II - ARGUMENTS OF THE PARTICIPANTS AND THE THIRD PARTICIPANTS

Summary

Claims of Error by the European Union – Appellant

1. Annex V to the SCM Agreement

35. The European Union asserts that the Panel erred by refusing to rule that the information-gathering procedure under Annex V to the SCM Agreement had been initiated, and by denying a number of related requests. The European Union submits that, in proceeding in the way it did, the Panel failed to make an objective assessment of the matter within the meaning of Article 11 of the DSU and erred in its interpretation and application of Article 7.4 the SCM Agreement and paragraph 2 of Annex V thereto. The European Union requests the Appellate Body to find that the Panel erred in not ruling on whether the Annex V procedure had been initiated, and to complete the analysis and make a finding that the Annex V procedure is initiated by negative consensus or automatically. In addition, and independently of these requests, the European Union urges the Appellate Body to “constantly bear in mind the circumstances of this case”, in particular the withholding of information and non-cooperation by the United States. On that basis, the Appellate Body should preclude the United States from criticizing the Panel for its assessment of the facts or drawing of factual inferences and, “{i}n case of doubt or evidentiary conflict or equipoise, the Appellate Body should rule in favour of the European Union”.