|Short Title||Full Case Title and Citation|
|Argentina – Ceramic Tiles||Panel Report, Argentina – Definitive Anti-Dumping Measures on Imports of Ceramic Floor Tiles from Italy, WT/DS189/R, adopted 5 November 2001, DSR 2001:XII, 6241|
|Argentina – Footwear (EC)||Appellate Body Report, Argentina – Safeguard Measures on Imports of Footwear, WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, 515|
|Argentina – Poultry Anti-Dumping Duties||Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from Brazil, WT/DS241/R, adopted 19 May 2003, DSR 2003:V, 1727|
|Brazil – Desiccated Coconut||Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut, WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, 167|
|Brazil – Desiccated Coconut||Panel Report, Brazil – Measures Affecting Desiccated Coconut, WT/DS22/R, adopted 20 March 1997, upheld by Appellate Body Report, WT/DS22/AB/R, DSR 1997:I, 189|
|Canada – Aircraft||Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R, adopted 20 August 1999, DSR 1999:III, 1377|
|Canada – Aircraft||Panel Report, Canada – Measures Affecting the Export of Civilian Aircraft, WT/DS70/R, adopted 20 August 1999, upheld by Appellate Body Report, WT/DS70/AB/R, DSR 1999:IV, 1443|
|Canada – Dairy (Article 21.5 – New Zealand and US II)||Appellate Body Report, Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products – Second Recourse to Article 21.5 of the DSU by New Zealand and the United States, WT/DS103/AB/RW2, WT/DS113/AB/RW2, adopted 17 January 2003, DSR 2003:I, 213|
|EC – Bed Linen||Panel Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India, WT/DS141/R, adopted 12 March 2001, as modified by Appellate Body Report, WT/DS141/AB/R, DSR 2001:VI, 2077|
|EC – Bed Linen (Article 21.5 – India)||Panel Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the DSUby India, WT/DS141/RW, adopted 24 April 2003, as modified by Appellate Body Report, WT/DS141/AB/RW, DSR 2003:IV, 1269|
|EC – Countervailing Measures on DRAM Chips||Panel Report, European Communities – Countervailing Measures on Dynamic Random Access Memory Chips from Korea, WT/DS299/R, adopted 3 August 2005, DSR 2005:XVIII, 8671|
|EC – Hormones||Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, 135|
|EC – Trademarks and Geographical Indications (US)||Panel Report, European Communities – Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, Complaint by the United States, WT/DS174/R, adopted 20 April 2005, DSR 2005:VIII-IX, 3499|
|EC – Tube or Pipe Fittings||Appellate Body Report, European Communities – Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil, WT/DS219/AB/R, adopted 18 August 2003, DSR 2003:VI, 2613|
|EC – Tube or Pipe Fittings||Panel Report, European Communities – Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil, WT/DS219/R, adopted 18 August 2003, as modified by Appellate Body Report, WT/DS219/AB/R, DSR 2003:VII, 2701|
|Egypt – Steel Rebar||Panel Report, Egypt – Definitive Anti-Dumping Measures on Steel Rebar from Turkey, WT/DS211/R, adopted 1 October 2002, DSR 2002:VII, 2667|
|Guatemala – Cement II||Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000, DSR 2000:XI, 5295|
|India – Patents (US)||Appellate Body Report, India – Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998, DSR 1998:I, 9|
|India – Quantitative Restrictions||Appellate Body Report, India – Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/AB/R, adopted 22 September 1999, DSR 1999:IV, 1763|
|India – Quantitative Restrictions||Panel Report, India – Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/R, adopted 22 September 1999, upheld by Appellate Body Report, WT/DS90/AB/R, DSR 1999:V, 1799|
|Japan – Apples||Appellate Body Report, Japan - Measures Affecting the Importation of Apples, WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, 4391|
|Japan – DRAMs (Korea)||Panel Report, Japan – Countervailing Duties on Dynamic Random Access Memories from Korea, WT/DS336/R, adopted 17 December 2007, as modified by Appellate Body Report, WT/DS336/AB/R|
|Korea – Dairy||Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000, DSR 2000:I, 3|
|Korea – Resins||GATT Panel Report, Panel on Korea – Anti-Dumping Duties on Imports of Polyacetal Resins from the United States, ADP/92 and Corr.1, adopted 27 April 1993, BISD 40S/205|
|Mexico – Anti-Dumping Measures on Rice||Appellate Body Report, Mexico – Definitive Anti-Dumping Measures on Beef and Rice, Complaint with Respect to Rice, WT/DS295/AB/R, adopted 20 December 2005, DSR 2005:XXII, 10853|
|Mexico – Anti-Dumping Measures on Rice||Panel Report, Mexico – Definitive Anti-Dumping Measures on Beef and Rice, Complaint with Respect to Rice, WT/DS295/R, adopted 20 December 2005, as modified by Appellate Body Report, WT/DS295/AB/R, DSR 2005:XXIII, 11007|
|Mexico – Corn Syrup||Panel Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States, WT/DS132/R, adopted 24 February 2000, and Corr.1, DSR 2000:III, 1345|
|Mexico – Corn Syrup (Article 21.5 – US)||Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States – Recourse to Article 21.5 of the DSUby the United States, WT/DS132/AB/RW, adopted 21 November 2001, DSR 2001:XIII, 6675|
|Mexico – Steel Pipes and Tubes||Panel Report, Mexico – Anti-Dumping Duties on Steel Pipes and Tubes from Guatemala, WT/DS331/R, adopted 24 July 2007|
|Thailand – H-Beams||Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland, WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, 2701|
|Thailand – H-Beams||Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland, WT/DS122/R, adopted 5 April 2001, as modified by Appellate Body Report, WT/DS122/AB/R, DSR 2001:VII, 2741|
|US – 1916 Act (EC)||Panel Report, United States – Anti-Dumping Act of 1916, Complaint by the European Communities, WT/DS136/R and Corr.1, adopted 26 September 2000, upheld by Appellate Body Report, WT/DS136/AB/R, WT/DS162/AB/R, DSR 2000:X, 4593|
|US – Canadian Pork||GATT Panel Report, United States – Countervailing Duties on Fresh, Chilled and Frozen Pork from Canada, DS7/R, adopted 11 July 1991, BISD 38S/30|
|US – Cotton Yarn||Appellate Body Report, United States – Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan, WT/DS192/AB/R, adopted 5 November 2001, DSR 2001:XII, 6027|
|US – Countervailing Duty Investigation on DRAMS||Appellate Body Report, United States – Countervailing Duty Investigation on Dynamic Random Access Memory Semiconductors (DRAMS) from Korea, WT/DS296/AB/R, adopted 20 July 2005, DSR 2005:XVI, 8131|
|US – Countervailing Duty Investigation on DRAMS||Panel Report, United States – Countervailing Duty Investigation on Dynamic Random Access Memory Semiconductors (DRAMS) from Korea, WT/DS296/R, adopted 20 July 2005, as modified by Appellate Body Report, WT/DS296/AB/R, DSR 2005:XVII, 8243|
|US – Countervailing Measures on Certain EC Products||Appellate Body Report, United States – Countervailing Measures Concerning Certain Products from the European Communities, WT/DS212/AB/R, adopted 8 January 2003, DSR 2003:I, 5|
|US – Gambling||Appellate Body Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted 20 April 2005, DSR 2005:XII, 5663, and Corr.1|
|US – Gasoline||Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3|
|US – Hot-Rolled Steel||Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan, WT/DS184/AB/R, adopted 23 August 2001, DSR 2001:X, 4697|
|US – Lamb||Appellate Body Report, United States – Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia, WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001, DSR 2001:IX, 4051|
|US – Lead and Bismuth II||Appellate Body Report, United States – Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138/AB/R, adopted 7 June 2000, DSR 2000:V, 2595|
|US – Lead and Bismuth II||Panel Report, United States – Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138/R and Corr.2, adopted 7 June 2000, upheld by Appellate Body Report, WT/DS138/AB/R, DSR 2000:VI, 2623|
|US – Norwegian Salmon AD||GATT Panel Report, Imposition of Anti-Dumping Duties on Imports of Fresh and Chilled Atlantic Salmon from Norway, ADP/87, adopted 27 April 1994, BISD 41S/229|
|US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina)||Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina – Recourse to Article 21.5 of the DSU by Argentina, WT/DS268/RW, adopted 11 May 2007, as modified by Appellate Body Report, WT/DS268/AB/RW|
|US – Shrimp||Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998, DSR 1998:VII, 2755|
|US – Softwood Lumber III||Panel Report, United States – Preliminary Determinations with Respect to Certain Softwood Lumber from Canada, WT/DS236/R, adopted 1 November 2002, DSR 2002:IX, 3597|
|US – Softwood Lumber IV||Appellate Body Report, United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R, adopted 17 February 2004, DSR 2004:II, 571|
|US – Softwood Lumber IV||Panel Report, United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/R and Corr.1, adopted 17 February 2004, as modified by Appellate Body Report, WT/DS257/AB/R, DSR 2004:II, 641|
|US – Softwood Lumber VI||Panel Report, United States – Investigation of the International Trade Commission in Softwood Lumber from Canada, WT/DS277/R, adopted 26 April 2004, DSR 2004:VI, 2485|
|US – Softwood Lumber VI (Article 21.5 – Canada)||Appellate Body Report, United States – Investigation of the International Trade Commission in Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada, WT/DS277/AB/RW, adopted 9 May 2006, and Corr.1|
|US – Steel Safeguards||Appellate Body Report, United States – Definitive Safeguard Measures on Imports of Certain Steel Products, WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003, DSR 2003:VII, 3117|
|US – Upland Cotton||Panel Report, United States – Subsidies on Upland Cotton, WT/DS267/R, and Add.1-Add.3, and Corr.1, adopted 21 March 2005, as modified by Appellate Body Report, WT/DS267/AB/R, DSR 2005:II-VI, 299|
|US – Wheat Gluten||Appellate Body Report, United States – Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities, WT/DS166/AB/R, adopted 19 January 2001, DSR 2001:II, 717|
|US – Wool Shirts and Blouses||Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997, and Corr.1, DSR 1997:I, 323|
To examine, in the light of the relevant provisions of the covered agreements cited by the European Communities in document WT/DS341/2, 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.
Chair: Ms Debra Steger
Members: Mr. Jan Heukelman
Ms Gloria Peña
1. Articles 11.4 and 16 of the SCM Agreement by initiating the investigation in the absence a determination that the application was made by or on behalf of the domestic industry;
2. Article 11.11 of the SCM Agreement by failing to conclude the investigation within one year, and in no case more than 18 months, after its initiation;
3. Article 12.4.1 of the SCM Agreement by failing to require interested parties to provide non-confidential summaries of confidential information in sufficient detail to permit a reasonable understanding of the substance of the information;
4. Articles 12.8, 22.3, and 22.516 of the SCM Agreement by failing to properly inform the interested parties and to a provide reasonable and adequate explanation of the existence of subsidisation, notably as regards pass-through of any benefit;
5. Article 13.1 of the SCM Agreement by failing to grant an opportunity for consultations before the initiation of the investigation with the aim of clarifying the situation as to matters referred to in Article 11.2 of the SCM Agreement and arriving at a mutually agreed solution;
6. Articles 1.1 and 14 of the SCM Agreement by failing to calculate the benefit conferred on the recipient pursuant to Article 1.1 of the SCM Agreement and to apply the method used to each particular case in a transparent way which is adequately explained as required by Article 14 of the SCM Agreement;
7. Article VI:6 of the GATT 1994 and Articles 15.4, 15.5 and 16 of the SCM Agreement by failing to correctly define the domestic industry;
8. Article VI:6 of the GATT 1994 and Articles 15.1 and 15.4 of the SCM Agreement by failing to make a determination of injury based on positive evidence involving an examination of all relevant economic factors and indices having a bearing on the state of the industry and to provide reasoned and adequate explanation;
9. Article 15.5 of the SCM Agreement by failing to examine any known factors other than the allegedly subsidized imports which were causing injury to the domestic industry; and
10. Articles 13(b)(i) and 21.1 of the Agreement on Agriculture by initiating a countervailing duty investigation on imports of an agricultural product (olive oil) outside the circumstances contemplated in Article 13(b)(i) of the Agreement on Agriculture and in violation of Article 21.117 of the Agreement on Agriculture.
1. with regard to initiation, that Mexico acted in a manner consistent with Articles 11.4 and 16.1 of the SCM Agreement because Economía properly determined, based on sufficient facts in the application, that Fortuny was the sole domestic producer and was representative of the Mexican domestic industry19;
2. with regard to the duration of the investigation, that Mexico acted consistently with the provisions of Article 11.11 of the SCM Agreement because although the investigation lasted more than 18 months, there were "exceptional circumstances": the delays resulted from Economía's acceptance of requests for extensions by interested exporters, so the rights of interested parties were not adversely affected20;
3. with regard to the non-confidential summaries of confidential information, that Mexico acted in a manner consistent with Article 12.4.1 of the SCM Agreement because there were sufficiently detailed public summaries of all confidential information, and because of Mexico's regime for access to the confidential information on the record21;
4. with regard to the disclosure of the essential facts that served as a basis for the decision to apply definitive measures, that Mexico acted in a manner consistent with Article 12.8 of the SCM Agreement because interested parties may be informed of the essential facts in a number of ways. The essential facts were disclosed in the Preliminary Resolution, which described in detail the treatment of information, arguments and evidence furnished by the parties, and the reasons for information having been taken into account or rejected22;
5. with regard to the invitation for consultations prior to initiation of the investigation, that Mexico acted consistently with Article 13.1 of the SCM Agreement because Economía invited the European Communities for consultations prior to the date of initiation23;
6. with regard to the alleged failure to calculate the benefit conferred on the recipient pursuant to Article 1.1 of the SCM Agreement and to apply the method used to each particular case in a transparent way which is adequately explained, in violation of Article 14 of the SCM Agreement, that: (a) there is no provision in the SCM Agreement to indicate that a "pass-through" analysis is required, (b) as Economía correctly found that the subsidy was contingent on the production of olive oil, there was no need to analyze the transfer of the subsidy from olive growers to the producers of the olive oil; and (c) the methodology to calculate the subsidy margin used by Economía was correct24;
7. with regard to Economía's definition of the domestic industry, that Mexico acted consistently with Article 16 of the SCM Agreement and did not violate Article VI:6 of the GATT 1994, because the European Communities failed to present a prima facie case of violation; and that, in any case, Economía made an exhaustive examination of all matters that might have been relevant to the evaluation of injury to the domestic industry and all the evidence reviewed pointed to the conclusion that the domestic industry was composed of Fortuny25;
8. with regard to Economía's determination of injury, that Economía undertook its analysis of injury consistently with Article 15.1 and 15.4 of the SCM Agreement, and did not violate Article VI:6 of the GATT 1994, because Economía complied with Article 15.1 and 15.2 of the SCM Agreement by undertaking an objective examination based on positive evidence of the effect of the subsidized imports on prices, and Economía did examine all of the relevant factors listed in Article 15.4 of the SCM Agreement in its examination of the impact of the subsidized imports on the domestic industry26;
9. with regard to Economía's consideration of "other known factors", that the European Communities has failed to present a prima facie case and that, in any event, Economía properly considered, as required by Article 15.5 of the SCM Agreement, any known factors, other than the allegedly subsidized imports, which were causing injury to the domestic industry27; and
10. with regard to the investigation on imports of an agricultural product outside the circumstances contemplated in Article 13(b)(i) of the Agreement on Agriculture, that the European Communities has not presented a prima facie case and, in any event, that Economía exercised due restraint in the initiation of the investigation; that the obligation to show "due restraint" did not apply to any action in the investigation other than the initiation, and that the obligations contained in Article 13(b)(i) only applied to the initiation and not to any other aspects of the investigation on olive oil given that the Article expired on 31 December 2003 and thus was not applicable after the initiation of the investigation.28
"the failure to calculate the benefit conferred on the recipient pursuant to paragraph 1 of Article 1 of the SCMAgreement and to apply the method used to each particular case in a transparent way which is adequately explained, in violation of Article 14 of the SCM Agreement;"
Furthermore, we asked specific questions to the European Communities as to the nature of its claim under Article 14, and have described this exchange in paragraph 7,168 and footnote 196. The European Communities made no objection to our question on the grounds that it imperfectly reflected the nature of its claim. Finally, as a practical matter, in order to assess the merits of this claim, we had no choice but to analyze the provisions separately to see whether either one contains an obligation to conduct a pass-through analysis.
[A] panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements... (emphasis added)
should bear in mind its role as reviewer of agency action, rather than as initial trier of fact. Thus, a panel examining the evidentiary basis for a subsidy determination should, on the basis of the record evidence before the panel, inquire whether the evidence and explanation relied on by the investigating authority reasonably supports its conclusions....(footnotes omitted)32
A panel's examination of those conclusions must be critical and searching, and be based on the information contained in the record and the explanations given by the authority in its published report. A panel must examine whether, in the light of the evidence on the record, the conclusions reached by the investigating authority are reasoned and adequate. What is 'adequate' will inevitably depend on the facts and circumstances of the case and the particular claims made, but several general lines of inquiry are likely to be relevant. The panel's scrutiny should test whether the reasoning of the authority is coherent and internally consistent. The panel must undertake an in-depth examination of whether the explanations given disclose how the investigating authority treated the facts and evidence in the record and whether there was positive evidence before it to support the inferences made and conclusions reached by it. The panel must examine whether the explanations provided demonstrate that the investigating authority took proper account of the complexities of the data before it, and that it explained why it rejected or discounted alternative explanations and interpretations of the record evidence. A panel must be open to the possibility that the explanations given by the authority are not reasoned or adequate in the light of other plausible alternative explanations, and must take care not to assume itself the role of initial trier of facts, nor to be passive by 'simply accept[ing] the conclusions of the competent authorities'.35
the party who asserts a fact, whether the claimant or the respondent, is responsible for providing proof thereof. Also, it is a generally-accepted canon of evidence in civil law, common law, and, in fact, in most jurisdictions, that the burden of proof rests upon the party, whether complaining or defending, who asserts the affirmative of a particular claim or defence. If that party adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then shifts to the other party, who will fail unless it adduces sufficient evidence to rebut the presumption. (original footnote omitted).37
as a general matter, the burden of proof rests upon the complaining Member. That Member must make out a prima facie case by presenting sufficient evidence to raise a presumption in favour of its claim. If the complaining Member succeeds, the responding Member may then seek to rebut this presumption. Therefore, under the usual allocation of the burden of proof, a responding Member's measure will be treated as WTO-consistent, until sufficient evidence is presented to prove the contrary.38
Article 31: General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
Article 32: Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
Article 33: Interpretation of treaties authenticated in two or more languages
1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.
2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.
3. The terms of the treaty are presumed to have the same meaning in each authentic text.
4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.
13.1 As soon as possible after an application under Article 11 is accepted, and in any event before the initiation of any investigation, Members the products of which may be subject to such investigation shall be invited for consultations with the aim of clarifying the situation as to the matters referred to in paragraph 2 of Article 11 and arriving at a mutually agreed solution.
During the implementation period, notwithstanding the provisions of GATT 1994 and the Agreement on Subsidies and Countervailing Measures (referred to in this Article as the "Subsidies Agreement"):
(b) domestic support measures that conform fully to the provisions of Article 6 of this Agreement including direct payments that conform to the requirements of paragraph 5 thereof, as reflected in each Member's Schedule, as well as domestic support within de minimis levels and in conformity with paragraph 2 of Article 6, shall be:
(i) exempt from the imposition of countervailing duties unless a determination of injury or threat thereof is made in accordance with Article VI of GATT 1994 and Part V of the Subsidies Agreement, and due restraint shall be shown in initiating any countervailing duty investigations;...
... the six-year period commencing in the year 1995, except that, for the purposes of Article 13, it means the nine-year period commencing in 1995;
12.4.1 The authorities shall require interested Members or interested parties providing confidential information to furnish non-confidential summaries thereof. These summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. In exceptional circumstances, such Members or parties may indicate that such information is not susceptible of summary. In such exceptional circumstances, a statement of the reasons why summarization is not possible must be provided.
There is no express provision regulating what should occur in the circumstance where an investigating authority considers that a request for confidentiality is warranted, beyond the obligation to treat such information as confidential. Nor does the text of the Article 6.5 or 6.5.1 contain any express obligation relating to how an investigating authority should decide in respect of a party's assertion that summarization of confidential information is not possible, nor how an investigating authority should or must communicate any decision on this matter.121 (footnotes omitted) (emphasis in original)
Notwithstanding the foregoing, while such a system of limited disclosure is certainly envisaged by Article [12.4.1 of the SCM Agreement], and may certainly act as a supplement to a Member's fulfilment of its obligations under Article [12.4.1 of the SCM Agreement], we find no textual basis in Article [12.4.1 of the SCM Agreement] that would indicate to us that permitting limited access to the entire confidential record to individuals fulfilling certain conditions, provides a derogation from, or replaces, the obligations of an investigating authority under Article [12.4.1 of the SCM Agreement] to require justification for treatment of information as confidential and, if such treatment is justified, to require non-confidential summaries of the confidential information, or, alternatively, to require justification for the non-summarization of certain information. (footnotes omitted)124
It is necessary to clarify that it is not possible to prepare public summaries of the information and documents that we classified as confidential because of the nature of such information and documents. Also, it is necessary to emphasize that consultation of the public version of the presented documents gives a reasonable and integral understanding of what is submitted.131
The authorities shall, before a final determination is made, inform all interested Members and interested parties of the essential facts under consideration which form the basis for the decision whether to apply definitive measures. Such disclosure should take place in sufficient time for the parties to defend their interests.
No countervailing duty shall be levied on any product of the territory of a Member imported into the territory of another Member in excess of an amount equal to the estimated bounty or subsidy determined to have been granted, directly or indirectly, on the manufacture, production or export of such product in the country of origin or exportation…..
Definition of a Subsidy
1.1 For the purpose of this Agreement, a subsidy shall be deemed to exist if:
(a)(1) there is a financial contribution by a government or any public body within the territory of a Member (referred to in this Agreement as "government")...
(b) a benefit is thereby conferred.
Calculation of the Amount of a Subsidy in Terms
of the Benefit to the Recipient
For the purpose of Part V, any method used by the investigating authority to calculate the benefit to the recipient conferred pursuant to paragraph 1 of Article 1 shall be provided for in the national legislation or implementing regulations of the Member concerned and its application to each particular case shall be transparent and adequately explained. Furthermore, any such method shall be consistent with the following guidelines…
"100. In this stage of the investigation, the Ministry confirms its preliminary determination that the subsidy provided by the European Community is olive oil and only a small proportion is destined to olives. From a reading of Regulation 136/66/EEC the purpose and the benefited product are clear. We cite the following paragraphs (the underlining is ours):
'Whereas olive growing and the production of olive oil are particularly important to the economies of certain regions of the Community... that for many consumers, olive oil is the most important source of oils and fats... it is necessary to support this productions through appropriate actions.
'Whereas, to this end, the marketing of the crops must assure fair remuneration to Community producers, the level of which can be defined by a production target price for olive oil...
1. A production target price shall be set for the Community.
This price shall be fixed at the wholesale marketing stage for ordinary virgin olive oil with a free fatty acid content expressed as oleic acid of 3.3g / 100g.
2. For the 1998/99 to 2003/04 marketing years, the target production prices referred to in part 1 shall be fixed at 383.77 ecus/100 kg.
3. Except as otherwise decided by the Council by qualified majority pursuant to a proposal by the Commission, the marketing year for olive oil shall run from 1 November to 31 October of the following year.
1. Aid for the production of olive oil shall be established. This aid is designed to contribute to the establishment of a fair income for the producers.
The aid shall be provided to the oil growers on the basis of the quantity of olive oil they actually produce.
7. With a view to establishing guidance for checks on the determination of the quantity of oil eligible for the aid, yields will be established for olives and oil per homogeneous production zones.
9. A percentage of the production aid provided to all or a part of the producers in each producing Member State shall be used to finance regional measures to improve the quality of the production of olive oil and table olives, and their environmental impact.
20. When olive oil is exported to third countries and the world prices are higher than the Community price, a regulatory levy may be collected to compensate for these price differences.'
101. The cited regulation establishes, in Article 1, that the aid is to be applied to certain products including olive oil classified in code NC 1509 which refers to olive oil and its fractions, whether or not refined, but without chemical modification, and code NC 1510 00 for the other oils obtained exclusively from olives, and their fractions, including refined oils, but without chemical modification, and blends of those oils or fractions of heading 1509.
102. Furthermore, the EC has notified the Committee on Agriculture of the WTO of its internal aid programme for different products. It should be emphasized that among the listed products, olive oil is identified as a "designated product".
103. As mentioned in the Preliminary Resolution, the Ministry is of the opinion that if a producer of olives brings its product to a mill to obtain olive oil, and in the extreme case obtains nothing, it is clear that this producer would not benefit under the aid programme. That is, the only way in which an olive producer would have access to the subsidy would be on the basis of the olive oil actually produced, which is the product referred to in Regulation 136/66/EEC.
104. On the basis of what is stated in paragraphs 100 to 103 of this Resolution, the Ministry considers that it is unquestionable that the subsidy provided by the European Community is to olive oil, that is, to the product that is subject to the investigation, and that this is not an incorrect interpretation or a problem of translation. At the same time, the Ministry accepts that, as mentioned in Regulation 136/66/EEC, there is a part of the aid that can be applied to support table olives, which are not part of the present investigation."
… this is not an investigation of a subsidy to an input (olives) but rather to olive oil, which is itself the product exported to Mexico, for which reason the investigating authority is not obligated to conduct a pass-through analysis of the subsidy because, as provided for in point 100 of the present Resolution, it is unquestionable that Regulation 136/66/EEC and its amendments establish that the aid programme is for olive oil.200
an investigation in the absence of a determination by the Mexican authorities that the application was made by or on behalf of the domestic industry, in violation of Articles 11.4 and 16 of the SCM Agreement215
16.1 For the purposes of this Agreement, the term 'domestic industry' shall, except as provided in paragraph 2, be interpreted as referring to the domestic producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion of the total domestic production of those products, except that when producers are related to the exporters or importers or are themselves importers of the allegedly subsidized product or a like product from other countries, the term 'domestic industry' may be interpreted as referring to the rest of the producers. (footnote omitted)
'domestic industry' shall be understood to mean the producers as a whole of the like or directly competitive products operating within the territory of a Member, or those whose collective output of the like or directly competitive products constitutes a major proportion of the total domestic production of those products.233
While the legal question and the agreementat issue in that case were different from those before us, and thus are not directly applicable to the present dispute, the language in the Agreement on Safeguards nevertheless is sufficiently similar to the language in the SCM Agreement that we consider the reasoning in US – Lamb to be useful to our inquiry into the meaning of the word "producer" in Article 16.1 of the SCM Agreement.
a "producer" is variously defined as "a person or a thing which produces something", or "one that produces, especially one that grows agricultural products or manufactures articles". To "produce" means to "bring a thing into existence, bring about, effect or cause an action or result", or "to give being, form or shape to, make, or manufacture"....
The Appellate Body, in reviewing the panel's interpretation, approved of the use of these definitions, stating that "[a]s the Panel indicated, 'producers' are those who grow or manufacture an article; 'producers' are those who bring a thing into existence."234
11.4 An investigation shall not be initiated pursuant to paragraph 1 unless the authorities have determined, on the basis of an examination of the degree of support for, or opposition to, the application expressed by domestic producers of the like product, that the application has been made by or on behalf of the domestic industry. The application shall be considered to have been made "by or on behalf of the domestic industry" if it is supported by those domestic producers whose collective output constitutes more than 50 per cent of the total production of the like product produced by that portion of the domestic industry expressing either support for or opposition to the application. However, no investigation shall be initiated when domestic producers expressly supporting the application account for less than 25 per cent of total production of the like product produced by the domestic industry.
(a) statements made by Fortuny concerning the state of the domestic industry;
(b) letters dated 3 October 2002, and 27 and 28 January 2003, from the state of Baja California in respect of Fortuny's productive capacity (these were attached to the application); and
(c) information contained in the article "El Olivo, Eco del Mediterraneo" in the journal Claridades Agropecuarias ("Claridades article"), published June 2001 by the Government Agency the "Agricultural Marketing Support and Services" ("ASERCA") of the Federal Ministry of Agriculture, Livestock, Rural Development and Food (this article was also attached to the application).
The statements of Fortuny, the letters from Baja California, and the Claridades article are all referred to in the Initiation Resolution.261
The main companies established in Mexico that process olives for [table consumption] are Ybarra and Bufalo and for oil only the former.266
Mexico considers that this statement indicates that there were two main companies in Mexico that processed olives for table consumption, but only one company that processed olives for oil, namely Ybarra (predecessor to Fortuny).267 The European Communities' position is that the adjective "main" refers both to the companies producing table olives and the companies producing oil (i.e., that Ybarra and Bufalo were the main companies producing table olives while Ybarra was the main company producing olive oil). For the European Communities, the use of the term "main" as applied to the production of olive oil implies that there were other entities producing olive oil, and it argues that on this basis Mexico was obliged to conduct further investigations to identify such entities and, presumably, to consider their production volume and support for the application in addressing standing pursuant to Article 11.4 of the SCM Agreement.268
A determination of injury for purposes of Article VI of GATT 1994 shall be based on positive evidence and an objective examination of (a) the volume of the subsidized imports and the effect of the subsidized imports on prices in the domestic market for like products and (b) the consequent impact of these imports on the domestic producers of such products.
…the term 'objective examination' is concerned with the investigative process itself. An 'objective examination' requires that the domestic industry, and the effects of dumped imports, be investigated in an unbiased manner, without favouring the interests of any interested party, or group of interested parties, in the investigation. The duty of the investigating authorities to conduct an 'objective examination' recognizes that the determination will be influenced by the objectivity, or any lack thereof, of the investigative process. Therefore, the identification, investigation and evaluation of the relevant factors must be 'even-handed'.337