European Communities - Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China - Recourse to Article 21.5 of the DSU by China (WT/DS397): Report of the Appellate Body

Summary

INTRODUCTION

The European Union and China each appeals certain issues of law and legal interpretations developed in the Panel Report, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China – Recourse to Article 21.5 of the DSU by China (Panel Report). The Panel was established pursuant to Article 21.5 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) to consider a complaint by China regarding the consistency with the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement) and Agreement on Tariffs and Trade 1994 (GATT 1994) of measures taken by the European the General Union to comply with the recommendations and rulings of the Dispute Settlement Body (DSB) in the original proceedings in EC – Fasteners (China).

On 9 November 2007, the European Commission (Commission) issued a “Notice of Initiation” of an anti-dumping investigation on imports of certain iron or steel fasteners from China (original investigation). This original investigation resulted in the imposition of definitive anti-dumping duties on fasteners from China, which was notified through the “Definitive Regulation” of 26 January 2009.

On 12 October 2009, China requested the establishment of a panel, and the original panel was established on 23 October 2009. Before the original panel, China challenged, inter alia, the WTO-consistency of the Definitive Regulation imposing anti-dumping duties on fasteners from China. In its report, which was circulated to Members of the World Trade Organization (WTO) on 3 December 2010, the original panel found that the European Union had violated certain provisions of the Anti-Dumping Agreement, in particular: (i) Articles 6.10 and 9.2 with respect to the treatment of individual exporters and producers in the calculation of margins of dumping under Article 9(5) of the “Basic AD Regulation“; (ii) Articles 3.1 and 3.2 with respect to the assessment of the volume of dumped imports in the injury determination; (iii) Articles 3.1 and 3.5 with respect to the causation analysis of the injury determination; (iv) Articles 6.4 and 6.2 with respect to the failure of the Commission to disclose in a timely manner information regarding certain aspects of the normal value determination; (v) Article 6.5.1 with respect to non-confidential summaries of questionnaire responses; and (vi) Article 6.5 with respect to confidential treatment of certain information.