exhibit EC-1 to its first written submission, a version of Brazil's first written submission with line numbers superimposed upon it, and references in the European Communities first written submission to Brazil's first written submission were made on the basis of the line-numbered version in Exhibit EC-1. 7.38 Brazil requests that we make a preliminary ruling that the European Communities amend the text of the European Communities' first written submission so that references therein to Brazil's first written submission be made to the actual text of Brazil's first written submission as originally submitted by Brazil.66 7.39 The European Communities asks that we reject this request, and further requests that we amend our Working Procedures in order to provide that the parties shall number the paragraphs or lines of all their subsequent submissions.67 7.40 At the first substantive meeting with the parties, the Panel made the following statement:
7.41 Brazil accordingly submitted a revised, paragraph-numbered version to the Panel of its first written submission on 14 December 2001.
7.42 The European Communities submits an internal "note for the file" -- Exhibit EC-12 -- in support of its arguments relating to the EC examination of Article 3.4 injury factors. According to the European Communities,
7.43 Brazil submits that Exhibit EC-12 is not part of the record of the underlying investigation. According to Brazil, this document is not part of the non-confidential file and there are indications that it was not part of the confidential file either. In Brazil's view, it is therefore is not properly before the Panel. Indeed, Brazil states:
7.44 The European Communities contends that Exhibit EC-12 legitimately forms part of the injury determination that the Panel must examine in its analysis of Brazil's Article 3.4 claim.69 In response to Panel questioning, the European Communities confirmed that Exhibit EC-12 forms part of the record of the underlying investigation. The European Communities states that it "will accord the scurrilous assertions made by Brazil regarding the bona fides of this document the attention they deserve."70 7.45 The Panel notes that the information in Exhibit EC-12 was not disclosed in any form to the interested parties in the course of the investigation. We wish to emphasize that we deplore 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. It was apparently entirely unfamiliar to Brazil prior to the submission by the European Communities of Exhibit EC-12 in conjunction with the EC first written submission in these Panel proceedings. However, we understand that, in assessing the European Communities' compliance with Article 3, Articles 17.5 and 17.6(i) of the Anti-Dumping Agreement require us to examine the facts available to the investigating authority of the importing Member. These provisions do not prevent us from examining facts that were confidential and/or not disclosed to, or discernible by, the interested parties at the time of the final determination. We are therefore required by the Agreement to take into account all information upon which the investigating authority relied in order to reach its final determination, whether or not this information forms part of the non-confidential or disclosed record of the investigation or whether its consideration can be discerned from the published documents. This necessarily includes the information contained in Exhibit EC-12. We are guided by the Appellate Body Report in Thailand-H-Beams.71 We consider that this Appellate Body Report thoroughly addresses and resolves the issue that arises here and that we are permitted, indeed required, to take the contents of Exhibit EC-12 into account in our examination of Brazil's claims concerning the EC injury analysis under Article 3.4. 7.46 We understand Brazil to insinuate that Exhibit EC-12 may be some sort of post hoc attempt by the European Communities to cure the flaws that it perceived to exist in its Article 3.4 analysis for the purposes of these Panel proceedings. In this respect, we must presume that WTO Members participate in good faith in dispute settlement proceedings. We asked the European Communities to indicate in the record of the investigation the sources of information and the methodology on which the statements and information in Exhibit EC-12 are based.72 The European Communities gave an account of the methodology and the sources of information on the basis of which the statements in Exhibit EC-12 were made. We further asked the European Communities to confirm and substantiate to us that Exhibit EC-12 was written within the time period of the investigation.73 The European Communities confirmed that this was the case. Given the EC responses, we find no basis to question whether Exhibit EC-12 forms part of the record of the underlying investigation and we must consequently take its contents into account in our examination of the relevant substantive claims made by Brazil. 7.47 We therefore decline Brazil's request for us to rule that Exhibit EC-12 is not properly before us.
7.48 In its 31 July 2002 comments on the draft descriptive part of the Panel Report, Brazil requested that the complete text of its first and second submissions, rather than Brazil's executive summaries thereof, be included in Annexes A and C respectively. According to Brazil:
7.49 For the reasons that follow, the Panel cannot accede to Brazil's request that we attach the full text of Brazil's first and second written submission to our Report. 7.50 First, we recall that paragraph 16 of the Working Procedures that we adopted at the outset of these proceedings pursuant to Article 12.1 of the DSU, after hearing the parties' views, provide:
7.51 This paragraph makes it clear that we are to use the executive summaries only for the purpose of assisting us in drafting a concise arguments section of the Panel Report so as to facilitate timely translation and circulation of the Panel Report to the Members. The rationale of this paragraph is to facilitate our production of a concise and timely descriptive part and to not attach the entire written submissions and statements of the parties. We find no substantiation for Brazil's assertion that other panels that have adopted a similar paragraph in their working procedures have also nevertheless attached the parties' entire written submissions to their reports. Indeed, this would seem to us to defeat the purpose of adopting the "executive summary approach" in the first place. 7.52 Second, the attachment of executive summaries to our report also leaves the parties in control of the contents of the executive summaries and enables them to set forth their most important arguments as they wish to set these forth. Each party has the obligation and the discretion to ensure that its own executive summaries of its own submissions accurately reflects its claims and arguments. Neither party requested us to increase the page limits referred to in our Working Procedures. 7.53 Third, we adopted these Working Procedures after hearing the views of the parties, at which time Brazil expressed no objection to the formulation in paragraph 16 of the Working Procedures. We decided at the outset to follow the "executive summaries approach" for these Panel proceedings. Having adopted this approach at the outset, we do not consider that it would beneficial, at this rather advanced stage in the proceedings, to adopt Brazil's suggested approach of attaching its full first and second submissions. Our adoption of such an approach at this stage would result in significant further delays in issuing our Report, particularly in view of the lengthy nature of these submissions (totalling over 370 pages). This would impose a considerable translation burden, adding to the burden already being borne due to the operation of the WTO dispute settlement system generally. There would also be an incongruity if the full EC submissions were not also attached, which, if we were to address by taking the requisite procedural steps and then by annexing the EC submissions, would augment the translation burden. We find particularly salient, in this respect, Article 12.2 of the DSU, which provides:
7.54 Fourth, as our Working Procedures also make clear, in no way are the executive summaries to substitute for the parties' submissions. In the course of our examination of the parties' claims and arguments in these proceedings, we have read and analyzed with great care the full written and oral submissions of the parties and the exchanges of questions and answers relating thereto. Our findings and conclusions in this Panel Report are based upon these full written and oral submissions and questions and answers. They form an integral part of the record before the Panel in this case. We therefore believe that we have adhered to both the letter and spirit of our Working Procedures and do not believe that any prejudice has arisen to Brazil in the course of these proceedings from annexing executive summaries of its first and second written submissions. 7.55 Fifth, we recall that Article 18.2 of the DSU, as also reflected in paragraph 3 of our Working Procedures, states that nothing in the DSU shall preclude a party to a dispute from disclosing statements of its own positions to the public. There is therefore nothing precluding Brazil from making its full first and second submissions generally and publicly available (subject, of course, to the requirements of maintaining the confidentiality of the EC's submissions in Article 18.2 of the DSU and paragraph 3 of our Working Procedures).74
39 Article 11 of the DSU, entitled
"Function of Panels", states: "The function of panels is to assist the DSB in
discharging its responsibilities under this Understanding and the covered
agreements. Accordingly, a panel should make an objective assessment of the
matter before it, including an objective assessment of the facts of the case and
the applicability of and conformity with the relevant covered agreements, and
make such other findings as will assist the DSB in making the recommendations or
in giving the rulings provided for in the covered agreements�"
40
Appellate Body Report, United States - Anti-Dumping
Measures on Certain Hot-Rolled Steel Products from Japan ("US-Hot-Rolled
Steel"), WT/DS184/AB/R, adopted 23 August 2001, paras. 54-62.
41 Appellate Body Report, United States - Measure Affecting
Imports of Woven Wool Shirts and Blouses from India ("US - Wool Shirts
and Blouses"), WT/DS33/AB/R, adopted 23 May 1997, DSR 1997:I, 323, at 337.
42
Ibid.
43 Appellate Body Report, Canada - Measures Affecting the
Export of Civilian Aircraft ("Canada - Aircraft"), WT/DS70/AB/R, adopted 20
August 1999, DSR 1999:III, 1377, para. 190.
44
Ibid., para. 203; Appellate Body
Report, United States - Definitive Safeguard Measures on Imports of Wheat
Gluten from the European Communities ("US - Wheat Gluten "),
WT/DS166/AB/R, adopted 19 January 2001, paras. 173-174.
45
In particular, this EC request involved the following claims
or arguments: allegation under Article 6.2 relating to alleged differences
between the scope of the product referred to in the Application and subject to
the investigation; allegation under Article 11.2 relating to the EC alleged
failure to self-initiate a review immediately upon imposition of the AD
measures; allegation under Article 2.4.1 because the EC allegedly did not make
the currency conversions required under Article 2.4 for the purpose of making a
fair comparison between the export price and the normal value; allegation of
violation as the EC allegedly failed to satisfy itself as to the accuracy of
information submitted by Tupy relating to imports of the product concerned under
other CN codes; allegation of violation of Article 3.3 relating to channels of
distribution and levels of trade; allegation of violation of Article 3.4 that it
was incumbent on the EC to rely on more indicators and evidence of injury;
allegation of violation relating to Articles 6.6 and 3.5 that the EC allegedly
did not take proper account of positive evidence relating to alleged differences
in the cost of production and market perception concerning black and white heart
variants of the product concerned; and all claims under Article 12.
46 EC first written submission, para. 24. This
EC request for a ruling pertained originally to certain claims made by Brazil
in connection with Issue 2 in respect of the application and initiation of the
investigation. In the course of these Panel proceedings, Brazil withdrew its
claims under Issue 2. Brazil second written submission, para. 24. We therefore
do not examine the request by the European Communities for a ruling on the
scope of our terms of reference pertaining to Brazil's "claims" on the
application and initiation of the investigation under Issue 2, in
particular: claim of breach of Article 5.2 on the basis that products
covered in the investigation must be identical with those described in the
application; claim of breach of Article 5.2 on the grounds that the
application did not include a complete list of known importers; and claim that
the EC authorities failed to satisfy themselves as to the accuracy of
information in the application.
47 We find support for this approach in Appellate Body Report,
European Communities - Regime for the Importation, Sale and Distribution of
Bananas ("European Communities - Bananas"), WT/DS27/AB/R, adopted 25
September 1997, para. 142.
48 Each of the treaty provisions we examine here is cited in the
Panel request and therefore meets at least that minimum standard.
49
We find support for this approach in Appellate Body Report,
Korea - Definitive Safeguard Measure on Imports of Certain Dairy Products
("Korea - Dairy "), WT/DS98/AB/R, adopted 12 January 2000.
50
In its second written submission, para. 361, Brazil maintains
certain of its allegations of inconsistency with Articles 12 and 12.2, including
certain of relevance here, i.e. in connection with: Issue 1 (not making public
findings and conclusions with regard to the exploration of possibilities of
constructive remedies under Article 15); Issue 16 (not making public findings
and conclusions with regard to EC producers' export performance). As the second
submission is a more recent iteration of Brazil's allegations, we understand
that Brazil has limited itself to those allegations under Article 12 that are
identified in its second written submission. In this regard, we take note of the
following statement by Brazil: "Brazil is aware that claims made under Article
12.1 of the Anti-Dumping Agreement are not within the Panel's terms of
reference. Some of the claims under Article 12.2 of the Anti-dumping
Agreement can however be upheld, contrary to the EC's opinion that these
claims must also be dismissed." Brazil second written submission, para. 361. We
therefore do not consider the EC's preliminary ruling request with respect to
Brazil's initial allegations concerning: allegedly no disclosure showing that
the EC had properly considered the effect that the devaluation of Brazil's
currency in January 1999 had on the question whether measures should have at all
been imposed (in connection with Issue 3); constructed normal value and Article
2.2.2 (failing to sufficiently explain why and how it applied Article 2.2.2 of
the Anti-Dumping Agreement when it refused to make due allowances for
differences in physical characteristics affecting price comparability, in
connection with Issue 5); the EC's alleged failure to sufficiently explain why
and how it applied Article 2.2.2 of the Anti-Dumping Agreement when it
refused to make due allowances for differences in physical characteristics
affecting price comparability in its consideration of price undercutting;
Brazil's allegation that the EC has not properly explained why it deleted the
last position from the product control number (in connection with Issue 13).
51 EC response to Panel question 27 following the second Panel
meeting, Annex E-8.
52 EC second oral statement, para. 9.
53 EC second oral statement, para. 5.
54 Brazil second written submission, para. 4.
55 Brazil response to Panel question 25 following the second
Panel meeting, Annex E-1.
56 In particular, Panel questions 6 and 9 following the first
Panel meeting.
57 Appellate Body Report, Korea-Dairy Safeguard, supra,
note 49, para. 149. We also find support for our view in Panel Report,
Thailand - Anti-Dumping Duties on Angles, Shapes and Sections of Iron or
Non-Alloy Steel and H-Beams from Poland ("Thailand - H-Beams "),
WT/DS122/R, adopted 5 April 2001, as modified by the Appellate Body Report,
WT/DS122/AB/R, para. 7.43.
58 Brazil second written submission, paras. 69 - 73.
59 Brazil second written submission, para. 251.
60
See supra, paras.7.22 ff.
61
Brazil first oral statement, para. 6.
62 Panel Report, United States -
Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan ("US
- Hot-Rolled Steel "), WT/DS184/R, adopted 23 August 2001 as modified by the
Appellate Body Report, WT/DS184/AB/R.
63 This evidence proffered by Brazil and challenged by the
European Communities relates to the injury determination by the investigating
authority and, in particular, to the substance of the EC analysis of the causal
link between the injury and the dumped imports. Article 3.5 of the
Anti-Dumping Agreement also contains specific relevant language. It states,
in pertinent part: "The demonstration of a causal relationship between the
dumped imports and the injury to the domestic industry shall be based on an
examination of all relevant evidence before the authorities." (emphasis
added)
64 We find support for this approach to
the obligations of panels in anti-dumping disputes in Panel Report,
US-Hot-Rolled Steel, supra, note 62, paras. 7.6-7.7, as well as in
the reports of a number of panels that have applied similar principles in
reviewing determinations of national authorities in the context of safeguards
under the Agreement on Safeguards and special safeguards under Article 6 of the
Agreement on Textiles and Clothing. There is no corollary to Article
17.5(ii) in those agreements. Nonetheless, these panels have concluded that a
de novo review of the determinations would be inappropriate, and have
undertaken an assessment of, inter alia, whether all relevant facts were
considered by the authorities. Panel Report, United States - Definitive
Safeguard Measures on Imports of Wheat Gluten from the European Communities
("United States - Wheat Gluten"), WT/DS166/R, para. 8.6, adopted as modified
(WT/DS166/AB/R) 19 January 2001; Panel Report, Korea - Definitive Safeguard
Measure on Imports of Certain Dairy Products ("Korea - Dairy "),
WT/DS98/R and Corr.1, adopted 12 January 2000, as modified by the Appellate Body
Report, WT/DS98/AB/R, DSR 2000:I, 49, para. 7.30, Panel Report, Argentina -
Safeguard Measures on Imports of Footwear ("Argentina - Footwear Safeguard"),
WT/DS121/R, para. 8.117, adopted as modified (WT/DS121/AB/R) 12 January 2000.
65 Additional oral statement of Brazil regarding Exhibits
BRL-47-52, Annex D-4, para. 2.
66 Brazil request for a preliminary ruling, Annex A-3.
67 EC reply to Brazil's request for a preliminary ruling, Annex
A-4.
68 Brazil second written submission, para. 252.
69 For example, the European Communities states that, in its
view, "the findings in the Provisional and Definitive Regulations and the
explanations set out in Exhibit EC - 12 show the EC's authorities compliance
with these requirements." EC second oral statement, para. 119.
70
EC second oral statement, para. 120.
71 Appellate Body Report, Thailand -
Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel
and H-Beams from Poland ("Thailand - H-Beams "), WT/DS122/AB/R,
adopted 5 April 2001, paras. 107, 111 and 118. The Appellate Body stated: "�the
requirement in Article 3.1 that an injury determination be based on "positive"
evidence and involve an "objective" examination of the required elements of
injury does not imply that the determination must be based only on reasoning or
facts that were disclosed to, or discernible by, the parties to an anti-dumping
investigation. Article 3.1, on the contrary, permits an investigating authority
making an injury determination to base its determination on all relevant
reasoning and facts before it" (para. 111); and "Articles 17.5 and 17.6(i)
require a panel to examine the facts made available to the investigating
authority of the importing Member. These provisions do not prevent a panel from
examining facts that were not disclosed to, or discernible by, the interested
parties at the time of the final determination" (para. 118).
72 See Panel question 110 and EC response thereto following the
first Panel meeting, Annex E-3.
73 See Panel question 20 and EC response thereto following the
second Panel meeting, Annex E-8. We further asked (Panel question 19 following
the second Panel meeting) whether there were any worksheets or investigation
notes which formed the basis for Exhibit EC - 12 and asked the European
Communities to provide them or to explain why these were not provided. The
European Community replied that: "The conclusions recorded in Exhibit EC - 12
are based on worksheets, but these contain highly confidential business
information relating to the performance of individual EC producers and the EC
would prefer not to release them." See Annex E-8.
74 Our Working Procedures state, in relevant part: "Members
shall treat as confidential information submitted by another Member to the Panel
which that Member has designated as confidential and shall not disclose such
information to individuals not involved in the dispute. Where a party to a
dispute submits a confidential version of its written submissions to the Panel,
it shall also, upon request, provide a non-confidential summary of the
information contained in its submissions that could be disclosed to the public,
within ten days of its submission to the Panel." Agreements | Disciplines | Trade Policy Developments | Countries | Trade & SMEs |