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Source(s) of the information:
Source(s) of the information:

Lawyers, other representatives, expert(s), tribunal’s secretary

Report of the Panel

I. INTRODUCTION

1.1.
On 26 January 2000, the European Communities (the "EC") requested consultations with Argentina regarding the definitive anti-dumping measures on imports of ceramic floor tiles from Italy imposed by Argentina on 12 November 1999.1 The EC made its request pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU") and Article 17.3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the "AD Agreement"). The EC and Argentina held consultations on 1 March 2000, but failed to reach a mutually satisfactory solution.
1.2.
On 7 November 2000, the EC requested the establishment of a panel with the standard terms of reference set out in Article 7 of the DSU.2 The EC made its request pursuant to Article 6 of the DSU and Article 17 of the AD Agreement. In that request, the EC identified the measures at issue as the definitive anti-dumping measures on imports of ceramic floor tiles ("porcellanato") from Italy imposed by Argentina on 12 November 1999.
1.3.
At its meeting on 17 November 2000, the Dispute Settlement Body ("DSB") established a Panel pursuant to the above request.3 At that meeting, the parties to the dispute agreed that the Panel should have standard terms of reference. The terms of reference were:

To examine, in the light of the relevant provisions of the covered agreements cited by the European Communities in document WT/DS189/3 the matter referred to the DSB by the European Communities in that document, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements.

1.4.
On 12 January 2001, the parties agreed to the following composition of the Panel:
1.5.
Chairman: Mr. Hugh McPhail

Members: Mr. Gilles Gauthier

Mr. Stephen Powell

1.6.
Japan, Turkey and the United States reserved their rights to participate in the Panel proceedings as third parties.
1.7.
The Panel met with the parties on 18-19 April 2001 and 1 June 2001. It met with the third parties on 19 April 2001.
1.8.
The Panel submitted its interim report to the parties on 25 July 2001. The Panel submitted its final report to the parties on 14 September 2001.

II. FACTUAL ASPECTS

2.1.
This dispute concerns the imposition of definitive anti-dumping measures by the Argentine Ministry of the Economy on imports of ceramic floor tiles from Italy.
2.2.
On 30 January 1998, Cerámica Zanon ("Zanon") filed an application for an anti-dumping investigation with the Dirección de Competencia Desleal ("DCD" – Directorate of Unfair Trade) of the Argentine Ministry of the Economy alleging that imports of ceramic tiles were being exported to Argentina at dumped prices.4 On 25 September 1998, the Ministry of the Economy published a public notice announcing the initiation of an anti-dumping investigation on imports of ceramic tiles from Italy.
2.3.
On 30 November 1998, Assopiastrelle, the association of Italian producers of ceramic tiles, requested the DCD to limit the calculation of individual dumping margins to four or five exporters accounting for around 70 per cent of the exports of the subject product from Italy to Argentina.5 On 12 December 1998, the DCD accepted this request.6 On 10 December 1998, four Italian exporters filed responses to the investigation questionnaire: Ceramica Bismantova "(Bismantova"), Ceramiche Casalgrande ("Casalgrande"), Ceramiche Caesar ("Caesar"), and Marazzi Ceramiche ("Marazzi"). On 24 March 1999, the DCD issued an affirmative preliminary determination ("Preliminary Dumping Determination").7 In that determination, the DCD disregarded the questionnaire replies submitted by the above-mentioned exporters. The DCD proceeded to determine the dumping margin on the basis of the information available on the record, other than that presented by the exporters.8 As the DCD applied the same set of "facts available" to the four exporters concerned, they all were assessed the same dumping margin.
2.4.
On 23 September 1999, the DCD issued an affirmative final determination ("Final Dumping Determination").9 In this determination, the DCD relied predominantly on the information available on the record, other than that presented by the exporters.10 As the DCD applied the same set of "facts available" to the four exporters concerned, an identical dumping margin was assessed for all of them.
2.5.
On 12 November 1999, the Ministry of the Economy, based upon the affirmative final determination regarding the existence of dumping issued by the DCD on 23 September 1999, and the affirmative final determination regarding the existence of injury and causality issued by the CNCE on 3 September 1999,11 imposed definitive anti-dumping measures on imports of ceramic tiles originating in Italy for a period of three years.12 Such measures took the form of specific anti-dumping duties to be collected as the absolute difference between the FOB price invoiced in any one shipment and a designated "minimum export price" also fixed in FOB terms, whenever the former price is lower than the latter. Each of the three size categories used for the dumping margin calculations was assigned its own "minimum export price".

III. PARTIES’ REQUESTS FOR FINDINGS AND RECOMMENDATIONS

A. THE EUROPEAN COMMUNITIES

3.1.
The EC requests that the Panel finds that the anti-dumping measures applied by Argentina with respect to imports of porcellanato originating in Italy are inconsistent with Article 6.8 and Annex II, and Articles 6.10, 2.4, and 6.9 of the AD Agreement.

B. ARGENTINA

3.2.
Argentina requests that the Panel rejects the EC’s claims with respect to the alleged breaches of Article 6.8 and paragraph 6 of Annex II, and Articles 6.10, 2.4 and 6.9 of the AD Agreement.

IV. ARGUMENTS OF THE PARTIES AND THIRD PARTIES

A. CLAIM UNDER ARTICLE 6.8 OF THE AD AGREEMENT

1. The EC

(a) Arguments of the EC in its first written submission in support of its claim under Article 6.8 of the AD Agreement

4.1.
In its first written submission, the EC made the following arguments regarding its claim under Article 6.8 of the AD Agreement.
4.2.
The EC submits that in its Final Dumping Determination the DCD disregarded all the information on normal value and on export prices provided by the four exporters included in the sample and relied instead upon the petitioner’s allegations and import statistics.
4.3.
By disregarding the exporters’ information without any valid justification, the DCD violated Article 6.8 and Annex II of the AD Agreement, which only allow the investigating authorities to resort to "facts available" in those cases where the exporters do not provide timely necessary information or significantly impede the investigation.
4.4.
The EC presented first a number of facts relevant to its claim under Article 6.8.
4.5.
All the four exporters included in the sample submitted complete responses to the questionnaires received from the DCD within the prescribed deadline (at the request of the exporters, the DCD agreed to extend the deadline to submit the questionnaire responses from 30 November 1998 until 9 December 1998; see Final Dumping Determination, Section III.4, p. 9. The four exporters included in the sample filed their responses on 9 December 1998. At a meeting held at the DCD on 10 May 1999, the case-handlers requested that Casalgrande and Bismantova submit copies of invoices covering at least 50 per cent of their sales in Italy and for export, both to Argentina and to third countries, during the period of investigation. The requested invoices were submitted by those two exporters within the deadline of 31 May 1999 set by the DCD. The submission of these invoices is mentioned expressly in the Final Dumping Determination; see Section V.1.3, page 26, paragraphs 6 and 7. The DCD made no further request for additional information). Moreover, the exporters agreed in advance to the verification of their responses, should the DCD consider it necessary (Final Dumping Determination, Section III.6, pp. 15-17).
4.6.
Although the exporters timely provided all the necessary information, the DCD disregarded their responses and resorted to the petitioner’s allegations, for the normal value, and to official import statistics, for the export price.

(i) Normal value

4.7.
According to the table included in page 30 of the Final Dumping Determination (reproduced below as Table I), the DCD calculated three different normal values.

Table I

Source of InformationSupplied byUS$/m2
20 cm x 20 cm
Price list Petitioner 8.65
Invoices (weighted average) Italian Firms 5.54
30 x 30 cm
Price list Petitioner 9.89
Invoices (weighted average) Petitioner 10.16
Invoices (weighted average) Italian Firms 6.70
40 cm x 40 cm
Price lists Petitioner 11.04
Invoices (weighted average) Petitioner 10.83
Invoices (weighted average) Italian Firms 7.10

4.8.
The first normal value was derived by the DCD from a series of price lists submitted by Zanon (although the precise method used by the DCD to derive the normal value from these lists is explained nowhere in the Final Dumping Determination), namely:

(i) the "PrezziInformativi delle Opere Edili in Milano 1997" (reference prices in the building industry in Milan 1997);

(ii) the "Prezzi Informativi dell’Edilizia – febbraio 1997" (information prices in the Building Industry);

(iii) a price list of Bismantova;

(iv) a price list of Casalgrande;

(v) a price list of Floor Gres (an Italian producer not included in the sample);

(vi) a price list of Mirage (an Italian producer not included in the sample); and

(vii) a price list of Cooperativa Ceramica d’Imola (an Italian producer not included in the sample).

4.9.
The producers’ list prices supplied by Zanon provide a rough indication of the prices paid by the end-users of porcellanato. But they bear little resemblance to the prices actually charged to distributors and wholesalers, who normally receive large discounts (of up to 75 per cent of the list price). Thus, they are not comparable to the prices for the export sales to Argentina, which are made to distributors and wholesalers and not to final users.
4.10.
Similarly, the reference prices shown in the other two documents supplied by Zanon are also prices to end-users. Moreover, they are prices for February and August 1997, i.e., for a period not covered by the dumping investigation.
4.11.
The second normal value in Table I is described by the DCD as a weighted average of the prices shown in the invoices supplied by the petitioner. Yet, according to the information available in the public file, Zanon provided to the DCD only seven invoices. In contrast, the four exporters included in the sample reported in their responses several hundred transactions.
4.12.
The third normal value in Table I is the weighted average of the invoice prices reported in their responses by the four exporters included in the sample. As explained below, this normal value was not used subsequently by the DCD in order to calculate the dumping margin. Indeed, as shown in Table V below, had the DCD used this normal value, it would have found no dumping.

(ii) Export price

4.13.
The export prices compared by the DCD to the normal value are shown in the table included on page 37 of the Final Dumping Determination (reproduced here below as Table II).

Table II

SizeUnit FOB price in US$
20 cm x 20 cm 6.43
30 cm x 30 cm 7.00
40 cm x 40 cm 9.84

4.14.
The export prices in Table II have been derived from the Summary Table (Cuadro Resumen) included in the Annex to the Final Dumping Determination, which in turn appears to be a weighted average of the import statistics collected by the Delegación II – Unidad Informática within the Secretaría de Industria, Comercio and Minería and of the data supplied by two importers: Quadri y Cia. and Canteras Cerro Negro S.A ("Cerro Negro").

(iii) Dumping margin

4.15.
The DCD calculated two different dumping margins for each size category of porcellanato. The details of the calculation are set out in two tables included on page 45 of the Final Dumping Determination (reproduced here below as Tables III and IV).

Table III

ProductNormal Value. US$/m2FOB Export price US$/m2Dumping Margin
Porcellanato 20 cm x 20 cm 8.65 6.43 34.52 per cent
Porcellanato 30 cm x 30 cm 10.02 7.00 43.14 per cent
Porcellanato 40 cm x 40 cm 10.94 9.84 11.18 per cent

Table IV

ProductNormal Value. US$/m2FOB Export priceUS$/m2Dumping margin
Porcellanato 20 cm x 20 cm 7.10 6.43 10.42 per cent
Porcellanato 30 cm x 30 cm 8.92 7.00 27.43 per cent
Porcellanato 40 cm x 40 cm 9.66 9.84 ---

4.16.
The export prices in Table III and in Table IV are the same: those shown in Table II. The difference in the level of the dumping margins results exclusively from the use of higher normal values in Table III than in Table IV.
4.17.
The normal values in Table III are a simple (i.e. non-weighted) average of the first two normal values in Table I, i.e. the normal value based on the price lists supplied by Zanon, and the normal value based on the seven invoices provided by Zanon.
4.18.
In turn, the normal values in Table IV are the simple average of the three normal values in Table I, i.e. of the two normal values based on Zanon’s information and the normal value based on the data reported by the exporters included in the sample.
4.19.
Thus, neither of the two dumping margins calculated by the DCD are based on the normal value data provided by the exporters. Such data was not used at all in the first calculation and was arbitrarily averaged with the petitioner’s data in the second calculation.
4.20.
As evidenced by Table V, had the DCD compared the export prices in Table II to the normal value determined by the DCD itself on the basis of the exporters’ responses, it would have found no dumping.

Table V

ProductA) Normal Value US$/m2B) FOB Export price US$/m2C) Dumping margin (A – B))
Porcellanato 20 cm x 20 cm 5.54 6.43 - 0.89
Porcellanato 30 cm x 30 cm 6.70 7.00 - 0.30
Porcellanato 40 cm x 40 cm 7.10 9.84 - 2.74

4.21.
In the Final Dumping Determination, the DCD appears to have regarded the two dumping calculations reproduced in Tables III and IV as being equally relevant. Similarly, Resolución 1385/99 makes no express choice between them. As a result, it is unclear on which of the two dumping margins the anti-dumping measures in place are based.
4.22.
The EC presented next its legal arguments concerning its claim under Article 6.8 of the AD Agreement.
4.23.
The EC recalled that Article 6.8 of the AD Agreement provided that:

In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determinations, affirmative or negative, may be made on the basis of the facts available. The provisions of Annex II shall be observed in the application of this paragraph.

4.24.
Therefore, when making a dumping determination, the investigating authorities may resort to facts available only to the extent that the exporter concerned:

(a) refuses access to necessary information; or

(b) otherwise fails to provide necessary information within a reasonable period of time; or

(c) significantly impedes the investigation.

4.25.
None of those three circumstances was present in this investigation. The four exporters included in the sample cooperated fully in the investigation. They provided all the information requested by the DCD within the prescribed time limits and volunteered their agreement to receive a verification visit, should it be considered necessary by the DCD.
4.26.
The DCD did at no point during the investigation suggest that the exporters failed to provide necessary information or that they impeded in any other way the investigation. Indeed, during the consultations, Argentina did not argue that the exporters’ responses had been disregarded on any of the grounds mentioned in Article 6.8. Instead, Argentina argued that the exporters’ responses had been "considered" by the DCD "on an equal footing" with the information provided by the petitioner, but eventually the investigating authorities decided to rely on the latter.
4.27.
However, the export prices reported by the exporters were totally ignored by the DCD. In turn, the exporters’ normal value information was not used at all in calculating one of the two dumping margins calculated by the Argentinean authorities and was arbitrarily averaged with the petitioner’s data in order to calculate the other dumping margin. Thus, it is beyond question that the DCD effectively rejected the information supplied by the exporters.
4.28.
The position taken by Argentina during the consultations reflects a gross misunderstanding of the requirements imposed by the AD Agreement. Argentina seems to consider that, when making a dumping determination, the investigating authorities have complete discretion to pick and choose data from different sources, including the petitioner, provided that, previously, they have "considered" all of them. That view is manifestly mistaken.
4.29.
The information supplied by each exporter is, in principle, the most direct and reliable source of evidence of that exporter’s normal value and export price (with respect to cost of production data, Article 2.2.1.1 provides expressly that: "For the purpose of paragraph 2, costs shall normally be calculated on the basis of records kept by the exporter or producer under investigation, provided that such records are in accordance with the generally accepted accounting principles of the exporting country and reasonably reflect the costs associated with the production and sale of the product under consideration". This provision is but an expression of the principle underlying the AD Agreement that dumping determinations should be based, in principle, on the normal value and export price information provided by the exporter). The investigating authorities may not disregard such information and substitute information from other sources, including the petitioner, except in the well defined circumstances enumerated in Article 6.8.
4.30.
Argentina’s interpretation would render totally redundant Article 6.8 and Annex II. If the investigating authorities were free to choose between the information provided by the exporters and that supplied by the petitioner, the restrictions imposed by Article 6.8 and Annex II on the use of facts available would become meaningless.
4.31.
Consider, for example, paragraph 1 of Annex II, which provides that:

[…] The authorities should also ensure that the party is aware that if information is not supplied within a reasonable period of time, the authorities will be free to make determinations on the basis of the facts available, including those contained in the application for the initiation of the investigation by the domestic industry.

4.32.
The warning mandated by paragraph 1 of Annex II would be totally unnecessary if, as argued by Argentina, the investigating authorities were entitled to use information provided by the petitioner also where, as in the present case, the exporters have provided timely all the necessary information.
4.33.
Further confirmation is provided by paragraph 7 of Annex II, which states that:

If the authorities have to base their findings, including those with respect to normal value, on information from a secondary source, including the information supplied in the application for the initiation of the investigation, they should do so with special circumspection […].

4.34.
Paragraph 7 evidences that the investigating authorities are not allowed to consider all sources of information "on an equal footing". Paragraph 7 recognises a hierarchy between "primary" and "secondary" sources. For the purposes of establishing whether an exporter is dumping, the "primary source" of information is the normal value and export price information supplied by that exporter. Paragraph 7 confirms that investigating authorities are not free to substitute secondary sources, such as the information provided by the petitioner, to the primary sources. In accordance with Paragraph 7, investigating authorities may resort to secondary sources only when they "have to", i.e. where the relevant primary sources cannot be used as a result of one of the circumstances described in Article 6.8.
4.35.
For the above reasons, the EC submits that, by substituting the information provided by the petitioners and import statistics to the normal value and export price data supplied by the exporters, respectively, the DCD acted inconsistently with Article 6.8 and Annex II.

(b) Arguments of the EC in its first oral statement in support of its claim under Article 6.8 of the AD Agreement

4.36.
In its first oral statement, the EC presented the following arguments with respect to its claim under Article 6.8 of the AD Agreement.
4.37.
The main claim submitted by the EC in this case is based on Article 6.8 and Annex II of the AD Agreement.
4.38.
The DCD disregarded the normal value and export price information provided by the exporters and substituted information from other sources, including the petitioners. This allowed the DCD to find a high margin of dumping where there was none.
4.39.
The AD Agreement only allows the use of "facts available" in one of the three situations specified in Article 6.8, i.e. where the exporters:

(a) refuse access to necessary information; or

(b) otherwise fail to provide necessary information within a reasonably period of time; or

(c) significantly impede the investigation.

4.40.
None of those circumstances was present in this investigation. By disregarding the information provided by the exporters without any valid justification, the DCD violated Article 6.8 and Annex II of the AD Agreement.
4.41.
During the consultations, Argentina argued that the exporters’ responses had not been rejected. Rather, according to Argentina, they had been considered on an "equal footing" with the petitioners’ information.
4.42.
That position is, of course, legally untenable. In its first written submission, Argentina changes its line of defence and argues that that the exporters’ responses were in fact rejected pursuant to Article 6.8.
4.43.
The grounds invoked by Argentina for rejecting the exporters’ responses are either factually inaccurate, or insufficient as a matter of law, or both. Moreover, all of them are ex-post facto justifications. The DCD did not inform the exporters during the investigation of the reasons why their responses had been rejected. Nor are those reasons stated in the Final Dumping Determination. Indeed, the Final Dumping Determination does not even say expressly that the exporters’ responses have been rejected. This has to be inferred from the fact that the exporters’ data are not used at all in one of the two dumping margin calculations made by the DCD and are arbitrarily averaged with the petitioners’ data in the other calculation.
4.44.
It is not possible to address in an oral statement all the inaccurate, misleading or irrelevant assertions made in Argentina’s submission. The EC will attempt, nevertheless, to respond to the main ones, starting with Argentina’s contention that the exporters’ responses were submitted late.

(i) Alleged late submission of the questionnaire responses

4.45.
The original deadline for the submission of the responses was 30 November 1998. At the request of the exporters, that deadline was extended until 9 December 1998. The responses were submitted in the early morning of 10 December 1998.
4.46.
Article 25 of Decreto1,759/72, which implements the Ley de Procedimientos AdministrativosNo. 19,549, allows the filing of documents within the first two working hours of the day following that in which a deadline expires. The questionnaire responses were filed at 10.00 AM of 10 December 1998 (the hour of reception of the responses is stamped on the cover letters). In view of that, the EC understands that, in accordance with Article 25 of Decreto1759/72, the responses must be deemed submitted within the prescribed deadline. It may be added that the representatives of the exporters had informed in advance the DCD that they would make use of the possibility provided in Article 25 of Decreto1,759/72. The DCD raised no objections. The Panel should ask Argentina to clarify this issue.
4.47.
One could assume for the sake of argument that the responses were in fact submitted one day late. No provision of the AD Agreement allows the investigating authorities to resort to "facts available" simply because the party concerned has missed a deadline. Article 6.8 provides that the investigating authority may resort to "facts available" when necessary information is not submitted "within a reasonable period of time", while paragraph 3 of Annex II requires that all information which is submitted "in a timely fashion" should be taken into account.
4.48.
Interpreting these two provisions, the recent panel report on US – Hot Rolled Steel concluded that:

What is a ‘reasonable period’ will not, in all instances be commensurate with pre-established deadlines... a rigid adherence to such deadlines does not in all cases suffice as the basis for a conclusion that information was not submitted within a reasonable period and consequently that facts available may be applied.

Particularly, where information is actually submitted in time to be verified, and actually could be verified, … it should generally be accepted, unless to do so would impede the ability of the investigating authority to complete the investigation within the time limits established by the Agreement (Panel Report on United States – Anti-Dumping Measures on Certain Hot Rolled Steel Products from Japan, WT/DS184/R, circulated on 28 February 2001, at paras 7.54 and 7.55 respectively).

4.49.
The EC agrees. A mere one-day delay, especially at the very outset of the investigation, is clearly an insufficient ground for resorting to "facts available".
4.50.
Argentina also alleges that one of the exporters (Casalgrande) missed the deadline for submitting some supporting invoices. Nevertheless, the delay was, once again, very short: at most three days. Moreover, the invoices were submitted in time to be verified and used by the DCD, and were indeed used in one of the dumping calculations (the invoices were filed on 10 June 1999, and the Final Dumping Determination was not issued until 23 September 1999).
4.51.
More generally, Argentina complains about "repeated request for extensions" of deadlines ("reiteradas solicitudes de prórrogas"). In reality, however, the exporters requested only two extensions: one for filing the responses and another for submitting additional non-confidential summaries and supporting invoices. The DCD agreed to both requests and is estopped from complaining now that, as a result, the information was not submitted "within a reasonable period" or that the extensions impeded the investigation.

(ii) Alleged failure to submit adequate non-confidential summaries

4.52.
Argentina invokes as an additional ground for rejecting the responses that the exporters failed to provide adequate non-confidential summaries.
4.53.
This allegation is, to say the least, ironic. The actual fact is that the DCD’s relentless demands forced the exporters to waive all its confidentiality claims and to disclose to their Argentinean competitors highly sensitive price and cost information.
4.54.
The EC recalls briefly the relevant facts.
4.55.
Together with the questionnaire responses, the exporters submitted non-confidential summaries. In preparing those summaries, the exporters applied the following principles:

(a) non-sensitive information was left unchanged in the summary;

(b) sensitive information covering several years/months was expressed in indexed form (Annexes IV, V and VI); and

(c) other sensitive information was omitted from the summary (Annexes III, VII, VIII, IX, X and XI).

4.56.
The DCD gave no indication to the exporters that the non-confidential summaries were inadequate until the Preliminary Dumping Determination of 24 March 1999, i.e more than three months after the filing of the responses.
4.57.
By letters dated 30 April 1999, the DCD requested the exporters to waive their confidentiality requests or to supply more detailed non-confidential summaries. Specifically, these letters referred to Annexes III, VII,VIII, IX, X and XI, i.e. to the Annexes for which no confidential summary had been provided by the exporters.
4.58.
Argentina now complains that the non-confidential summaries of Annexes IV, V and VI containing indexed figures were insufficient. But this issue was not raised by the DCD in the Preliminary Dumping Determination, or in the letters of 30 April 1999, or indeed at any stage of the investigation.
4.59.
Following the letters of 30 April 1999, the representatives of the exporters met with the case-handlers on 11 May 1999. At that meeting, it was agreed that the exporters would submit non-confidential summaries of Annexes VII (exports to Argentina), VIII (sales in Italy) and IX (export to third countries), in which the names of the customers and the models would be replaced by "virtual codes".
4.60.
On 4 June 1999 the four exporters submitted non-confidential summaries of Annexes VII, VIII and IX in the format agreed at the meeting of 11 May. A "Conversion Table" indicating the correspondences between each code number and the customer and model was submitted to the DCD on a confidential basis.
4.61.
One should emphasize that the summaries submitted on 4 June contained the same information as the confidential responses, with the only difference that the name of the model and of the customer had been replaced by a code number. Thus, the summaries allowed the petitioners to calculate by themselves the dumping margins by comparing the actual prices in the domestic and the export market. Clearly, this is more than enough to permit "a reasonable understanding of the substance of the information submitted in confidence" as required by Article 6.5.1.
4.62.
In spite of that, on 22 June 1999, the DCD sent a letter to the exporters requesting them to waive the confidentiality of the product code. Within two days, the exporters agreed to that request.
4.63.
By way of justification, the letter of 22 June asserted that the disclosure of the product code was necessary so that the DCD "can make a precise comparison" ("… a fin de que la [DCD] pueda realizar una precisa comparación en su informe de determinación final del margen de dumping…"). This suggests that the Argentinean authorities thoroughly misunderstood the purpose of the non-confidential summaries. Article 6.5.2 provides that information provided on a non-confidential basis may be disregarded if the party concerned does not provide a confidential summary. But this does not mean that the investigating authorities must base their findings on the information contained in the non-confidential summaries. If so, the submission of information on a confidential basis would be totally redundant. The non-confidential summaries serve exclusively to inform the other interested parties, so that they can defend adequately their interests.
4.64.
By letter of 3 August 1999, the DCD requested the exporters to waive the confidentiality of the cost of production data contained in Annexes X and XI. On 10 August, the exporters agreed to that request (rather misleadingly, the exporters’ response of 10 August is omitted in Argentina’s first written submission).
4.65.
Contrary to Argentina’s contentions, this sequence of events does not evidence lack of co-operation on the part of the exporters, but rather the opposite.
4.66.
Although the non-confidential summaries submitted by the exporters on 10 December 1998 might not have been sufficiently detailed, the DCD did not inform the exporters of this until more than three months later. Thus, the DCD acted inconsistently with paragraph 6 of Annex II, which requires that "if evidence or information is not accepted, the supplying party should be informed forthwith of the reasons therefor…" (emphasis added by the EC).
4.67.
Once the exporters were advised by the DCD that the non-confidential summaries were not considered adequate, they agreed promptly to each of the successive, and increasingly exacting demands made by the DCD.
4.68.
Eventually, the exporters were led by the DCD’s demands to disclose to their Argentinean competitors all the price and cost-of-production data for the investigation period included in their responses, a type of information which is clearly entitled to confidential treatment in accordance with Article 6.5. The EC is not aware of any other investigating authority in the world that requires the exporters to disclose that type of information, except under a narrowly drawn protective order (see footnote 17 of the AD Agreement), a system which is not available in Argentina.

(iii) Alleged failure to provide supporting documents

4.69.
Yet another ground invoked by Argentina for rejecting the exporters’ responses is their alleged failure to provide "supporting documents", and more particularly to provide copies of a "sufficient" number of invoices for the sales made in the Italian market.
4.70.
Paragraph 1 of Annex II provides that the investigating authorities "should specify in detail the information required" (emphasis added by the EC). The DCD’s questionnaire did not require the exporters to provide copies of a "sufficient" number of invoices. Therefore, Argentina cannot complain now if the exporters did not do so in their questionnaire responses.
4.71.
The only reference to invoices is found in Section B of the questionnaire ("Exports to Argentina"), which requests the exporters to provide "probatory documents which help to better understand the transactions" ("documentación probatoria que ayude a una mejor comprensión de la operación"), including invoices. This suggests that the DCD was interested in receiving only a few examples of invoices. This would accord with the practice of most investigating authorities, which is to ask for invoices during the subsequent on-the-spot verification, and not as part of the questionnaire response.
4.72.
Argentina argues now that one of the introductory paragraphs to the questionnaire stated that the respondents should supply "supporting documents" ("documentación respaldatoria"). But that reference is too vague to meet the requirements of paragraph 1 of Annex II. Moreover, taken literally, it would have required the exporters to provide copies not only of the invoices, but of all the accounting and cost records that are usually examined in the course of an on-the-spot verification.
4.73.
Even though, with the sole exception just mentioned, the questionnaire did not require specifically to provide copies of invoices, the exporters did provide, by way of example, some copies of invoices.
4.74.
At any rate, the Preliminary Dumping Determination did not mention the alleged failure to provide "supporting documents" as a reason for rejecting the responses. Rather, as mentioned before, the Preliminary Dumping Determination suggested that the responses were rejected because the non-confidential summaries were deemed inadequate.
4.75.
Nor did the letters of 12 April 1999 mention specifically the alleged failure to provide "supporting documents", contrary to what is repeatedly asserted in Argentina’s first written submission. Those letters referred exclusively to alleged deficiencies of the non-confidential summaries.
4.76.
It was only at the meeting of 11 May 1999 that the case-handlers requested specifically for the first time that Casalgrande and Bismantova, the two main exporters, provide copies of invoices covering an "important" volume of sales. The case-handlers justified that request on the grounds that they could not conduct on-the-spot verifications in Italy and, therefore, needed to check the responses "from their offices".
4.77.
In response to the request made at the meeting of 11 May, the exporters concerned submitted copies of invoices covering approximately 50 per cent of the sales in Italy and of the exports to Argentina and third countries (together with a translation into Spanish of each invoice!).
4.78.
The DCD made no further request for "supporting documents" during the remainder of the investigation. The exporters, therefore, assumed that the DCD was satisfied with the documents submitted.

(iv) Alleged lack of representativeness of the sample of exporters

4.79.
Argentina also invokes the lack of representativeness of the sample of exporters as a reason for resorting to "facts available".
4.80.
The EC rejects the contention that the sample was not representative. What matters is whether the exports made by the selected exporters were representative of the exports to Argentina covered by the investigation, and not whether the domestic sales made by the selected exporters were representative of the domestic sales made by all the Italian producers of porcellanato (including those made by the more than 100 producers which did not export to Argentina).
4.81.
From that perspective, it is beyond question that the sample was sufficiently representative since the four selected exporters accounted for more than 70 per cent of all the Italian exports to Argentina during 1997.
4.82.
Article 6.10 confirms that this is the relevant criterion. It provides that the examination may be limited to a reasonable number of exporters by using statistically valid samples or, as an alternative, to "the largest percentage of the volume of exports from the country in question which can reasonably be investigated".
4.83.
Furthermore, even assuming that the sample were in fact not sufficiently representative, that would still not justify the DCD’s decision to resort to "facts available". Article 6.10 contains no provision authorising the investigating authorities to resort to "facts available" in such circumstances. The only options available under Article 6.10 would be: (1) to enlarge the sample; (2) to choose a new sample; or (3) to extend the examination to all the exporters.
4.84.
Argentina suggests that the alleged lack of representativeness of the sample amounts to a refusal to provide necessary information in the sense of Article 6.8. However, the decision to limit the examination to a sample of exporters was a decision taken by the DCD itself. Argentina cannot fault now the non-selected exporters for failing to provide information that they were not requested to provide.
4.85.
Moreover, the DCD did at no point during the investigation inform the exporters or Assopiastrelle that the sample was not considered representative. It was only in the Final Dumping Determination that the DCD made for the first time some vague remarks in that sense. Nevertheless, even at that late stage, the DCD refrained from drawing any conclusions. Thus, once again, this is but an ex post justification.
4.86.
Argentina further suggests that the lack of representativeness of the sample could be established by the DCD only at a late stage of the investigation because of the delay in providing "supporting documents". This is not true. As explained before, the "supporting documents" in question were supplied as soon as they were requested by the DCD. Moreover, nothing prevented the DCD from checking the representativeness of the sample on the basis of the confidential information contained in the questionnaire responses filed on 10 December 1998.
4.87.
Furthermore, given Argentina’s view that the percentage of domestic sales, and not the percentage of exports, is the decisive criterion, the DCD could, and indeed should have requested that information from Assopiastrelle before taking any decision on the sampling.

(v) Other alleged deficiencies

4.88.
Argentina also alleges in passing a series of miscellaneous deficiencies in the questionnaire responses. The EC submits that some of them were not such, while the others were minor omissions which did not warrant the DCD’s decision to reject the responses.
4.89.
First, Argentina alleges that Caesar and Marazzi did not provide information with respect to their export sales to third countries. This is true. But Argentina misleadingly omits to mention that the questionnaire allowed the exporters not to provide such information if the domestic sales were sufficiently representative. Caesar and Marazzi relied expressly upon that possibility.
4.90.
Second, Argentina contends that Marazzi did not provide cost-of-production data for the models exported to Argentina. However, Marazzi explained in its response that the models exported to Argentina were the same as those sold in Italy and had the same cost of production, except for the differences in selling expenses.
4.91.
Third, Argentina complains that three of the exporters did not provide a Spanish translation of their balance sheet. Again, this is correct but cannot justify the rejection of the responses. The requested translation cannot be considered as "necessary information" in the sense of Article 6.8, given that the essential content of the document in question were figures, that Italian and Spanish are closely related and that, in particular, the accounting terminology is very similar in both languages. Moreover Italian is widely understood in Argentina.
4.92.
It is worth noting that the DCD accepted as good the "translation" provided by Marazzi. Yet Marazzi limited itself to translate one word in the front page, namely the word "esercicio", which Marazzi rendered somewhat inaccurately as "año", the precise translation being "ejercicio". This confirms that the requested translations were by no means necessary.
4.93.
Finally, Argentina complains that Bismantova provided the information requested in Annex VI (a summary table of the sales made during the last four years in different markets) in Italian Lire instead of in US$. With respect, it is simply ridiculous to pretend that this minor omission impeded significantly the investigation.

(c) Replies of the EC to the first set of questions by the Panel relating to the EC’s claim under Article 6.8 of the AD Agreement

4.94.
The EC replied to the first set of questions by the Panel relating to the EC’s claim under Article 6.8 of the AD Agreement as follows.
4.95.
The Panel asked the parties whether, in their view, the DCD rejected the information from the exporters for one of the reasons set out in Article 6.8 AD Agreement. The Panel further asked whether reference was made in the record to one of these reasons and, if so, where. The Panel also asked under what circumstances an investigating authority may resort to secondary source information outside the specific circumstances of Article 6.8 AD Agreement.
4.96.
To this question, the EC provided the following reply.
4.97.
As explained in the EC’s first written submission, during the consultations Argentina did not argue that the information submitted by the exporters had been rejected on any of the grounds set out in Article 6.8. Instead, Argentina argued that the exporters’ information had been "considered" on an "equal footing" with the information supplied by the petitioner. This suggests that the DCD based its final determination on the erroneous premise that the investigating authority is free to use secondary sources of information, such as import statistics or data supplied by the petitioner, even if the circumstances specified in Article 6.8 are not present.
4.98.
As discussed in the EC’s first written submission, that position is untenable under the AD Agreement. Predictably, in its first written submission Argentina invokes a misunderstanding on the part of the EC and argues that the DCD did in fact reject the exporters’ information for the reasons set out in Article 6.8.
4.99.
Argentina’s new position is not supported by the record of the investigation. The Final Dumping Determination does not mention anywhere that the exporters’ information had to be rejected for any of the reasons set out in Article 6.8. Moreover, the DCD did at no point during the investigation inform the exporters that their responses had been rejected for the reasons set out in Article 6.8, contrary to the requirement imposed by paragraph 6 of Annex II.
4.100.
Argentina’s new position also is contradicted by the fact that the DCD did use the exporters’ information in one of the two dumping margin calculations contained in the Final Dumping Determination, albeit arbitrarily averaged with secondary source information. Obviously, this would not have been possible if the exporters had failed to provide necessary information, or if such information had been deemed unreliable by the DCD.
4.101.
The Panel recalled that Argentina’s first written submission alleged that the exporters’ questionnaire responses were deficient in many ways. In particular, that such questionnaire responses were submitted late, were not fully translated, lacked public summaries of confidential information sufficiently detailed, lacked some currency conversions, failed to report data on exports to third countries and costs of the product exported, and lacked supporting documentary evidence. The Panel asked Argentina which of these deficiencies, if any, were relied upon by the DCD for its final determination. The Panel further asked if Argentina could provide the Panel with the relevant references in either the report accompanying the final determination or in the administrative record.
4.102.
To this question, the EC provided the following reply.
4.103.
The DCD’s Final Dumping Determination does not say anywhere that the exporters’ information had to be rejected for any of the reasons stated in Article 6.8. Nor did the DCD inform the exporters that their responses had been rejected, as required by paragraph 6 of Annex II.
4.104.
The following is a summary of the references made in the record to the grounds invoked now by Argentina in order to reject the responses.

(i) Late submission of the questionnaire responses and of supporting evidence

4.105.
The Preliminary Dumping Determination and the Final Dumping Determination record the dates on which the exporters’ submissions were made. But they make no suggestion to the effect that information was submitted late or that it was rejected for that reason.

(ii) Non-confidential summaries

4.106.
The Preliminary Dumping Determination suggests that the information on normal value provided by the exporters was disregarded for reasons related to the confidentiality requests, but such reasons are not specified. No similar suggestion is found in the export price section of the Preliminary Dumping Determination.
4.107.
The DCD’s letters of 30 April 1999 requested the exporters to waive their confidentiality requests or supply more detailed non-confidential summaries of Annexes III, VII, VIII, IX, X, and XI. Those letters make no reference to the non-confidential summaries of Annexes IV, V and VI.
4.108.
The letter of 22 June 1999 requested the exporters to disclose the "product code" included in the non-confidential summaries of Annexes VII and VIII submitted on 4 June 1999.
4.109.
The letter of 3 August 1999 requested the exporters to waive the confidentiality requests or supply more detailed non-confidential summaries of Annexes X and XI.
4.110.
The Final Dumping Determination records the above letters and the exporters’ replies. It does not mention anywhere that the information submitted by the exporters in response to the DCD’s requests was deemed insufficient or that the exporters’ normal value and export price information was rejected because the exporters failed to disclose confidential information or provide adequate non-confidential summaries.

(iii) Supporting evidence

4.111.
The Preliminary Dumping Determination did not mention the lack of supporting evidence, and in particular of invoices. Nor was this supposed deficiency mentioned in the letters of 30 April 1999. This issue was raised for the first time by the DCD at the meeting of 11 May 1999.
4.112.
The letters of 22 June 1999 and of 3 August 1999 contain no reference to this alleged deficiency.
4.113.
The Final Dumping Determination records that Bismantova and Casalgrande submitted the requested invoices on 7 and 11 June 1999, respectively. It makes no suggestion to the effect that the exporters failed to provide sufficient supporting invoices (or any other supporting evidence), or that the normal value and export price information supplied by the exporters was disregarded for that reason.

(iv) Representativeness of the domestic sales

4.114.
The supposed lack of representativeness of the domestic sales reported by the exporters was mentioned for the first time in the Final Dumping Determination. Moreover, the DCD did not draw any conclusions from this.

(v) Currency conversions

4.115.
The Preliminary Dumping Determination records that the exporter Bismantova completed the tables in Annex VI in Italian lire and provided exchange rates between that currency and the US$, but attaches no consequences to this. This issue was not raised again until Argentina’s first written submission to the Panel.

(vi) Export sales to third countries

4.116.
The Preliminary Dumping Determination records that Marazzi and Caesar did not report export sales to third countries in Annex IX, together with the explanations given by both exporters to the effect that such information was not provided in accordance with the instructions contained in the questionnaire, which only required to complete Annex IX in the event that the volume of domestic sales was not sufficiently representative. The Preliminary Dumping Determination attaches no consequences to this. This issue was not raised again by the DCD and is not mentioned in the Final Dumping Determination.

(vii) Cost-of-production data for the exported merchandise

4.117.
The Preliminary Dumping Determination records that Marazzi did not report cost of production data for the exported merchandise in Annex XI, together with Marazzi’s explanation that the cost of production of the exported merchandise was the same as that of the merchandise sold in Italy. The Preliminary Dumping Determination attaches no consequences to this. The issue was not raised again by the DCD during the investigation and is not mentioned in the Final Dumping Determination.

(viii) Translation of accounting documents

4.118.
The Preliminary Dumping Determination mentions that Bismantova, Casalgrande and Caesar did not provide a Spanish translation of their balance sheet, but attaches no consequences to this. The issue was not raised again by the DCD during the investigation.
4.119.
The Panel recalled that Argentina, in paragraph 39 of its first written submission, states that "the submission of information and documentation for which confidential treatment is requested constitutes a limiting factor with respect to the analysis and public conclusions of the implementing authority" (emphasis added by Argentina). The Panel asked Argentina whether, in its opinion, the confidential nature of the information submitted constituted a constraint on the investigating authority’s ability to base its determination on that information. The Panel further asked Argentina to explain in which way it considered that confidentiality limited the DCD’s analysis in this case. The Panel also asked the EC to comment on the above-quoted statement from Argentina.
4.120.
To this question, the EC provided the following reply.
4.121.
Argentina’s interpretation is mistaken. Articles 6.5.1 and 6.5.2 of the Anti-Dumping Agreement do not require the investigating authority to base its findings on non-confidential information. Indeed, if so, the submission of confidential information by the parties would be totally redundant.
4.122.
Article 6.5.2 provides that the investigating authority may, subject to certain requirements, disregard confidential information. This provision would be unnecessary if the investigating authority had to use always non-confidential information.
4.123.
Further confirmation is provided by Articles 12.2.1 and 12.2.2, which stipulate that the notice or the report of the imposition of provisional and definitive measures, respectively, shall pay due regard to the requirement for the protection of confidential information. Again, this would have been unnecessary if the dumping and injury determinations had to be based exclusively on non-confidential information.
4.124.
Dumping and injury determinations require necessarily the use of information which is confidential by nature, including information which is not capable of summarization. Argentina’s interpretation would make it impossible for the investigating authority to make an accurate dumping or injury determination without violating its duties under Article 6.5. The present case proves this point. The DCD was able to make a dumping determination (partially) based on non-confidential information supplied by the exporters only because the exporters had been forced previously to relinquish virtually all their confidentiality claims.
4.125.
The Panel asked the Parties whether they drew a distinction between the obligation of authorities to protect confidential information from disclosure, on the one hand, and the obligation of authorities to use for their determinations exporter data that meets the requirements of the Agreement.
4.126.
The EC replied that the investigating authority must base its determination of dumping on information provided by the exporter, including that for which confidential treatment has been requested. The investigating authority may not disregard the information provided in confidence by the exporter and resort to "facts available" except in the circumstances specified in Article 6.5.2.
4.127.
The Panel recalled Argentina’s statement that, according to the DCD, the non-confidential summaries submitted by the exporters were insufficient under Article 6.5.1 AD Agreement, since this provision required that such summaries permit a "reasonable understanding of the substance of the information provided in confidence". The Panel asked the parties how did they interpret the objective of Article 6.5.1, that is, whose "reasonable understanding" was being addressed – that of the public or that of the investigating authorities?
4.128.
The EC replied that the non-confidential summaries provided for in Article 6.5.1 serve exclusively to inform the other interested parties. They constitute a compromise between the conflicting objectives of protecting the confidentiality of the information supplied by each party and of allowing the other parties to defend adequately their interests.
4.129.
The Panel asked the parties whether the following summary of relevant facts was correct. The exporters requested confidentiality for most of the information provided in their questionnaire reply. On 30 April 1999, the DCD sent letters to the exporting firms requesting them to consider providing a more detailed non-confidential summary than that already provided in the questionnaire replies, to elaborate on the information supplied, or to remove the requested confidentiality that had been granted by the investigating authority. More specifically, information on sales in the Italian market (Annex VIII) and the cost structure of the goods in the domestic Italian market (Annex X) was requested. On 4 June 1999, the exporting firms submitted public and confidential information concerning domestic sales of the product concerned, with conversion tables that were submitted as confidential information. On 7 June 1999, Bismantova and Casalgrande further submitted as confidential information sales invoices relating to the Italian domestic market. By its letters of 22 June 1999 and 3 August 1999, the DCD requested the exporting firms to reconsider the requested confidentiality of the information concerning product codes and the production costs. The DCD’s report acknowledged that the exporting firms agreed by letters of 23 and 24 June that the product code item could be made non-confidential. On 10 August 1999, the exporting firms further agreed to remove the confidentiality of the item concerning cost of production provided that the names of the companies relating to each cost structure were not revealed.
4.130.
To this question, the EC provided the following reply.
4.131.
The above summary of the facts is generally correct. Nevertheless, some additional clarifications were in order:

(a) The letters of 30 April 1999 did not request the exporters to provide "information on sales in the Italian market (Annex VIII) and the cost structure of the goods in the domestic Italian market (Annex X)". Those letters mentioned exclusively the supposed deficiencies of the non-confidential summaries. Moreover, the letters addressed to Bismantova and Caesar did not mention Annex X.

(b) The EC recalls that on 11 May 1999 representatives of the exporters held a meeting with the case-handlers, in which the DCD specified its requests.

(c) On 4 June 1999, the four exporters did not submit "public and confidential information concerning domestic sales", but rather a non-confidential summary of both their domestic and export sales as previously reported in their questionnaire responses. In addition, as indicated correctly in the summary, they submitted in confidence conversion tables, with the product and customer codes.

(d) On 7 and 10 June 1999, Casalgrande and Bismantova submitted not only invoices of domestic sales, but also invoices of export sales to Argentina and to third countries.

(e) The letter of 22 June 1999 requested exclusively the disclosure of the "product code" used in the non-confidential summaries of Annexes VII and VIII submitted on 4 June 1999. The disclosure of the cost of production tables (Annexes X and XI) was requested for the first time in the letter of 3 August 1999.

4.132.
The Panel asked the parties to clarify whether, in light of the exporters’ agreement to re-classify the information as requested, the concerns the DCD raised with regard to the confidential nature of the information at the time of the preliminary determination (recorded on page 23 of the DCD’s Final Dumping Determination) had been resolved by the time of the final determination. The Panel further asked the parties to indicate which of the exporters’ information, if any, was still confidential at the time of the final determination. If certain information had remained as confidential, the Panel also asked the parties to clarify whether non-confidential summaries were provided for this confidential information.
4.133.
To this question, the EC provided the following reply.
4.134.
In response to the DCD’s requests, the exporters were forced to waive virtually all their confidentiality requests. Thus, they assumed that all the concerns of the DCD with respect to this issue had already been resolved by the time of the final determination. Indeed, as mentioned above, the Final Dumping Determination does not say anywhere that that the information submitted by the exporters in response to the DCD’s requests was deemed insufficient or that the exporters’ normal value and export price information was rejected because the exporters failed to disclose confidential information or provide adequate non-confidential summaries.
4.135.
More specifically, at the time of the final determination, the exporters maintained the following confidentiality requests:

(a) Annex III (list of customers): the exporters did not provide a non-confidential summary for this Annex. The EC considers that this information is not capable of summarization (see Panel Report on Guatemala – Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000, at para. 8,211).

(b) Annex IV (information on the exporter’s market situation), Annex V (summary of sales in different markets – quantity) and Annex VI (summary of sales in different markets – value): the exporters provided non-confidential summaries together with their questionnaire responses of 10 December 1998, in which the actual figures had been replaced by indexes. Argentina raised no objections with respect to the non-confidential summaries of these Annexes until its first written submission in these proceedings.

(c) Annex VII (export sales to Argentina), Annex VIII (domestic sales) Annex IX (export sales to other markets): following the DCD’s requests of 30 April 1999 and of 22 June 1999, the exporters maintained their confidentiality requests only with respect to the customer code.

(d) Annexes X and XI (cost of production tables): in response to the DCD’s request of 3 August 1999, the exporters accepted to disclose these Annexes, provided that the name of the exporter was kept confidential.

(e) Invoices: the exporters requested confidential treatment for the invoices submitted on 7 and 10 June 1999. Nevertheless, the contents of these invoices are summarised in the non-confidential summaries provided on 4 June 1999.

4.136.
The Panel asked Argentina to explain the relevance of the DCD’s finding that the four exporters included in the sample only represented 1.92 per cent of the total volume of sales in the home market. In particular, did the 1.92 per cent refer to all sales made by Italian producers, including those with no exports to Argentina? If this was the case, the Panel asked the parties whether they were of the view that, as a legal matter, companies selected for an individual determination have to account collectively for a large percentage of all home market sales made.
4.137.
To this question, the EC provided the following reply.
4.138.
Article 6.10 allows the investigating authority to limit the examination to (1) a statistically valid sample of exporters; or (2) the largest percentage of the volume of exports from the country in question which can reasonably be investigated. The question posed by the Panel may arise only where the investigating authority resorts to the first method.
4.139.
In the present case, it is unclear which of the two methods permitted by Article 6.10 was followed by the DCD, even if both parties have been referring, without too much precision, to a "sample" of exporters. The following comments are, therefore, based on the assumption that the DCD intended to select a "statistically valid sample".
4.140.
The purpose of an anti-dumping investigation is to establish whether the exports under investigation are dumped. The existence of dumping does not require the existence of domestic sales. Therefore, there is no reason why a sample should include a large percentage of domestic sales.
4.141.
This interpretation is supported by the second method provided in Article 6.10. If the percentage of domestic sales is irrelevant for the purposes of that method, why should it be considered as decisive when applying the first method?
4.142.
At any rate, assuming that the percentage of domestic sales were in fact relevant in assessing whether a sample is statistically valid for the purposes of Article 6.10, Argentina disregards that, as noted by Japan in its third party submission, a sample covering a relatively small percentage of the relevant universe may nevertheless be "statistically valid".
4.143.
The Panel asked the parties to confirm whether that the four exporters included in the sample accounted, in quantity terms, for around 70 per cent of all exports made.
4.144.
The EC replied that this had been the case.
4.145.
The Panel asked the parties to comment on the relevance of the fact that the DCD initially accepted the sampling methodology suggested by the exporters’ association, although the sampled firms were later found by the DCD to cover too few home sales.
4.146.
The EC replied that the decision to limit the examination to the four exporters concerned was a decision of the DCD, even if it was suggested by Assopiastrelle. The DCD could and should have verified in advance the representativeness of the sample. Consequently, the DCD is estopped from claiming now that the sample was not representative.
4.147.
The Panel recalled that the exporters’ questionnaire made reference to the provision of supporting documentation in two places. In the introductory section, while indicating that supporting documentation must be provided, it also allowed exporters the possibility to identify instead the source of the information reported. In addition, Section B requested the submission of any supporting documentation that would help the DCD to better understand the mechanics of the reported transactions. The Panel asked Argentina whether it was of the view that, according to the specifications of the questionnaire used by the DCD, respondents were obliged to provide full documentary evidence of each and every sale reported. The Panel further asked Argentina to clarify whether any of the exporters chose to comply with the requirement set out in the introductory section of the questionnaire by identifying the source of its information. If no exporters took advantage of that option, the Panel asked Argentina whether it was of the view that the DCD was entitled to require the submission of "additional" supporting documentation without specifying what that information should consist of.
4.148.
The EC replied that the exporters’ replies to Annexes VII, VIII and IX include the number and the date of the sales invoices from which the information reported in those Annexes was derived. Thus, in any event, those Annexes would satisfy the requirement to indicate the "source of the information".
4.149.
The Panel recalled that, on page 14 of the EC’s first written submission, the EC argued that the Argentine authority acted inconsistently with paragraph 6 of Annex II of the AD Agreement, by failing to inform the exporters that their responses had been rejected and by failing to state the reasons therefor. The Panel asked the EC whether this is not a separate claim of the EC but rather an additional argument in support of the EC’s claim that the DCD disregarded the normal value and export price information of the exporters inconsistently with Article 6.8 and Annex II.
4.150.
The EC replied that this was the case.

(d) Replies of the EC to the questions made by Argentina, following the first meeting of the Panel with the parties, that relate to the EC’s claim under Article 6.8 of the AD Agreement

4.151.
The EC replied to the questions made by Argentina relating to the EC’s claim under Article 6.8 of the AD Agreement as follows.
4.152.
Argentina asked the EC why it considers irrelevant the legal requirement to provide translations set forth in article 28 of Decree 1759/72, when the EC regards as mandatory article 25 of that same Decree, regarding deadlines for submitting documents in administrative proceedings conducted in Argentina.
4.153.
To this question, the EC replied as follows.
4.154.
The two situations can be easily distinguished.
4.155.
The interpretation of the obligations imposed upon the investigating authority by the AD Agreement cannot be left to the discretion of each Member. Thus, the definition of what constitutes "necessary information" or a "reasonable period" made in the domestic law of each Member is subject to review by Panels.
4.156.
Nonetheless, each Member’s own interpretation of those notions creates legitimate expectations for the interested parties. The investigating authority is estopped from claiming that information submitted within the deadline which it has prescribed (computed according to the applicable domestic rules) has not been submitted within a "reasonable period".
4.157.
Argentina asked the EC what value the EC attaches to non-confidential summaries, bearing in mind the obligations arising from Article 6.5.1, if, as argued by the EC in its first oral statement, "the non confidential summaries serve exclusively to inform the other interested parties, so that they can defend adequately their interests".
4.158.
The EC replied that its answer to this question was reflected in its answers to questions 3, 4 and 5 made by the Panel following the first meeting.
4.159.
Argentina asked the EC why it believed there would not be a justification for resorting to the "facts available" even in situations where samples turn out to be admittedly not representative.
4.160.
The EC replied that the decision to limit the examination to a sample of exporter is taken by the investigating authority, which must satisfy itself in advance that the sample is sufficiently representative. Thus, the situation described in the question might arise only as a result of the investigating authority’s own fault. Exporters should not be penalized for the lack of diligence of the investigating authority.
4.161.
The circumstances in which the investigating authority may resort to facts available are enumerated exhaustively in Article 6.8. Neither that provision, nor Article 6.10 authorise the investigating authority to use facts available in the event that the sample turns out not to be sufficiently representative in the course of the investigation.
4.162.
Argentina asked the EC how one check the veracity of the pricing information regarding home-market sales in the absence of supporting documentation relating to those sales. Argentina further asked the EC how one can check the veracity of this kind of information in cases where the investigating authorities are unable to conduct an on-site verification. Argentina also asked the EC why it gave greater value to an on-site verification than to the provision of supporting documentation.
4.163.
The EC replied that its point was simply that the questionnaire did not request the exporters to provide copies of all invoices and that, moreover, this would have been a most unusual request in light of the verification methods usually followed by most investigating authorities.
4.164.
Argentina asked the EC why it considered "ridiculous" the issue of currency conversions, even through Article 2.4 of the AD Agreement specifically dealt with the way in which those conversions shall take place. Argentina further asked the EC whether it considered that exchange rates did not have an impact in the calculation of dumping margins. Argentina also asked the EC whether it was of the view that it was unreasonable to request the submission of exchange rate data in order to avoid assigning staff to calculate the value of each of the sales falling within the period of investigation.
4.165.
The EC replied that the alleged deficiency concerned exclusively Annex VI, which contains a summary of the sales by market. The 24 amounts reported in that Annex were not used in the dumping calculation. In any event, they can be easily converted into US$ by using the exchange rates provided by Bismantova or other publicly available rates.

(e) Arguments of the EC in its second written submission in support of its claim under Article 6.8 of the AD Agreement

4.166.
In its second written submission, the EC made the following arguments in support of its claim under Article 6.8 of the AD Agreement.
4.167.
During the consultations, Argentina argued that the information submitted by the exporters had not been rejected. Rather, according to Argentina, that information was "considered" by the DCD on an "equal footing" with the information supplied by the petitioner.
4.168.
That position is clearly untenable under the AD Agreement. Thus, predictably, in its first written submission Argentina invokes a misunderstanding on the part of the EC and argues that the DCD did in fact reject the exporters’ information for the reasons set out in Article 6.8 of the AD Agreement.
4.169.
The grounds invoked now by Argentina for resorting to "facts available" are either wrong as a matter of fact, or clearly insufficient as a matter of law, or both.
4.170.
Furthermore, Argentina’s new position is not supported by the record of the investigation. The DCD did at no point during the investigation inform the exporters that their responses had been rejected for the reasons set out in Article 6.8, contrary to the requirement imposed by paragraph 6 of Annex II. Moreover, the Final Dumping Determination does not mention anywhere that the exporters’ information had to be rejected for any of those reasons, contrary also to paragraph 6 of Annex II.

(i) Alleged late submission of the questionnaire responses

4.171.
In its first written submission, Argentina contended that the exporters filed their responses to the questionnaire one day after the expiry of the deadline imparted by the DCD.
4.172.
Nevertheless, in its first oral statement Argentina qualified this by noting that:

Esto no implica de nuestra parte afirmar que la presentación efectuada por las empresas exportadoras el 10 de diciembre fuera considerada una falta procesal, pero de todos modos, destacamos con esto la buena fe de la Autoridad de Aplicación en considerar la presentación efectuada a pesar de ser tardía (Argentina’s first oral statement, at para. 11).

4.173.
Thus, Argentina seems to admit that the alleged delay in submitting the questionnaire responses is not a sufficient ground for resorting to "facts available" or, at least, that it was not considered as such by the DCD. In view of that, it is difficult to understand what is the relevance, if any, of this argument.
4.174.
At any rate, it is not true that the responses were submitted late by the exporters. Article 25 of Decreto1,759/72, which implements the Ley de Procedimientos AdministrativosNo. 19,549, allows the filing of documents within the first two working hours of the day following that in which a deadline expires. The questionnaire responses were filed at 10.00 AM of 10 December 1998 (the hour of reception of the responses is stamped on the cover letters) and, therefore, within the prescribed deadline. It may be added that the representatives of the exporters had informed in advance the DCD that they would make use of the possibility provided in Article 25 of Decreto1,759/72. The DCD raised no objections.
4.175.
Argentina also alleges that one of the exporters (Casalgrande) missed the deadline for submitting some supporting invoices. Nevertheless, the delay was short: at most three days. Moreover, the EC recalls that no provision of the Anti-Dumping Agreement allows the investigating authorities to resort to "facts available" simply because the party concerned has missed a deadline. Article 6.8 provides that the investigating authority may resort to "facts available" when necessary information is not submitted "within a reasonable period of time", while paragraph 3 of Annex II requires that all information which is submitted "in a timely fashion" should be taken into account.
4.176.
Interpreting these two provisions, the recent panel report on US – Hot Rolled Steel concluded that:

What is a ‘reasonable period’ will not, in all instances be commensurate with pre-established deadlines... a rigid adherence to such deadlines does not in all cases suffice as the basis for a conclusion that information was not submitted within a reasonable period and consequently that facts available may be applied.

Particularly, where information is actually submitted in time to be verified, and actually could be verified, … it should generally be accepted, unless to do so would impede the ability of the investigating authority to complete the investigation within the time limits established by the Agreement (Panel Report on United States – Anti-Dumping Measures on Certain Hot Rolled Steel Products from Japan, WT/DS184/R, circulated on 28 February 2001, at paras. 7.54 and 7.55).

4.177.
Casalgrande submitted the requested invoices in time to be used by the DCD (the invoices were filed on 10 June 1999, and the Final Dumping Determination was not issued until 23 September 1999). And, indeed, the DCD did use them in one of the dumping calculations. Therefore, the DCD cannot pretend now that this delay impeded the investigation. Moreover, the DCD did not inform Casalgrande that the evidence filed on 10 June 1999 had been rejected. Nor is the rejection of that evidence mentioned in the Final Dumping Determination.
4.178.
More generally, Argentina complains about "repeated request for extensions" of deadlines ("reiteradas solicitudes de prórrogas"). In reality, however, the exporters requested and obtained only two extensions: one for filing the responses and another for submitting additional non-confidential summaries and supporting invoices. The DCD agreed to both requests and cannot complain now that, as a result, the information was not submitted "within a reasonable period" or that the extensions impeded the investigation.
4.179.
Finally, the EC rejects the contention made by Argentina in its oral statement, according to which the deadline for submitting the questionnaire responses would have been successively "extended" by the DCD from 30 November 1998 until 10 August 1999, i.e. until the date were the exporters responded to the DCD’s letter of 3 August 1999. The letters of 30 April 1999, 22 June 1999 and 3 August 1999 did not grant any "extensions" for answering to the questionnaire responses. They contained additional requests to remedy the alleged deficiencies of the non-confidential summaries, which were promptly and satisfactorily answered by the exporters.

(ii) Alleged failure to submit adequate non-confidential summaries

4.180.
Argentina invokes as an additional ground for rejecting the responses that the exporters failed to provide adequate non-confidential summaries.
4.181.
This allegation is, to say the least, ironic. The actual fact is that the DCD’s relentless demands forced the exporters to waive all its confidentiality claims and to disclose to their Argentinean competitors highly sensitive price and cost information.
4.182.
Together with the questionnaire responses, the exporters submitted non-confidential summaries. In preparing those summaries, the exporters applied the following principles:

(a) non-sensitive information was left unchanged in the summary;

(b) sensitive information covering several years/months was expressed in indexed form (Annexes IV, V and VI); and

(c) other sensitive information was omitted from the summary (Annexes III, VII, VIII, IX, X and XI).

4.183.
The DCD gave no indication to the exporters that the non-confidential summaries were inadequate until the Preliminary Dumping Determination of 24 March 1999, i.e. more than three months after the filing of the responses.
4.184.
By letters dated 30 April 1999, the DCD requested the exporters to waive their confidentiality requests or to supply non-confidential summaries. Specifically, the letters addressed to Bismantova and Marazzi referred to Annexes III, VII,VIII, IX, X and XI, whereas those addressed to Bismantova and Caesar mentioned only Annexes III, VII, VIII and IX.
4.185.
Argentina now complains that the non-confidential summaries of Annexes IV, V and VI containing indexed figures were insufficient. But this issue was not raised by the DCD in the Preliminary Dumping Determination, or in the letters of 30 April 1999, or indeed at any stage of the investigation.
4.186.
Following the letters of 30 April 1999, the representatives of the exporters met with the case-handlers on 11 May 1999. At that meeting, it was agreed that the exporters would submit non-confidential summaries of Annexes VII (exports to Argentina) and VIII (sales in Italy), in which the names of the customers and the models would be replaced by "virtual codes". No requests were made with respect to the other Annexes for which the exporters had requested confidential treatment.
4.187.
On 4 June 1999 the four exporters submitted non-confidential summaries of Annexes VII and VIII in the format agreed at the meeting of 11 May 1999. A "Conversion Table" indicating the correspondences between each code number and the customer and model was submitted to the DCD on a confidential basis.
4.188.
It bears emphasising that the non-confidential summaries submitted on 4 June 1999 contained the same information as the confidential responses of 10 December 1998, with the only difference that the name of the model and of the customer had been replaced by a code number. Thus, the summaries allowed the petitioners to calculate by themselves the dumping margins by comparing the actual prices in the domestic and the export market. Clearly, this is more than enough to permit "a reasonable understanding of the substance of the information submitted in confidence" as required by Article 6.5.1 of the AD Agreement.
4.189.
In spite of that, on 22 June 1999, the DCD sent a letter to the exporters requesting them to waive the confidentiality of the product code. Within two days, the exporters agreed to that request.
4.190.
By way of justification, the letter of 22 June 1999 asserted that the disclosure of the product code was necessary so that the DCD "can make a precise comparison" ("… a fin de que la [DCD] pueda realizar una precisa comparación en su informe de determinación final del margen de dumping …"). Thus, the DCD appears to have taken the position that the investigating authority can only make a final determination of dumping based on non-confidential information. Argentina’s first written submission reflects the same position. For the reasons explained in the EC’s answers to some of the questions made by the Panel following the first meeting, that view has no basis on the Anti-Dumping Agreement and is clearly mistaken.
4.191.
By letter of 3 August 1999, the DCD requested the exporters to waive the confidentiality of the cost of production data contained in Annexes X and XI. On 10 August 1999, the exporters agreed to that request (although rather misleadingly, the exporters’ response of 10 August 1999 is omitted in Argentina’s first written submission).
4.192.
Contrary to Argentina’s contentions, the above sequence of events does not evidence lack of co-operation on the part of the exporters, but rather the opposite. Once the exporters were advised by the DCD that the non-confidential summaries submitted together with the questionnaire responses on 10 December 1998 were not considered adequate, they responded promptly to each of the successive and increasingly exacting demands made by the DCD.
4.193.
Eventually, the exporters were led by the DCD’s demands to relinquish virtually all their confidentiality requests (while it is true that the EC "never lifted the confidentiality" of the items listed therein, the degree of disclosure accepted by the EC had essentially the same result), and to disclose to their Argentinean competitors all the price and cost-of-production data for the investigation period included in their responses, a type of information which is clearly entitled to confidential treatment in accordance with Article 6.5 of the AD Agreement.
4.194.
Having answered promptly and satisfactorily to all the DCD’s requests, the exporters assumed that all the concerns of the DCD with respect to this issue had already been resolved by the time of the final determination. And, indeed, the Final Dumping Determination does not mention anywhere that the exporters’ normal value and export price information was rejected because the exporters failed to disclose confidential information or provide adequate non-confidential summaries.

(iii) Alleged failure to provide supporting documents

4.195.
Another ground invoked by Argentina for rejecting the exporters’ responses is their alleged failure to provide "supporting documents" ("documentación respaldatoria"), and more particularly to provide copies of a "sufficient" number of invoices of the sales made in the Italian market.
4.196.
Paragraph 1 of Annex II of the AD Agreement provides that the investigating authorities "should specify in detail the information required" (emphasis added by the EC). The questionnaire did not require the exporters to provide copies of a "sufficient" number of invoices for verification purposes. Therefore, Argentina cannot complain now if the exporters did not do so in their questionnaire responses.
4.197.
The only reference to invoices made in the questionnaire is found in Section B ("Exports to Argentina"), which requests the exporters to provide "probatory documents which help to better understand the transactions" ("documentación probatoria que ayude a una mejor comprensión de la operación"), including invoices. This suggests that the DCD was interested in receiving only a few examples of invoices.
4.198.
Moreover, the questionnaire requested the exporters’ consent for carrying out on-the-spot verifications, something to which all of them agreed. Thus, the exporters could assume legitimately that the DCD would verify the responses by conducting on-the-spot investigations, rather than through the unusual method of asking the exporters to supply, together with their responses, the invoices of all the reported transactions.
4.199.
Argentina argues now that one of the introductory paragraphs to the questionnaire stated that the respondents should supply "supporting documents" ("documentación respaldatoria"). But that reference is too vague to meet the requirements of paragraph 1 of Annex II. Moreover, taken literally, it would have required the exporters to provide copies not only of the invoices, but of all the accounting and cost records that are usually examined in the course of an on-the-spot verification. That demand would be clearly unreasonable.
4.200.
The AD Agreement envisages that the information provided by interested parties will be verified by means of on-the spot investigations (see Article 6.7 and Annex I of the AD Agreement). An investigating authority may chose not to conduct such investigations. But, if so, it cannot impose upon the exporters the burden of supplying all the supporting documents that might have been requested in the course of an on-the-spot verification (and, in addition, translated into the authority’s official language!).
4.201.
Furthermore, the introductory paragraph of the questionnaire cited by Argentina allows the exporters to indicate the "source of the information" ("fuente de la información") as an alternative to supplying the supporting documents. Annexes VII, VIII and IX mentioned the number and the date of the invoices from which the information reported in those Annexes was derived. Thus, the exporters’ responses would in any event have satisfied this requirement.
4.202.
At any rate, the Preliminary Dumping Determination did not mention the alleged failure to provide "supporting documents" as a reason for rejecting the responses. Rather, as mentioned before, the Preliminary Dumping Determination suggested that the responses were rejected because the non-confidential summaries were deemed inadequate.
4.203.
Nor did the letters of 30 April 1999 mention the alleged failure to provide "supporting documents", contrary to what is repeatedly asserted in Argentina’s first written submission and in its first oral statement. Those letters referred exclusively to alleged deficiencies of the non-confidential summaries.
4.204.
It was only at the meeting of 11 May 1999 that the case-handlers requested for the first time that Casalgrande and Bismantova, the two main exporters, provide copies of invoices covering an "important" volume of sales.
4.205.
In response to the request made at the meeting of 11 May 1999, the exporters concerned submitted copies of invoices covering approximately 50 per cent of the sales in Italy and of the exports to Argentina and third countries (together with a translation into Spanish of each invoice!).
4.206.
The DCD made no further request for "supporting documents" during the remainder of the investigation. The exporters, therefore, could assume legitimately that the DCD was satisfied with the documents submitted.
4.207.
The Final Dumping Determination comforts that assumption. It confirms that the exporters submitted the requested invoices. It makes no suggestion to the effect that the exporters failed to provide sufficient supporting invoices (or any other supporting evidence) or that the normal value and export price information supplied by the exporters was disregarded for that reason.

(iv) Alleged lack of representativeness of the domestic sales reported by the selected exporters

4.208.
Argentina also invokes the supposed lack of representativeness of the domestic sales reported by the selected exporters as a reason for resorting to "facts available".
4.209.
As noted by the Panel in its questions to the parties, it is unclear whether Argentina complains that the sample of exporters was not representative or, rather, that the domestic sales reported by the selected exporters were not sufficient for the purposes of establishing the normal values (the EC has not been able to establish how the percentages mentioned by Argentina at paragraphs 43 and 50 of its first written submission have been calculated).
4.210.
For the reasons already explained in its first oral statement and in the answers to the questions made by the Panel following the first meeting, the EC rejects the contention that the sample of exporters was not representative.
4.211.
Likewise, the EC rejects the allegation that the domestic sales reported by the selected exporters were insufficient. As explained in the EC’s answer to a question by the Panel, the exporters reported in Annex VIII of their responses all the domestic transactions of each of the models exported to Argentina in significant quantities (the total volume and value of the sales of all models made in Italy is reported in Annexes V and VI, respectively, of the questionnaire responses).
4.212.
The domestic sales of the other models were not reported in that Annex because that information was not required in order to make a model-to-model comparison of the normal value with the export price. Contrary to Argentina’s assertions, this approach was clearly explained in the questionnaire responses and was never contested by the DCD.
4.213.
The reported domestic transactions of each model represented more than 5 per cent of the volume of the exports sales of the same model. Moreover, taken together, the reported domestic sales represented more than 5 per cent of the overall export sales of each exporter (the Final Dumping Determination states, on page 29, that the volume of the domestic sales reported by Caesar represented 4.46 per cent of its exports to Argentina during 1998. That figure is incorrect. According to the EC’s own calculations, the correct figure is 7.35 per cent for 1998 and 10.6 per cent for the whole investigation period, which included also 1997). Therefore, the reported sales were sufficient for the purposes of establishing the normal values (see footnote 2 of the AD Agreement). They were certainly more "representative" than the seven invoices supplied by the petitioner and relied upon by the DCD.
4.214.
Furthermore, the DCD did at no point during the investigation inform the exporters that the reported domestic transactions were insufficient. It was only in the Final Dumping Determination that the DCD made for the first time some remarks in that sense. Nevertheless, even at that late stage, the DCD refrained from drawing any conclusions.
4.215.
Argentina argues that the lack of representativeness of the reported domestic transactions could be established by the DCD only at a late stage of the investigation because of the delay in providing "supporting documents". This is not true. The "supporting documents" in question (i.e. the non-confidential summaries submitted on 4 June 1999) were supplied by the exporters as soon as they were requested by the DCD. In any event, the DCD did not need those summaries in order to establish whether the sales reported in the questionnaire responses were sufficient for the purposes of establishing the normal values. Argentina makes again the error of assuming that the determination of dumping must be based on non-confidential information.
4.216.
At any rate, this alleged deficiency would concern only part of the information supplied by the exporters. Even if the domestic sales reported by the exporters had in fact been insufficient for establishing the normal values, that would not provide a valid justification for disregarding also the export price information supplied by the exporters in the questionnaire responses.

(v) Other alleged deficiencies

4.217.
Argentina also alleges in passing a series of deficiencies of the questionnaire responses. As explained below, some of those alleged deficiencies were not such, while the others were minor omissions which did not warrant the DCD’s decision to reject all the information contained in the responses.

(vi) Export sales to third countries

4.218.
Argentina alleges that Caesar and Marazzi did not provide information with respect to their export sales to third countries.
4.219.
This is true. But Argentina misleadingly omits to mention that the questionnaire allowed the exporters not to provide such information if the volume of domestic sales was sufficiently representative. Caesar and Marazzi relied expressly upon that possibility.
4.220.
At any rate, the DCD never informed Marazzi and Caesar that their responses had been rejected for this reason. The Preliminary Dumping Determination records that Marazzi and Caesar did not report export sales to third countries in Annex IX, together with the explanations given by both exporters to the effect that such information was not provided in accordance with the instructions contained in the questionnaire, but attaches no consequences to this omission. This issue was not raised again by the DCD during the investigation and is not mentioned in the Final Dumping Determination.

(vii) Cost of production data for the exported merchandise

4.221.
Argentina also alleges that Marazzi did not provide cost-of-production data for the models exported to Argentina.
4.222.
Again, this allegation is misleading. Marazzi explained in its response that the models exported to Argentina were the same as those sold in Italy and had the same cost of production, except for the differences in selling expenses.
4.223.
Moreover, the DCD never informed Marazzi that its response had been rejected for this reason. The Preliminary Dumping Determination records that Marazzi did not report cost of production data for the exported merchandise in Annex XI, together with Marazzi’s explanations, but draws no consequences from this. The issue was not raised again by the DCD during the investigation and is not mentioned in the Final Dumping Determination.

(viii) Currency conversions

4.224.
Argentina complains that Bismantova provided the information requested in Annex VI in Italian Lire instead of in US$.
4.225.
This is clearly a minor deficiency which, contrary to Argentina’s allegations, could not have impeded significantly the investigation. Annex VI is a summary table of the sales turnover by market. Bismantova reported in that Annex a total of 24 amounts. Those amounts can be easily converted into US$ by using the exchange rates provided by Bismantova or other publicly available rates.
4.226.
In any event, the DCD never informed Bismantova that it would reject the response for this reason. The Preliminary Dumping Determination mentions that Bismantova completed the tables in Annex VI in Italian Lire and provided exchange rates between that currency and the US$, but attaches no consequences to this. This issue was not raised again during the investigation and is not mentioned in the Final Dumping Determination.

(ix) Translation of accounting documents

4.227.
Finally, Argentina complains that three of the exporters did not provide a Spanish translation of their balance sheet.
4.228.
Again, this is correct but cannot justify the rejection of the responses. The requested translation cannot be considered as "necessary information" in the sense of Article 6.8, given that the essential content of the document in question were figures, that Italian and Spanish are closely related and that, in particular, the accounting terminology is very similar in both languages. Moreover Italian is widely understood in Argentina.
4.229.
It is worth noting that the DCD accepted as good the "translation" provided by Marazzi. Yet Marazzi limited itself to translate one word in the front page, namely the word "esercicio", which Marazzi rendered somewhat inaccurately as "año", the precise translation being "ejercicio". This confirms that the requested translations were by no means necessary.
4.230.
At any rate, once again, the DCD did not inform the exporters concerned that their responses had been rejected on this ground. The Preliminary Dumping Determination mentions that Bismantova, Casalgrande and Caesar did not provide a Spanish translation, but draws no consequences from this. The issue was not raised again by the DCD during the investigation and is not mentioned in the Final Dumping Determination.

(x) Paragraph 6 of Annex II

4.231.
The DCD failed to comply with the requirements imposed by paragraph 6 of Annex II. It did not inform forthwith the exporters of the rejection of their responses and it failed to give the reasons for such rejection in the Final Dumping Determination.
4.232.
Argentina contends that it complied with the requirement to inform the exporters in the letters of 30 April, 22 June and 3 August 1999. However, those letters were concerned exclusively with the alleged deficiencies of the non-confidential summaries, which were in any event remedied by the exporters well before the final determination. Those letters make no reference to any of the other grounds for rejecting the responses now invoked by Argentina.
4.233.
Argentina also failed to comply with the requirement to explain in the final determination the reasons for rejecting the evidence provided by the exporters. In its first oral statement, Argentina raises the extraordinary argument that the DCD’s decision to resort to facts available is "reflected" on page 39 of the Final Dumping Determination, where the DCD "incorporates" the allegations ("alegatos") of the petitioner. There is, however, an obvious difference between the allegations made by an interested party and the findings of the investigating authority. The mere fact that the Final Dumping Determination reproduces the allegations of the petitioner cannot be taken to mean that those allegations were upheld by the investigation authority. The Final Dumping Determination also "incorporates" the allegations made by the exporters, including the allegation that the sales were not made at dumping prices. Yet the EC would not mistake those allegations for the DCD’s findings.

(f) Arguments of the EC in its second oral statement in support of its claim under Article 6.8 of the AD Agreement

4.234.
In its second oral statement, the EC made the following arguments relating to its claim under Article 6.8 of the AD Agreement.

(i) Information on export sales

4.235.
In Annex VII of the questionnaire responses the exporters reported all the sales made to Argentina of all the models exported in significant quantities. Moreover, the exporters provided to the DCD copies of invoices covering approximately 50 per cent of those sales. Yet that information, and the supporting invoices, were totally disregarded by the DCD.
4.236.
In response to a question from the Panel, Argentina mentions, for the very first time, that the export price information supplied by the exporters was disregarded because it could not be "cross-checked" ("cruzada") with the official import statistics and the questionnaire responses of some importers.
4.237.
This "revelation" leaves us astonished. The exporters were at no point during the investigation informed of the discrepancies now alleged by Argentina. Nor are such discrepancies mentioned anywhere in the Final Dumping Determination or, indeed, in any of Argentina’s previous submissions to this Panel.
4.238.
Argentina’s explanations not only arrive too late, but are also insufficient. Argentina does not bother to specify what were the alleged discrepancies. Moreover, Argentina does not explain why the secondary sources used by the DCD were deemed more reliable than the information supplied by the exporters regarding their own sales, including the invoices.
4.239.
The EC is convinced that the alleged discrepancies could have been satisfactorily explained by the exporters, if only they had been given a chance to do so. By denying such opportunity to the exporters, the DCD acted inconsistently, once again, with paragraph 6 of Annex II and, consequently, with Article 6.8 of the Anti-Dumping Agreement.

(ii) Confidentiality

4.240.
In response to a question from the Panel, Argentina asserts that the concerns expressed by the DCD with respect to this issue in the preliminary determination had not been resolved by the time of the final determination because "the essential information in order to determine the normal value, the export price and the dumping margin continued to be confidential until the final determination (and still remains so)" ("… la información sustancial a fin de determinar el valor normal, el valor de exportación y el margen de dumping continuó siendo confidencial hasta la determinación final (y aún subsiste)".
4.241.
Argentina appears to disregard, once again, that, under Article 6.5 of the AD Agreement, interested parties have a right to request confidential treatment. Thus, the mere fact that the exporters maintained some of their confidentiality requests would not, in itself, be a sufficient justification for disregarding their responses. Rather, Argentina would have to demonstrate that all the requirements for resorting to Article 6.5.2 were met.
4.242.
Moreover, Argentina makes again the fundamental mistake of considering that the determination of dumping can be based only on non-confidential information.
4.243.
In any event, Argentina’s contentions are totally unsupported. Argentina does not say what "essential" information remained undisclosed by the time of the final determination.
4.244.
Furthermore, Argentina’s contentions are unfounded. It is undisputed that the exporters disclosed all the information on domestic prices and on export prices contained in Annexes VII and VIII, with the only exception of the customer codes. It is also undisputed that the exporters disclosed all the cost of production data reported in Annexes X and XI, except the name of the producers. Those Annexes do contain the "essential" information for calculating the dumping margin.
4.245.
Finally, if the DCD remained unsatisfied with the non-confidential summaries by the time of the final determination, why is the Final Dumping Determination silent on this issue?

(iii) Supporting documents

4.246.
The EC rejects once again Argentina’s contention that the questionnaire required the exporters to provide a "sufficient" number of invoices for verification purposes.
4.247.
The new arguments made by Argentina in its second written submission, like those made in earlier submissions, are contrived and unconvincing. The AD Agreement requires the investigating authority to specify "in detail" the information requested from the exporters (see Annex II, paragraph 1). The DCD failed to do so. It would be unreasonable to read into a vague instruction to provide the "documentación correspondiente", without any further specification, a requirement to supply copies of a "sufficient" number of invoices of the domestic sales listed in Annex VIII (whatever Argentina means now by "sufficient").
4.248.
Moreover, on Argentina’s own interpretation, the questionnaire would be internally contradictory:

(a) the section entitled Objetivos y Alcances requires to provide supporting documents or, alternatively, to cite the source of information;

(b) yet, point 1 of the Instrucciones Generales requires to provide the "documentación correspondiente", which would suggest that it is not sufficient to cite the source of information;

(c) finally, Section B (exports to Argentina), but not sections C (sales in Italy) and D (export sales to third countries), requires to provide invoices with the purpose of helping the DCD to "achieve a better understanding of the transactions" ("… que ayude a una mejor comprensión de la operación"). That request, however, would have been totally redundant if, as argued now by Argentina, the Objetivos y Alcances section and the Instrucciones Generales already required to provide copies of a "sufficient" number of invoices with verification purposes.

4.249.
The EC also rejects Argentina’s assertions that a request to provide supporting documents was made in the letters of 30 April 1999. Argentina quotes selectively from those letters.
4.250.
The letters of 30 April 1999 did not request the exporters to supply "nuevos elementos probatorios …". Rather, the letters allude to:

… la incorporación de nuevos elementos probatorios o bien la adecuación de la información obrante en las actuaciones (emphasis added by the EC).

4.251.
It is also misleading to suggest that the letters requested from the exporters "una ampliación de la información adjuntada". The relevant passage requests the exporter to evaluate:

… la posibilidad de incorporar a las actuaciones un resumen no confidencial más detallado o bien una ampliación de la información adjuntada o, en su defecto, proceda a habilitar la incorporación de dicha documentación a las actuaciones de referencia, levantando el carácter de confidencial oportunamente solicitado (emphasis added by the EC).

4.252.
The letters of 30 April 1999 reflect the DCD’s erroneous view that only non-confidential information can be used in the dumping calculation and, therefore, that the information covered by a confidentiality request cannot be "incorporada a las actuaciones". The letters do not request the exporters to supply any "supporting documents", but rather to waive their confidentiality requests with respect to information already contained in the questionnaire responses of 10 December 1998, so that such information can be "incorporada a las actuaciones". Thus, the "elementos probatorios" mentioned in the letter of 30 April 1999 were "new" only in the sense that they had not been "incorporados a las actuaciones" yet by the DCD, because they were covered by a confidentiality request.
4.253.
Furthermore, the letters of 30 April 1999 refer expressly to Article 6.5 of the LeyNo. 24,425, which is the equivalent provision of Article 6.5 of the AD Agreement, and not to the equivalent provision of Article 6.8, thus confirming that those letters are concerned exclusively with the issue of the confidentiality requests made by the exporters.
4.254.
For those reasons, the EC reiterates its position that the provision of supporting invoices with verification purposes was requested for the first time at the meeting with the case-handlers of 11 May 1999.
4.255.
In any event, the EC considers that this issue is ultimately irrelevant, since it is not disputed that the requested invoices were submitted by the exporters on 7 and 11 June 1999 and, thus, could, and indeed were used by the DCD in the final determination, albeit arbitrarily averaged with the petitioner’s information.
4.256.
Argentina contends that the invoices were not representative of the exporters’ domestic sales. However, the invoices covered approximately 50 per cent of the domestic sales reported in the questionnaire responses. Therefore, they were clearly representative of those transactions. Thus, in reality, Argentina’s argument appears to be that the transactions reported in the questionnaire responses, rather than the invoices, were not representative, which leads me to the next point of our statement.

(iv) Representativeness of domestic sales

4.257.
As already explained by the EC, the exporters reported in Annex VIII of their responses all the domestic transactions of each of the models exported to Argentina in significant quantities. The domestic sales of the other models were not reported in that Annex because that information was not required in order to make a model-to-model comparison of the normal value with the export price. This approach was clearly explained in the questionnaire responses and was never contested by the DCD in the course of the investigation.
4.258.
The domestic sales reported by the exporters in Annex VIII were certainly more "representative" than the eight invoices supplied by the petitioner and relied upon by the DCD. Moreover, of those eight invoices, four correspond to sales of polished tiles (which according to Argentina’s explanations were not used in the dumping calculation) and another to a sale of tiles of 12.5 cm x 25 cm.
4.259.
Furthermore, the DCD never informed the exporters that the domestic sales reported in the questionnaire responses were insufficiently representative. It was only in the Final Dumping Determination that the DCD made for the first time some remarks in that sense. Nevertheless, even at that late stage, the DCD refrained from drawing any conclusions.

(g) Replies of the EC to the second set of questions by the Panel relating to the EC’s claim under Article 6.8 of the AD Agreement

4.260.
The EC replied to the second set of questions by the Panel regarding the EC’s claim under Article 6.8 of the AD Agreement as follows.
4.261.
The Panel recalled that, with respect to Annexes IV-VI, the exporters provided information for which they requested confidential treatment, as well as a non-confidential summary of the information concerned. The Panel recalled further that this summary was prepared by way of indexing all the figures provided in those Annexes. The Panel asked the parties why the DCD was of the view that indexation did not permit a "reasonable understanding of the substance of the information submitted in confidence".
4.262.
The EC replied that this issue was not raised by the DCD in the Preliminary Dumping Determination, or in the letters of 22 April 1999, or indeed at any stage of the investigation. Furthermore, this issue was nowhere mentioned by the DCD in the Final Dumping Determination. It was no more than an ex-post facto justification and, as such, should be rejected by the Panel.
4.263.
The Panel recalled that, with respect to Annexes III and VII-XI of the investigation questionnaire, the exporters provided information for which they requested confidential treatment, although they did not provide a non-confidential summary of the information concerned. The Panel asked the parties whether the exporters provided a justification as to why such information was not capable of summarization (that is, a justification separate from the statement that the information in question required confidential treatment). If this was so, the Panel asked the parties to provide it with copies of the relevant evidence in the record.
4.264.
To this question, the EC gave the following reply.
4.265.
In the EC’s view, the Panel need not reach the issue of whether the information contained in Annexes VII-XI was capable of summarization.
4.266.
The EC recalls that on 4 June 1999 the exporters submitted non-confidential summaries of Annexes VII-IX in the format agreed with the case-handlers at the meeting of 11 May 1999. Those summaries contained the same information as the confidential responses of 10 December 1998, with the only difference that the name of the model and of the customer had been replaced by a code number. On 24 June 1999, the exporters agreed to a further request from the DCD to waive the confidentiality of the product code. At the request of the DCD, the exporters also agreed to waive the confidentiality of all the cost of production data contained in Annexes X and XI, on condition that the identity of the producer was kept confidential.
4.267.
Thus, contrary to what is suggested in the question, the only Annex for which the exporters did not provide a non-confidential version was Annex III (list of customers). The type of information contained in that Annex (a list of names) is clearly not capable of summarization. And, indeed, the DCD appears to agree since it did not request the exporters to disclose the customer names in the non-confidential summaries of Annexes VII and VIII submitted on 4 June 1999.
4.268.
If the exporters did provide a justification as to why the information for which confidential treatment was requested was not capable of summarization, the Panel asked whether the parties were of the view that under Article 6.5.1 of the AD Agreement investigating authorities have the right to contest such justifications. If so, the Panel asked further, did the DCD conclude, contrary to the exporters, that the information in question could in effect be summarized? If the DCD made this conclusion, could Argentina explain the DCD’s reasoning?
4.269.
The EC replied that its answer to this question was the same as its answer to the previous question.
4.270.
The Panel asked the parties to comment on the following statement in the report of the Appellate Body in Thailand – H-Beams, in which the Appellate Body addressed the question of the use of confidential information by the investigating authority as a basis for an authority’s final determination:

An anti-dumping investigation involves the commercial behaviour of firms, and, under the provisions of the Anti-Dumping Agreement, involves the collection and assessment of both confidential and non-confidential information. An injury determination conducted pursuant to the provisions of Article 3 of the Anti-Dumping Agreement must be based on the totality of that evidence. We see nothing in Article 3.1 which limits an investigating authority to base an injury determination only upon non-confidential information (Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy SteelandH-Beams from Poland,WT/DS122/AB/R, adopted 5 April 2001, at para. 107).

4.271.
The EC replied that Argentina’s position in this case reflects the erroneous assumption that only non-confidential information can be used in a dumping determination. The ruling of the Appellate Body in Thailand – H Beams confirms that such view is thoroughly mistaken.
4.272.
The Panel recalled that Exhibit EC-10 was a report of the meeting with the case-handlers on 11 May 1999 from the representatives of the exporters in Argentina to the exporters’ lawyers in Brussels. The report reflected the discussions with the case handlers, concerning the non-confidential information that needed to be provided, in the following manner:

Additionally, this information must cover an "important" part of total sales in the domestic market (you said 50 per cent – I don’t know, I guess that is largely enough), the coverage must be September 1997 – October 1998, and we have to present invoices (with confidential status) supporting this non-confidential version.

4.273.
The Panel asked Argentina whether this was an accurate reflection of what was said during that meeting and of the requests for information that were made. Further, the Panel asked Argentina whether the case-handlers at the 11 May meeting requested invoices from two exporters only (Casalgrande and Bismantova). The Panel asked the parties next whether the 50 per cent coverage mentioned in this paragraph related to the provision of non-confidential information, or to the documentation supporting the information provided. The Panel also asked the parties whether the 50 per cent related to all sales made in the home market, or only to the sales reported by the exporters.
4.274.
To this question, the EC provided the following reply.
4.275.
During the meeting of 11 May 1999, the case-handlers made two requests:

(a) first, that all the four exporters provide a non-confidential summary of the domestic and export sales reported in their questionnaire responses in accordance with the agreed format described in Exhibit EC-10; and

(b) second, that the main two exporters (Bismantova and Casalgrande) provide copies of a "sufficient" number of supporting invoices for the domestic and export transactions reported in the questionnaire responses.

4.276.
The case-handlers explained that the invoices were requested in order to verify the transactions reported in the confidential version of the questionnaire responses. According to the case-handlers, it was necessary to resort to this method of verification because the DCD could not pay verification visits to Italy. The case-handlers made no suggestion to the effect that the transactions reported in the confidential version of the questionnaire responses were insufficient.
4.277.
During the meeting, Mr. Di Gianni (of the law firm Van Bael & Bellis of Brussels), asked whether it would be sufficient to provide invoices covering 50 per cent of the sales reported in the questionnaire responses. The case-handlers agreed.
4.278.
The above is confirmed by another report sent by Mr. Di Gianni to the Italian exporters on 19 May 1999, in which it was explained that:

… we have decided … to co-operate with [the DCD] and to include in the non-confidential reply a list of sales in Italy and in Argentina. From such a list, the names of the supplier and customers should be eliminated. The other information, including the prices and quantities should be kept.

Moreover, it would be advisable to submit a copy of the invoices concerning the sales reported in the reply for the period September 1997 to September 1998. The Dumping Team would appreciate it receiving at least 50 per cent of the sales reported for that period (free translation from the Italian language by the EC).

4.279.
As a final remark, the EC would recall that Annex II, paragraph 1, provides that the investigating authority must "specify in detail" the information requested from the exporters. The fact that it has become necessary to engage into the exegesis of internal reports of the exporters in order to ascertain what "supporting documents" were actually requested by the DCD is in itself sufficient evidence that the DCD failed to comply with that requirement.

2. Argentina

(a) Arguments of Argentina in its first written submission relating to the EC’s claim under Article 6.8 of the AD Agreement

4.280.
In its first written submission, Argentina made the following arguments relating to the EC’s claim under Article 6.8 of the AD Anti-Dumping Agreement.
4.281.
Argentina first laid out the facts relevant for the presentation of its arguments.

(i) General facts

4.282.
The record of the case, File No. 061-000794/98 of the Registry of the Ministry of the Economy and Public Works and Services, incorporated by reference in Resolution 1385/99 introducing the anti-dumping measures in question, demonstrates that the claims of the EC are erroneous. The above-mentioned file explains clearly that Argentina had valid recourse to Article 6.8 of the AD Agreement.
4.283.
Argentina considers that the exporting firms significantly impeded the investigation, refused access to necessary information and did not provide it within a reasonable period. This assertion is based on the facts contained in the record of the case.
4.284.
By Note SSCE No. 945/98 of 9 October 1998, the implementing authority sent a certified copy of the Resolution initiating this investigation to the Counsellor of the European Commission in Argentina, informing him that "… under Article 6.1 of Law 24,425 (the Argentine law approving the Uruguay Round Agreements, duly notified to the WTO), all interested parties in an anti‑dumping investigation shall be given notice of the information which the authorities require and ample opportunity to submit in writing all evidence which they consider relevant …".
4.285.
The then Secretary for Industry, Trade and Mining of Argentina informed the Government of Italy, by its note of 10 November 1998, that "... the fullest transparency will be ensured at every stage of the proceedings, and pursuant to the appropriate legal provisions, all relevant technical and formal requirements will be respected …". The note went on to state that "… we repeat that the institutions involved in these proceedings are ready at any time to provide both the Government of Italy and the firms and entities concerned with technical advice regarding the various stages of the investigation and the particular features of the case".
4.286.
These notes reflect the willingness of the Argentine Government to give the exporters every opportunity to defend their interests in conformity with Articles 6.1 and 6.2 of the AD Agreement.

(ii) Lack of cooperation from the exporters in the light of Article 6.8 of the AD Agreement

4.287.
Despite having been invited to an information meeting, the exporters did not attend. Argentina draws the Panel’s attention to the note dated 28 October 1998, sent by Assopiastrelle to the DCD (File No. 061-009413 – folio 1), which states "… we regret to inform you that, owing to the distance and our business commitments, it will be impossible for us to attend …".
4.288.
The information meeting was held on 30 October 1998. DCD officials answered all the participants’ questions in order to dispel their doubts regarding the procedures and the required information, and supplied them with the questionnaires. The record of that hearing, which lists the participating entities and shows that the exporting companies and/or their representatives were absent, has been attached to the record. Because the exporters were present at that meeting, the Italian Embassy agreed to send them the questionnaires.
4.289.
It should be pointed out that the explanatory section of each questionnaire sets out the general and specific instructions for each of the required items, so that the parties could respond properly, in such a way as to enable the implementing authority to use the data supplied by the exporters and importers at the time of the preliminary and definitive determination.
4.290.
In addition, the instructions emphasize that "producers and/or exporters from the respondent country must answer this questionnaire with the greatest possible precision, attaching documentation to support its replies, or, if this is impossible, indicating the source of the information". In other words, in no case was it sufficient to state, for example, for determining the normal value, that a certain number of sales had been made, without backing up that information with a sufficient number of sales invoices for the domestic market. The sample evidence in support of the replies needed to be sufficiently extensive to allow a precise evaluation of the information submitted. Argentina submits that the attached replies did not fulfill the time, quality and quantity requirements that would have enabled the DCD to use them as a basis for reaching a determination. Nevertheless, the DCD took the trouble to consider the information supplied on the basis of the standard of review of the AD Agreement. That standard recognizes the principle of deference to the implementing authority, in the context of anti-dumping investigations, as regards the analysis of the facts and definition of the scope of the obligations of the Agreement (Article 17.6 of the AD Agreement).
4.291.
The period originally granted for the submission of the forms and replies to the questionnaires expired on 30 November 1998. In response to the requests for extension sent by the foreign exporting firms and national importers concerned, and in conformity with Article 6.1.1 of the AD Agreement, the DCD granted an additional non-extendable period for all submissions, expiring on 9 December 1998, so that the participating firms could duly complete their respective questionnaires, including sufficient supporting documentation, and appropriate evidence (Notes DCD Nos. 273-000414/98, 273-000429/98 and 273-000430/98 of 19 and 27 November 1998 stated that, in view of the request for an additional period for submission of the questionnaire for foreign producers/exporters, duly completed and with the necessary supporting documentation, "… it has been decided to grant the extension, setting 9 December 1998 as the final deadline for submission …").

(iii) Qualitative, quantitative and time-related deficiencies in the information submitted

4.292.
Article 6.8 of the AD Agreement states as follows:

In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determinations, affirmative or negative, may be made on the basis of the facts available. The provisions of Annex II shall be observed in the application of this paragraph (emphasis added by Argentina).

4.293.
As regards the information supplied in the replies to the questionnaires for producers/exporters, this submission will only highlight the points in which Argentina considers that the producing/exporting companies impeded the investigation, by failing to comply with required formalities in the general and specific instructions of the questionnaires, by not providing the necessary information within a reasonable period, even when granted repeated extensions, by not supplying, with the questionnaires, sufficient supporting documentation (requested for verification purposes), by not providing enough information in the confidential summaries, by not providing any summary in certain cases, and also by the delay and reluctance they displayed in removing the confidentiality of the information supplied, a step which was absolutely necessary to enable the DCD to take account of that information and make it public as an element considered in its decisions.

Replies to the questionnaires

4.294.
The four exporting companies making up the sample submitted the following documentation through their representatives on 10 December 1998:

(a) Completed questionnaire for producers/exporters.

(b) Report on procedural deficiencies.

(c) Report on the methodology for selection of the sample.

4.295.
The extension granted by the DCD for submitting the forms and replies expired on 9 December 1998. The companies concerned were late in submitting the information, there were a number of formal breaches, and the summaries of the information were insufficient to permit the use of the data supplied, or in some cases were missing altogether.
4.296.
As regards the accounting statements submitted by the sample companies, it is important to point out that they were not accompanied by any Spanish translation (except in the case of Marazzi), as required by the general instructions (item 2 of the questionnaire) which refer to the Law on Administrative Procedures No. 19,549, Regulatory Decree No. 1759/72, as harmonized in 1991 by Decree No. 1883/91.
4.297.
In this regard the DCD stated, by Notes DCD Nos. 273-000404/99, 273-000405/99, 273-000406/99 and 273-000407/99 of 30 April 1999 to Bismantova, Casalgrande, Caesar and Marazzi (Section 25 of File No. 061-000794/98), that "it is of the utmost importance that all the information and/or documentation presented should be in Spanish or translated into Spanish by a certified translator (Articles 15 and 28, in accordance with the Law on Administrative Procedures No. 19,549, Regulatory Decree No. 1759/72, as harmonized in 1991 by Decree No. 1883/91) in order to be considered in the present proceedings".
4.298.
In the case of information requested by the DCD and submitted by the four representative companies in Annex III – List of importers in Argentina and third countries of the goods under investigation, Annex IV – Information on the producer/exporter market, Annex V – Summary of producer/exporter sales (physical volume) and Annex VI – Summary of producer/exporter sales (estimated volume), the information was presented as confidential, and for reasons of competition, a non-confidential summary was supplied.
4.299.
With respect to the said documentation and given the importance of the information supplied, classified as confidential, Argentina considers that the lack of non-confidential summaries "in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence" (Article 6.5.1 of the AD Agreement) shows a failure to cooperate in clarifying during the investigation whether there was dumping or not.
4.300.
The fact that the DCD considered that the summaries were not sufficiently detailed to permit a reasonable understanding of the substance of the information, in particular, the information corresponding to Annexes V and VI without whose supporting documentation it could not validly be considered for the purposes of reaching a determination of the normal value, is apparent from the repeated requests to provide further supporting documentary evidence and to remove the confidentiality or provide sufficiently detailed non-confidential summaries, as can be seen from the DCD Notes to the four exporting companies concerned on 30 April 1999, 22 June 1999 and 3 August 1999.
4.301.
In the particular case of the information presented in Annex VI by Bismantova, the latter supplied the information in Italian lire, adding a note with the exchange rates for the years 1995, 1996 and 1997 and January-October 1998. Here it should be emphasized that point 6 of the specific instructions to the questionnaire clearly states that the table in Annex VI must be in US$. Providing this information in Italian lire shows a lack of cooperation and an effort to impede the investigation, as well as a failure to comply with a formal requirement of the procedure established in respect of the implementing authority.
4.302.
Similarly, Bismantova stated that Rondine S.p.A. was its controlling company, holding a 60 per cent share, and that these companies were separate legal entities, with independent accounting records.
4.303.
The DCD was thus obliged to handle this information separately in reaching the final determination, in view of the high percentage of unpolished porcellanato sales on the Italian domestic market between related companies. It was therefore necessary for the DCD to separate sales made to the controlling company, Rondine, from those made to the remaining customers on the said market. In particular, folios 27 and 28 of the Final Dumping Determination state that:

In the specific case of the manufacturing export company Ceramica Bismantova S.p.A., it should be stated that the sample documentation supplied with respect to its sales on the Italian market showed a high percentage of transactions involving the sale of unpolished porcellanato in that market between related companies. Thus, approximately 50 per cent of the documentation submitted by the said company involved sales to its controlling company, Rondine S.p.A., from which it in fact buys its inputs for the production of porcellanato. The reply to the questionnaire for exporters originally submitted (Company Structure – File No. 061-10307/98 of 10 December 1998, included in Section XXI, folio 881, sheet 10) reveals that Rondine S.p.A. has a 60 per cent share in Ceramica Bismantova S.p.A.

In accordance with the procedures set forth above, the Directorate of Unfair Competition divided the documentation submitted by Ceramica Bismantova S.p.A. in respect of domestic market sales into those made to its controlling company, Rondine S.p.A., and those made to the remaining customers on the said market, designated as ‘other customers’.

This procedure revealed that taking the total samples submitted to the Directorate, the share of ‘other customers’ in the sales of unpolished 20 cm x 20 cm porcellanato was 71 per cent, while Rondine S.p.A.’s share was 29 per cent. In the case of 30 cm x 30 cm tiles, the respective shares were 39 per cent and 61 per cent, while in the case of 40 cm x 40 cm tiles, the shares were 7 per cent for ‘other customers’ and 93 per cent for the controlling company Rondine S.p.A.

Moreover, in the specific case of prices relating to transactions with ‘other customers’, there were price differences of some 13.69 per cent for 20 cm x 20 cm porcellanato tiles, 26.87 per cent for 30 cm x 30 cm tiles and 30.08 per cent in the 40 cm x 40 cm segment. These differences were not justified by the exporting company.

4.304.
As regards Annex VII – Actual exports to Argentina, Annex VIII – Sales in the Italian domestic market, Annex IX – Exports to third countries, Annex X – Cost structure of the goods under investigation in the Italian domestic market and Annex XI – Cost structure of the exported goods, the companies supplied the data as confidential information, attaching a brief note regarding its confidential status and citing reasons of competition as justification.
4.305.
As reflected in File No. 061-000794/98 incorporated by reference in Resolution 1385/99, the DCD considered that, in the case of the information contained in the above-mentioned Annexes, the grounds given for confidentiality were somewhat thin. Nevertheless, the implementing authority was quite willing to accept the confidentiality, even where the companies had not so much as provided a sufficiently detailed non-confidential summary to permit a reasonable understanding of the substance of the information submitted in confidence, or offered any justification as to why this was not done, ignoring the provisions of Article 6.5.1 of the AD Agreement.
4.306.
Notwithstanding the above, the DCD repeatedly requested further supporting documentation, removal of the confidentiality or at least the submission of sufficiently detailed summaries (Notes of 30 April 1999, 22 June 1999 and 3 August 1999). On the one hand, this shows the willingness of the implementing authority to use all the information supplied and, on the other hand, the importance attached to such information, even though the latter proved to be insufficient as supporting documentation.
4.307.
In particular, it should be emphasized that Caesar and Marazzi did not submit any information on exports to third countries (Annex IX), nor did the latter submit any information referring to the cost structure of the exported goods (Annex XI). In Argentina’s view, this failure to submit information constitutes at the very least an impediment to the investigation, if not a refusal to provide access to information that is essential in itself.
4.308.
Finally, it should be emphasized that, during the evidence-gathering period, none of the exporters offered any evidence, but merely replied to the questionnaire without furnishing sufficient supporting documentation.

Requests to elaborate on the insufficient supporting documentation, to remove the confidentiality or, where appropriate, to provide sufficiently detailed non-confidential summaries

4.309.
In its preliminary determination, the DCD stated that the fact that the foreign companies had asked most of the information they supplied to be declared confidential implied differential and restricted treatment in processing that information. The final determination shows that the implementing authority was restricted in its handling of the information, and therefore requested a review of the status of that documentation and the incorporation in the proceedings – during the next stage – of evidence of interest that would enable the Technical Department to present, in its conclusions, the technical and documentary evidence on which they were based from all the firms involved.
4.310.
Here it is appropriate to cite Notes DCD Nos. 273-000404/99, 273-000405/99, 273‑000406/99 and 273-000407/99 of 30 April 1999 to Bismantova, Casalgrande, Caesar and Marazzi (section 25 of File No. 061‑000794/98). In these Notes, the DCD states that it undertook a comprehensive and detailed analysis of all the information submitted by the firms and requested their cooperation in incorporating already requested evidence or adapting information in the record of the proceedings in order to ensure that the DCD had the information it needed to reach a public conclusion with respect to the matter at issue. In this regard it states that, although it is conceivable that for reasons of competition certain items of business information supplied by the companies may have to be safeguarded (hence the requested confidentiality that was accepted by the implementing authority), for the purposes of reaching objective and meaningful conclusions, the DCD had to have information that enabled it to do so. Consequently, it requested that the possibility should be considered of including in the record of the case a more detailed non-confidential summary or of elaborating on the information supplied or, failing this, of allowing the said documentation to be incorporated in the record, removing its confidentiality. This would give the parties concerned and their representatives access to the information in question, remembering that only duly accredited parties would be allowed to consult the information, for the purposes of issuing an opinion.
4.311.
The Notes go on to list the documents of particular interest for full incorporation in the record as follows:

- List of importers in Argentina and third countries of the goods under investigation – Annex III;

- Actual exports to Argentina – Annex VII;

- Sales in the Italian domestic market – Annex VIII;

- Exports to third countries – Annex IX;

- Cost structure of the goods under investigation in the Italian domestic market – Annex X;

- Cost structure of the exported goods – Annex XI.

4.312.
By File No. 061-004097/99 of 14 May 1999, included as folio 1315 in the record of the case, and in response to DCD’s requests in the Notes mentioned above, the representatives of the Italian firms requested an extension of the time-limit for the submission of the required information. In Note DCD No. 273-000617/99 of 19 May 1999, the DCD states that "… the implementing authority has decided to grant an extension up to 7 June 1999".
4.313.
By File No. 061-004809/99 of 4 June 1999, the representative of Assopiastrelle, Bismantova, Casalgrande, Marazzi and Cesar wrote to the DCD listing the information submitted and stating that, for each of the Annexes corresponding to each of the exporting firms included in the sample, there was a corresponding confidential Annex containing "conversion tables" so that the implementing authority could analyse the information. In other words, information was submitted from the four Italian firms of both a public and a confidential nature, separated into different Annexes.
4.314.
By File No. 061-004860/99 of 7 June 1999, the representatives of Bismantova further submitted, as confidential information, Annex IC bis containing copies of sales invoices relating to the Italian domestic market.
4.315.
On expiry of the extension on 10 June 1999, by File No. 061-005002/99 of 10 June 1999, the representatives of the Italian exporting firm Casalgrande further submitted, as confidential information, Annex IIC bis containing copies of sales invoices relating to the Italian domestic market.
4.316.
Once again the Italian firms alleged that the confidentiality of all this information was based on strict reasons of competition. Once again, without responding to the DCD’s concerns regarding the lack of supporting documentation, when they added a further sample thereof to the record, they asked for it to be treated as confidential information without providing non-confidential summaries "in sufficient detail to permit a reasonable understanding of the substance of the information submitted …" (Article 6.5.1 of the AD Agreement).
4.317.
Consequently, by means of Note No. 273-000768/99 of 22 June 1999, the DCD had to repeat the need for further supporting documentation, since what it had was insufficient:

… The DCD repeats the statement made on other occasions concerning the need for information that would enable the implementing authority to reach public conclusions in its technical reports. To that end, and to enable the DCD to make a precise comparison in its report on the final determination of the margin of dumping, the companies Ceramica Bismantova S.p.A., Ceramica Casalgrande Padana S.p.A., Marazzi Ceramiche S.p.A. and Ceramiche Caesar S.p.A are therefore asked to remove the confidentiality requirement for the information concerning the product code so that the said information can be incorporated in the record of the proceedings, or to submit a sufficiently detailed non-confidential summary of the information. This requirement must be met within five days after the receipt of this note …

4.318.
As stated during the proceeding in question, the submission of information and documentation for which confidential treatment is requested constitutes a limiting factor with respect to the analysis and public conclusions of the implementing authority.
4.319.
Hence, the DCD sought, during the investigation, to obtain elements that were not subject to that condition so that it could make proper estimates with respect to the product under investigation. The removal of the confidentiality of the product code would enable the goods to be categorized according to their dimensions. In other words, without the product code it was very difficult to make out which product the information submitted applied to.
4.320.
By File No. 061-005427/99 of 24 June 1999, the Italian firms, through their representatives, stated that they would remove the confidentiality of the product code item.
4.321.
Moreover, by Note DCD No. 273-000890/99 of 3 August 1999, the DCD informed the representative of Assopiastrelle, Bismantova, Casalgrande, Marazzi and Caesar that "… the implementing authority is currently engaged, at this final stage of the investigation, in the analysis of all the information in the record of the case in order to arrive at a final determination in these proceedings. To do so, it must take into account all the information in these proceedings, and considers that it is important to ask you to remove the confidentiality of the information concerning production costs of the product at issue, or to prepare a non-confidential summary that would enable the information to be processed. Given the time-limit for the final determination, we would be grateful if this request could be met within five days following the receipt of this communication …".

Particular quantitative aspects of the sample

4.322.
It is important to emphasize that the sample documentation relating to sales on the Italian domestic market supplied by all of the manufacturing export companies concerned in the case – major representatives of the porcellanato production market – in conformity with the supplied sample methodology, covers no more than approximately 1.92 per cent of the physical volume (m2) and 1.35 per cent of the total estimated value (Italian lire) of sales in the domestic market according to the information duly supplied.
4.323.
Argentina would like to stress that the DCD accepted without reservation the sample methodology presented by Assopiastrelle (i.e. the four exporting companies Bismantova, Marazzi, Caesar and Casalgrande) because the association itself said that this would facilitate the work of the investigators. As is apparent from the record of the case, the alleged facilitation of the work did not materialize in practice in view of the lack of sufficiently detailed non-confidential summaries, the absence of such summaries in cases where the information was absolutely necessary, the delay in removing the confidentiality and the limited supply of supporting documentation.
4.324.
The Italian companies concerned had to be requested by the DCD to expand on the inadequate supporting documentation (Notes of 30 April, 22 June and 3 August 1999), and even after it had been supplied, it continued to be meaningless for the purposes of an objective valuation.
4.325.
Finally, the implementing authority pointed out the shortcomings in the accompanying documentation, as well as the impact of those shortcomings on the investigation. The statements by the DCD in the Notes mentioned above correspond exactly, in the authority’s view, to the situation described in Article 6.8 of the AD Agreement. That is to say, this is a situation where the investigation was significantly impeded since the DCD was obliged to continue requesting additional evidence, what it had being insufficient. As a result of the repeated requests for supporting documentary evidence, the DCD was obliged to grant repeated extensions to facilitate the pursuit of the investigation, which was impeded by the attitude of the exporters. The combination of these elements placed the authority in a situation in which it did not have the necessary information because the exporting firms were refusing access to that information.
4.326.
Argentina presented then its legal arguments concerning the EC’s claim under Article 6.8 of the AD Agreement.
4.327.
The EC asserts, in paragraph 48 of its first written submission, that none of the three circumstances required by Article 6.8 to make a determination on the basis of the facts available was present in this case.

(iv) Significant impeding of the investigation

4.328.
Argentina submits that the exporters did significantly impede the investigation in that they failed to carry out the formalities required in the general and specific instructions accompanying the questionnaires. Nor did they provide sufficient supporting documentation with the information supplied, and the DCD had to request further evidence. Finally, the scant information provided in the confidential summaries also represented a significant impediment to the investigation, particularly as regards information needed to determine the normal value and the export value, where no direct summary was provided at all.

(v) Refusal of access to necessary information

4.329.
At the same time, the fact that the DCD accepted, without reservations, the "sample methodology" proposed by Assopiastrelle because the association itself said that this would facilitate the work of the investigators shows that the implementing authority was favourably disposed to consider such information as that party might submit.
4.330.
Having accepted this sample methodology, the DCD discovered, upon examining the supporting documentation, supplied belatedly at the specific request of the authority, that it only covered approximately 1.92 per cent of the physical volume (m2) and 1.35 per cent of the total estimated value (Italian lire) of domestic market sales, based on the information previously received.
4.331.
Much of the information supplied by the companies was confidential. This information included data concerning total volumes and amounts of sales in the Italian domestic market by the participating firms. The firms also subsequently provided information concerning some of their sales transactions which enabled the implementing authority to establish average values in accordance with the above-mentioned method. However, it was felt that certain considerations should be highlighted with respect to the supporting sample. Its representativeness was mentioned as a factor to be taken into account, given that the percentages were fairly insignificant in comparison to the total for the period analysed.
4.332.
This falls within the scope of Article 6.8 of the AD Agreement as significantly impeding the investigation by refusing access to necessary information.

(vi) Failure to provide the information within a reasonable period

4.333.
With respect to the requirement to provide necessary information within a reasonable period, Argentina submits that the repeated requests for extensions together with the delay in removing the confidentiality of the information and the unwillingness to do so even though absolutely necessary for the DCD to be able to take it into account, in fact reflect the situation described in Article 6.8 in which the party does not provide necessary information within a reasonable period.
4.334.
It should therefore be stressed that the two situations described above (significant impeding of the investigation and refusal of access) in themselves reflect the circumstances described in Article 6.8 justifying a determination by the authority on the basis of the facts available as the only possible alternative.
4.335.
In the light of the above considerations, the implementing authority could only base its determination on the facts available, and was indeed forced to do so, since it could not, on the basis of a sample as unrepresentative as the one provided, make a correct determination of the normal value.

(vii) Rebuttal of the EC’s supplementary arguments concerning Article 6.8 of the AD Agreement

4.336.
The Notes of 30 April, 22 June and 30 August 1999 provide confirmation that exporters were informed of the insufficiency of the information, and rebut the assertion in paragraph 54 of the first written submission of the EC that the Argentine interpretation of Article 6.8 renders paragraph 1 of Annex II null and void, since in this case the exporters did not submit all of the information within a reasonable period, nor was the information submitted of the kind required by the authorities to enable them to make a determination on the basis thereof.
4.337.
With respect to the information contained in the record, the EC has taken the alleged Argentine terms "considered on an equal footing" – used in the informal context of consultations – out of their context, claiming that according to Argentina, Article 6.8 enables the investigating authorities to "pick and choose" from the data submitted. Argentina had all of the information before it and duly examined it, following the sequence set forth in Article 6.8, but found that it had to opt for a determination on the basis of the facts available because the information from the exporters turned out to be insufficient, as explained above.
4.338.
At the same time, while the authority accepted the sample put forward by the exporters, it asked that the confidentiality of the supporting information be removed and granted a series of extensions to the importers, even accepting late answers to the questionnaires (10 December 1998). How can the EC contend that Argentina has deviated from paragraph 7 of Annex II and that it has relied on a secondary source of information without the special circumspection required by that paragraph?
4.339.
The DCD was so meticulous that when forced to resort to secondary information, although aware that the supporting documentation for the determination of the normal value was insufficient, it nevertheless took account of that information and averaged the figures out in order to reduce the margin of dumping. This is ultimately what Table 4 in the first written submission of the EC.
4.340.
Thus, contrary to the EC’s assertion, Argentina followed the sequence of Article 6.8 of the AD Agreement and finding that the circumstances described therein had been met, resorted to a secondary source which provided more extensive information within a reasonable period.
4.341.
Argentina addressed next the EC’s claim under Paragraph 6 of Annex II of the AD Agreement.
4.342.
Argentina first laid out the facts relevant for the presentation of its arguments.
4.343.
With respect to the EC’s claim in paragraph 49 of its first written submission that the DCD at no point during the investigation suggested that the exporters failed to provide necessary information, Argentina refers the Panel to the Notes DCD Nos. 273-000404/99, 273-000405/99, 273-000406/99 and 273-000407/99 of 30 April 1999 to Bismantova, Casalgrande, Caesar and Marazzi (Section 25 of File No. 061-000794/98), in which the DCD requests the cooperation of the said enterprises in supplying new evidence or adapting the information pertaining to the proceedings so that the implementing authority would have the information it needed to reach a public conclusion with respect to the matter at issue.
4.344.
In this connection, the DCD points out that while it is possible that for reasons of competition, certain items of business information supplied by companies must be safeguarded (hence the requested confidentiality that was accepted by the implementing authority), for the purposes of reaching objective and meaningful conclusions the DCD must have information that enables it to do so. This is why it requested the companies to consider the possibility of including in the record of the case a more detailed non-confidential summary or of elaborating on the information supplied or, failing this, to allow the said documentation to be incorporated in the record, removing its confidentiality. This would expressly give the parties concerned and their representatives access to the information in question, remembering that only the duly accredited parties would be allowed to consult the information, for the purposes of issuing an opinion.
4.345.
Consequently, by Note No. 273-00768/99 of 22 June 1999, the DCD had to repeat the need for further supporting documentation, since what it had was insufficient:

… The Directorate of Unfair Competition repeats the statement made on other occasions concerning the need for information that would enable the implementing authority to reach public conclusions in its technical reports. To that end, and to enable the Directorate of Unfair Competition to make a precise comparison in its report on the final determination of the margin of dumping, the companies Ceramica Bismantova SpA., Ceramica Casalgrande Padana SpA., Marazzi Ceramiche SpA., and Ceramiche Caesar SpA., are therefore asked to remove the confidentiality requirement for the information concerning the Product Code so that the said information can be incorporated in the record of the proceedings, or to submit a sufficiently detailed non-confidential summary of the information. This requirement must be met within five days after the receipt of this note ….

4.346.
Moreover, by Note DCD No. 273-000890/99 of 3 August 1999, the DCD informed the representative of Assopiastrelle, Bismantova, Casalgrande, Marazzi, and Caesar, that "… the implementing authority is currently engaged, at this final stage of the investigation, in the analysis of all of the information in the record of the case in order to arrive at a final determination in these proceedings. To do so, it must take account of all of the information in these proceedings, and considers that it is important to ask you to remove the confidentiality of the information concerning production costs of the product at issue, or to prepare a non-confidential summary that would enable the information to be processed. Given the time-limit for the final determination, we would be grateful if this request could be met within five days following the receipt of this note …".
4.347.
Argentina presented next its legal arguments concerning the EC’s claim under Paragraph 6 of Annex II of the AD Agreement.
4.348.
The EC’s argument in paragraph 49 of its first written submission that the implementing authority "did at no point during the investigation suggest that the exporters failed to provide necessary information" is unfounded in view of the above-mentioned Notes. Moreover, it is clear that the reason why the DCD requested – through these Notes – further information from the exporters, was that the information supplied by them was not sufficient.
4.349.
In any case, even if it were to be assumed that Argentina had violated paragraph 6 of Annex II, this would be a harmless error (an error committed in the progress of the trial "…, but which was not prejudicial to the rights of the party assigning it, and for which, therefore, the court will not reverse the judgment …"; see Blacks Law Dictionary,Revised Fourth Edition, West Publishing Company, 1968, p. 638) that did not cause any injury, since its effect would be formal and procedural; in other words, what the EC would be demanding is a separate notification with a special format setting out the conclusion that the DCD had reached. As concluded in the previous paragraph, that conclusion was in fact implicit in the mentioned Notes (see Annexes ARG-7, 10 and 11) and would in no way have signified a change of position on the part of the implementing authority.

(b) Arguments of Argentina in its first oral statement relating to the EC’s claim under Article 6.8 of the AD Agreement

4.350.
In its first oral statement, Argentina made the following arguments relating to the EC’s claim under Article 6.8 of the AD Agreement.

(i) Treatment of the information in the record

4.351.
Argentina submits that it had valid recourse to Article 6.8 of the AD Agreement, as shown by the record of the case (File No. 061-000794/98 of the Registry of the Ministry of the Economy and Public Works and Services, incorporated by reference in Resolution No. 1385/99 introducing the anti-dumping measures in question). The above-mentioned file explains clearly that the exporting firms significantly impeded the investigation, refused access to necessary information or did not provide that information within a reasonable period.
4.352.
Consequently, Argentina was fully justified in resorting to the information available.
4.353.
Argentina considers that the producing/exporting firms significantly impeded the investigation for the following reasons:

(a) They failed to provide information, or they did so without sufficient supporting documentation;

(b) they did not provide the necessary information within a reasonable period, even when granted repeated extensions;

(c) ©©they were late and displayed reluctance in removing the confidentiality of the information that was absolutely necessary so that the DCD could take it into account and make it public;

(d) they provided little information in the non-confidential summaries;

(e) in some cases they did not provide any non-confidential summary at all;

(f) they failed to comply with some of the required formalities in the general and specific instructions of the questionnaires.

Lack of information or information without sufficient supporting documentation

4.354.
Firstly, the information requested from the exporters in the questionnaires was the information that the implementing authority considered absolutely necessary to reach a reasoned and public conclusion. Moreover, it was not enough simply to reply to the questionnaires: the replies needed to be backed by sufficient supporting documentation.
4.355.
To allow a precise evaluation of the information submitted, the documentation in support of the replies needed to be sufficiently extensive. Indeed, the general and specific instructions accompanying the questionnaires emphasize that "producers and/or exporters from the respondent country must answer this questionnaire with the greatest possible precision, attaching documentation to support their replies, or if this is impossible, indicating the source of the information".
4.356.
This is reflected in the repeated Notes sent by the DCD to the exporters requesting more extensive information, since what they had provided was not sufficient to make a correct determination of the normal value, the export value and the margin of dumping (see DCD Notes of 30 April, 22 June and 3 August 1999. The last of these Notes is the one in which the DCD merely requested that the confidentiality of the information be removed).
4.357.
Moreover, some exporting firms failed to provide any information at all for certain Annexes to the questionnaires. In particular, Caesar and Ceramiche failed to provide any information concerning exports to third countries (Annex IX), and the latter failed to provide any information concerning the cost structure of the exported goods (Annex XI).
4.358.
Nor did Caesar and Marazzi supply any information or supporting documentation concerning sizes 20 cm x 20 cm and 30 cm x 30 cm. The latter, did not even provide any information or supporting documentation concerning size 40 cm x 40 cm. Therefore, one of the four sample enterprises failed to provide any information on any of the size categories established by DCD for the product, although this segmentation was accepted by the firms even before Assopiastrelle presented the sampling methodology and the questionnaires were answered.
4.359.
In the view of Argentina, this failure to supply information at the very least constitutes an impediment to the investigation, if not a refusal to provide access to information that is essential in itself.

Information within a reasonable period

4.360.
Further evidence that the investigation was impeded can be found in the failure by the exporters to supply the requested information within a reasonable period, in spite of the fact that the implementing authority responded favourably to their repeated requests for extensions.
4.361.
The exporters were originally given until 30 November 1998 to reply to the questionnaires, and in response to the requests for extension, it was decided to "grant the extension, setting 9 December 1998 as the final deadline for submission". This does not mean that Argentina submits that the submission of the information by the exporting firms on 10 December was considered a procedural error, but whatever the case, Argentina emphasizes the goodwill shown by the implementing authority in considering the information despite the fact that it was late.
4.362.
In any case, Argentina considers the argument made by Japan in its third party submission that a delay of one day should have led the authority to conclude that the information had nevertheless been submitted within a reasonable period to be wrong. Technically, the reasonable period is established by the authority in conformity with its anti-dumping laws and regulations (Article 1 of the AD Agreement). Consequently, it is those laws and regulations which govern the matter at issue. In other words, while the implementing authority was willing to grant extensions for the purposes of gathering the information supplied by the exporters, the limit to that willingness was determined by the statutory deadlines provided for in the AD Agreement (Article 5.10) and Decree 2121/94.
4.363.
In the end, the period actually used by the exporters for completing the requirements of the questionnaire ran from 30 November 1998 to 10 August 1999. Indeed, the DCD, in its Note of 30 April 1999, granted 15 days to definitively fulfil the requirements of the questionnaire in view of the shortcomings it had already noted in the replies. Similarly, in its Note of 22 June 1999, the DCD granted a new extension of five days, and finally, in its Note of 3 August, granted another five-day extension. Argentina considers that these successive extensions of the period for submitting the necessary information reflect, in fact, a lack of cooperation by the exporters that is contrary to Article 6.8 of the Agreement.
4.364.
It is questionable whether a period running from 30 November 1998 to 10 August 1999 is in fact "reasonable" for the purposes of Article 6.8.

Delay and reluctance in removing the confidentiality of the information; lack of information in the non-confidential summaries; and absence of summaries in certain cases

4.365.
The exporting firms were effectively impeding the investigation by completing the required information only at the request of the implementing authority. The authority considered the information to be insufficient without non-confidential summaries or sufficiently detailed summaries, and considered the removal of the confidentiality to be essential. This was finally done on 10 August 1999, that is eight months after the period accorded.
4.366.
Argentina recalls in this connection that the DCD repeatedly requested further information, stressing that what had been received was insufficient. Argentina cites, for example, Notes DCD Nos. 273-000404/99, 273-000405/99, 273-000406/99 and 273-000407/99 of 30 April 1999 to Bismantova, Casalgrande, Caesar and Marazzi (Section 25 of File No. 061-000794/98), in which the DCD requested the cooperation of these firms in incorporating already requested evidence or adapting information in the record of the proceedings in order to ensure that the DCD had the information it needed to reach a public conclusion with respect to the matter at issue, granting them a period of 15 days for the purpose.
4.367.
In these Notes, the DCD points out that for the purposes of reaching objective and meaningful conclusions, it had to have the information that enabled it to do so. Consequently, to ensure that the parties concerned and their representatives had access to the information in question, it requested that the possibility should be considered of including in the record of the case a more detailed non-confidential summary or of elaborating on the information supplied, or, failing this, of allowing the said documentation to be incorporated in the record, removing its confidentiality.
4.368.
Exhibit ARG-19 contains a complete list of the confidential information submitted by each one of the firms with respect to each one of the Annexes, and identifies the information that was accompanied by non-confidential but incomplete summaries. The non-confidential summaries provided by the four sample firms with respect to Annexes III, VII, VIII, IX, X and XI, provided to the Panel in Exhibit ARG-20, are completely irrelevant in that they lack substance and hence could not be used by the implementing authority. Thus, the EC’s comment to the effect that Argentina’s allegation concerning the inadequacy of the non-confidential summaries is ironic seems out of place.
4.369.
The exporters were aware that, as indicated in the general instructions for completing the questionnaire (point 5), " … ‘confidential’ information that is not accompanied by a summary or an explanation of why it is impossible to provide such a summary will not be considered as such". Argentina asks the Panel to make an objective evaluation of whether the summaries provided in Exhibit ARG-20 are "in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence" (Article 6.5.1 of the AD Agreement).
4.370.
Moreover, the DCD had to repeat its request for further supporting documentation, since what it had was insufficient (see paragraphs 38 and 42 of Argentina’s first written submission).

Failure to comply with the required formalities in the general and specific instructions of the questionnaires

4.371.
Yet another example of the investigation being impeded within the meaning of Article 6.8 of the AD Agreement is, in our view, the fact that the accounting statements submitted by the sample companies were not accompanied by any Spanish translation (except in the case of Marazzi) as required by the general instructions (item 2 of the questionnaire) which refer to the Law on Administrative Procedures No. 19,549, Regulatory Decree No. 1759/72, as harmonized in 1991 by Decree No. 1883/91. In this regard, Argentina recalls that Exhibit ARG-7 cites the DCD Notes of 30 April 1998 in which the DCD states that "it is of the utmost importance that all the information and/or documentation presented should be in Spanish or translated into Spanish by a certified translator (Articles 15 and 28, in accordance with the Law on Administrative Procedures No. 19,549, Regulatory Decree No. 1759/72, as harmonized in 1991 by Decree No. 1883/91) in order to be considered in the present proceedings".
4.372.
Likewise, point 6 of the specific instructions to the questionnaire clearly states that the table in Annex VI (Summary of producer-exporter sales – physical volume) must be in US$. And yet, in the particular case of Bismantova, the information relating to Annex VI was provided in Italian lire, accompanied by a note with the exchange rates for 1995, 1996, 1997 and January-October 1998. Argentina considers that providing this information in Italian lire shows a lack of cooperation and an effort to impede the investigation, as well as a failure to comply with a formal procedural requirement. Moreover, in view of the EC’s comments concerning the legal value of other Argentine legislative provisions (paragraph 12 of its first oral statement), Argentina does not understand why it describes this requirement as ridiculous (paragraph 59).

(ii) Treatment of the information as reflected in the final determination

Impeding of the investigation and refusal of access to the necessary information
4.373.
The impeding of the investigation and the refusal of access to the necessary information is also reflected in the final determination, folio 29, which states that: "The sample documentation relating to sales on the Italian domestic market supplied by all of the manufacturing export companies concerned in the case – and as affirmed at the time of their participation in the proceedings by Assopiastrelle, of which these firms are members, they are major representatives of the Italian porcellanato production market – covers no more than approximately 1.92 per cent of the physical volume (m2) and 1.35 per cent of the total estimated value (Italian lire) of sales in the domestic market according to the information duly supplied".
4.374.
Argentina therefore wonders how it is possible to make a correct determination of the normal value of the goods on the basis of a sample of market sales invoices that is so unrepresentative of the total for domestic sales given by the exporting firms. Indeed, the implementing authority had no alternative but to base its determination on the facts available.
4.375.
Finally, Argentina stresses that the implementing authority pointed out the shortcomings in the accompanying documentation, as well as the impact of those shortcomings on the investigation. The statements by the DCD in the notes appearing in Annexes ARG-7, ARG-10, ARG-11 and ARG-18 to Argentina’s first written submission correspond exactly to the situation described in Article 6.8 of the AD Agreement. That is to say, this is a situation where the investigation was significantly impeded since the DCD was obliged to continue requesting additional evidence, what it had being insufficient.
4.376.
As a result of the repeated requests for supporting documentary evidence, the DCD was obliged to grant repeated extensions to facilitate the pursuit of the investigation, which was impeded by the attitude of the exporters. The combination of these elements placed the authority in a situation in which it did not have the necessary information because the exporting firms were refusing access to that information.
4.377.
This was reflected in the final determination, folio 39, where the implementing authority includes the paragraphs of the argument submitted by Zanon, in that these paragraphs introduce the reasoning which led the implementing authority to use the best information available: "As regards the margins of dumping, we submit that the preliminary determination of the Directorate of Unfair Competition (folios 1131 et seq) should be endorsed in that the information on which it was based, i.e. ‘information and documentation supplied by the domestic manufacturing firm Ceramica Zanon S.A.C.I. y M. and by the domestic importing company Canteras Cerro Negro S.A. (from its Italian supplier ITS S.p.A.)’, is the best information available in view of the lacunae and inconsistencies in the information submitted both by the Italian exporting companies and by Ceramica San Lorenzo (…)."

Rebuttal of various paragraphs of the EC’s first written submission

4.378.
In paragraph 60 of its first written submission, the EC claims that the DCD did not inform the exporters at any time during the investigation that the information on export prices and normal value contained in their questionnaire responses had been disregarded.
4.379.
Argentina does not consider this to be the case, since the DCD repeatedly asked for more extensive information, stressing that the information submitted was insufficient. One only needs to mention, in this connection, the Notes of 30 April, 22 June and 3 August 1999, in which the DCD requests the cooperation of the exporting firms in incorporating already requested evidence or adapting information in the record of the proceedings in order to ensure that the DCD had the information it needed to reach a public conclusion with respect to the matter at issue. Similarly, in its Note of 22 June 1999, the DCD had to repeat the need for further supporting documentation, since what it had was insufficient.
4.380.
The EC is also mistaken when it states, in paragraph 61, that the DCD did not explain in the final dumping determination the reasons why such information was rejected. Indeed, the DCD, in its determinations, pointed out that the information supplied was not sufficient to enable it to reach a reasoned and public conclusion.
4.381.
Firstly, already in its preliminary determination the DCD stated that the fact that the exporting firms had asked most of the information they supplied to be declared confidential implied differential and restricted treatment in processing that information.
4.382.
Likewise, the final determination shows that the implementing authority was restricted in its handling of the information, and therefore requested a review of the status of that documentation and the incorporation in the proceedings of evidence of interest that would enable the Technical Department to present, in its conclusions, the technical and documentary evidence on which they were based from all the firms involved.
4.383.
At the same time, the final determination also shows that as stated before, the lack of representativeness of the sample was a determining factor in forcing the implementing authority to use the best information available.
4.384.
It is well known that a sample of some 2 per cent is not valid in statistical terms. In this case, the exporters submitted as the universe of their sales in the domestic market precisely what is usually considered to be the margin of error, and even worse, they did so without indicating the criterion on which they based their sample.
4.385.
Argentina submits therefore that the DCD used the facts available because it considered that the exporters had acted in a manner that fit the description in Article 6.8, that is to say they refused access to the necessary information, did not supply such information within a reasonable period and significantly impeded the investigation.
4.386.
In its first oral statement, Argentina also presented a series of arguments relating to the EC’s claim under Paragraph 6 of Annex II of the AD Agreement.
4.387.
In Argentina’s view, the EC is mistaken in paragraph 60 of its first written submission when it claims that the DCD did not inform the exporters at any time during the investigation that the information on export prices and normal value contained in the questionnaire responses had been disregarded. Similarly, the EC is mistaken when, in paragraph 61 of its first written submission, it states that the DCD did not explain in the final dumping determination the reasons why such information was rejected.
4.388.
On the contrary, the DCD, in its determinations, showed that the information submitted was not sufficient to enable it to reach at a reasoned and public conclusion.
4.389.
Indeed, Argentina considers that the implementing authority was explicit enough in the notes provided in Annexes ARG-7, ARG-10 and ARG-11 in which it explained to exporters the situation that was developing in the investigation owing to the lack of necessary information within a reasonable period. In other words, Argentina is of the view that sufficient notice was given to exporters that they were involved in the situation described in 6.8 of the AD Agreement.
4.390.
As required in paragraph 6 of Annex II, Argentina informed the exporters of the insufficiency of the information provided and the lack of sufficiently detailed summaries, and granted a series of extensions. Since the requirements had not been met, i.e. since not enough supporting information had been submitted to enable the authority to arrive at a reasoned and public conclusion, the DCD gave the reasons, in its final determination, why the information was disregarded (see paragraphs 61 to 65 of Argentina’s first written submission and folios 29 and 39 of the final determination, incorporated by reference in Resolution No. 1385/99 introducing the measure.

(c) Arguments of Argentina in its oral statement at the third-party session of the first meeting of the Panel with the parties, relating to the EC’s claim under Article 6.8 of the AD Agreement

4.391.
In its oral statement at the third-party session of the first meeting of the Panel with the parties, Argentina made the following arguments relating to the EC’s claim under Article 6.8 of the AD Agreement.
4.392.
Japan’s submission (at paragraph 2) proceeds from certain assumptions that do not apply to this case:

(a) Firstly, that information submitted within a reasonable period and not contested is automatically valid. In fact, this was not the case, since a series of extensions were granted and, above all, the information submitted was insufficient.

(b) Secondly, that the authorities did not point out that the information would not be accepted. This is also wrong: the authority at least pointed out that the information was insufficient, asked for more extensive information, and requested that the confidentiality be removed. Consequently, Japan’s conclusion that in this case "the respondent is reasonably entitled to assume that the investigating authority is satisfied with the information" is false. On the contrary, the authority expressed its dissatisfaction in its notes dated 30 April 1999, 20 June 1999 and 3 August 1999 and gave these reasons in its final determination to justify its decision to use the best information available.

4.393.
Moreover, the authority, in conformity with paragraph 6 of Annex II, notified that it would not consider the information that was not accompanied by a non-confidential summary. Exhibit ARG-20 containing a series of summaries from the four exporting firms with respect to the different annexes in the record: Annex III – List of importers in Argentina and third countries of the goods under investigation; Annex VII – Actual exports to Argentina; Annex VIII – Sales in the Italian domestic market; Annex IX – Exports to third countries; Annex X – Cost structure of the goods under investigation in the Italian domestic market; and Annex XI – Cost structure of the exported goods. Exhibit ARG-20 should help the Panel to appreciate the technical weakness of the non-confidential summaries and confirm that in the circumstances, the authority had no alternative but to resort to the best information available.
4.394.
Thus, Japan’s statement that the exporters did cooperate in the investigation is false. In fact, the contrary is true.
4.395.
Japan is also mistaken in asserting that the authority considered the issue of the date to be the determining factor in its decision to use the best information available. It was the combination of various elements, delays in submitting information, successive extensions, delay in removing the confidentiality of the information, and insufficient non-confidential summaries that meant that the authority had to resort to the best information available, since in fact, the exporting firms were to all intents and purposes refusing access to the information.

(d) Replies of Argentina to the first set of questions by the Panel relating to the EC’s claim under Article 6.8 of the AD Agreement

4.396.
Argentina replied to the first set of questions by the Panel relating to the EC’s claim under Article 6.8 of the AD Agreement as follows:
4.397.
The Panel asked the parties whether, in their view, the DCD rejected the information from the exporters for one of the reasons set out in Article 6.8 AD Agreement. The Panel further asked whether reference was made in the record to one of these reasons and, if so, where. The Panel also asked under what circumstances an investigating authority may resort to secondary source information outside the specific circumstances of Article 6.8 AD Agreement.
4.398.
To this question, Argentina replied that the DCD proceeded the way it did because it found that the combination of different circumstances set out in Article 6.8 of the AD Agreement had been satisfied. Only the circumstances laid down in Article 6.8 could justify recourse to Annex II of the AD Agreement.
4.399.
The Panel recalled that Argentina’s first written submission alleged that the exporters’ questionnaire responses were deficient in many ways. In particular, that such questionnaire responses were submitted late, were not fully translated, lacked public summaries of confidential information sufficiently detailed, lacked some currency conversions, failed to report data on exports to third countries and costs of the product exported, and lacked supporting documentary evidence. The Panel asked Argentina which of these deficiencies, if any, were relied upon by the DCD for its final determination. The Panel further asked if Argentina could provide the Panel with the relevant references in either the report accompanying the final determination or in the administrative record.
4.400.
To this question, Argentina provided the following reply.
4.401.
For its final determination, the DCD did not rely on the deficiencies only, but on all of the facts contained in the record.
4.402.
Paragraphs 7 to 60 inclusive of Argentina’s first written submission and paragraphs 2 to 35 inclusive of Argentina’s first oral statement provide a full explanation of where, in the preliminary and final determinations, each one of the different ways in which the exporters impeded the investigation is recorded: failure to supply information within a reasonable period and refusal of access to the necessary information.
4.403.
In the report on the final determination of the margin of dumping in the investigation at issue, the items identified as V.1.3 and V.2.3 (final determination of normal value and final determination of the f.o.b. export price, respectively) explain both the deficiencies and the limitations that the DCD encountered in analysing the information and documentation supplied by the participating firms.
4.404.
Regarding the last part of the question, Argentina provided a detailed account of the documentation submitted by the firms concerned as an indication of the information to which the DCD had access.
4.405.
The Panel recalled that Argentina, in paragraph 39 of its first written submission, states that "the submission of information and documentation for which confidential treatment is requested constitutes a limiting factor with respect to the analysis and public conclusions of the implementing authority" (emphasis added). The Panel asked Argentina whether, in its opinion, the confidential nature of the information submitted constituted a constraint on the investigating authority’s ability to base its determination on that information. The Panel further asked Argentina to explain in which way it considered that confidentiality limited the DCD’s analysis in this case.
4.406.
Argentina replied that confidentiality imposes a limit on the authority by preventing it from relying on public elements that can be invoked against the parties or third parties, particularly when the information in question is not accompanied by non-confidential summaries in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence and hence to allow the determination reached, which must be public, to be backed.
4.407.
The Panel asked the Parties whether they drew a distinction between the obligation of authorities to protect confidential information from disclosure, on the one hand, and the obligation of authorities to use for their determinations exporter data that meets the requirements of the Agreement.
4.408.
Argentina replied that the above were two different concepts. On the one hand, there was the generic obligation of the authority to protect the confidentiality of information provided in confidence by the exporters and importers during the investigation, information which must be accompanied by non-confidential summaries in sufficient detail to permit a reasonable understanding of its substance. On the other hand, there was another obligation relating to the treatment which the authority must give to the information provided by exporters as an element in calculating the normal value and the export value and determining the margin of dumping. The implementing authority tried to do both things, i.e. to protect the confidentiality of the information submitted in confidence while using the information furnished by the exporters.
4.409.
The Panel recalled Argentina’s statement that, according to the DCD, the non-confidential summaries submitted by the exporters were insufficient under Article 6.5.1 AD Agreement, since this provision required that such summaries permit a "reasonable understanding of the substance of the information provided in confidence". The Panel asked the parties how did they interpret the objective of Article 6.5.1, that is, whose "reasonable understanding" was being addressed – that of the public or that of the investigating authorities?