"To examine, in the light of the relevant provisions of the covered agreements cited by the European Communities in document WT/DS212/15, 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".3
· The United States has failed to implement the recommendations and rulings of the DSB and acted inconsistently with its obligations under Articles 10, 14, 19.4, 21.1, and 21.3 of the SCM Agreement and Article VI:3 of the GATT 1994 because it did not determine properly whether the privatized French company Usinor in Certain Corrosion-Resistant Carbon Steel Flat Products from France continued to receive any benefit from financial contributions previously bestowed on state-owned producers;
· The United States has acted inconsistently with its obligations under Article 21.3 of the SCM Agreement because it failed to consider evidence on the record in Cut-to-Length Carbon Steel Plate from the United Kingdom and Cut-to-Length Carbon Steel Plate from Spain demonstrating that the benefits from programmes found to confer countervailable subsidies no longer existed;
· The United States has failed to implement the recommendations and rulings adopted by the DSB and acted inconsistently with its obligations under Articles 10, 14, 19.4, 21.1, and 21.3 of the SCM Agreement and Article VI:3 of the GATT 1994 by refusing to examine whether, and for failing to find that, the privatizations of BS plc in Cut-to-Length Carbon Steel Plate from the United Kingdom and Aceralia in Cut-to-Length Carbon Steel Plate from Spain were at arm’s length and for FMV; and, that
· The United States has failed to meet its obligations under Article 21.3 of the SCM Agreement because it did not examine in Certain Corrosion-Resistant Carbon Steel Flat Products from France, Cut-to-Length Carbon Steel Plate from the United Kingdom and Cut-to-Length Carbon Steel Plate from Spain whether expiry of the duty would be likely to lead to continuation or recurrence of material injury.12
Appellate Body Report on US – Countervailing Measures on Certain EC Products, footnote 4 (stating that "[t]he USDOC analyzed the sales conditions of the privatizations in two of the underlying sunset reviews (Case Nos. 8 and 10) and three of the original investigations (Case Nos. 1, 2, and 4), concluding that those five privatizations took place at arm's length and for fair market value," and citing, among others, the remand determinations in AlleghenyLudlum and GTS).
"the obligation under Article 21.2 of the SCM Agreement... requires an investigating authority in an administrative review, upon receiving information of a privatization resulting in a change in ownership, to determine whether a "benefit" continues to exist. In our view, the SCM Agreement, by virtue of Articles 10, 19.4, and 21.1, also imposes an obligation to conduct such a determination on an investigating authority conducting a sunset review. As we observed earlier, the interplay of GATT Article VI:3 and Articles 10, 19.4 and 21.1 of the SCM Agreement prescribes an obligation applicable to original investigations as well as to reviews covered under Article 21 of the SCM Agreement to limit countervailing duties to the amount and duration of the subsidy found to exist by the investigating authority."74
"The effect of such a privatization [at arm's length and for FMV] is to shift to the investigating authority the burden of identifying evidence which establishes that the benefit from the previous financial contribution does indeed continue beyond privatization. In the absence of such proof, the fact of the arm's length, fair market value privatization is sufficient to compel a conclusion that the "benefit" no longer exists for the privatized firm, and, therefore, that countervailing duties should not be levied."75
"[w]e believe that privatization calls for a (re)determination of the existence of a benefit to the privatized producer, and that fair market value payment by the privatized producer (and its owners) extinguishes the benefit resulting from the prior financial contribution (subsidization) bestowed upon the state-owned producer, because no advantage or benefit accrued to that privatized producer over and above what market conditions dictate pursuant to Article 14 of the SCM Agreement."77
The Panel also stated that:
"if upon privatization, fair market value is paid for all productive assets, goodwill, etc. employed by the state-owned producer, the Panel fails to see how the subsidies bestowed to the state-owned producer could subsequently be considered to still confer a "benefit" on the privatized producer (in the sense of the company together with its owners) who has paid fair market value for all the shares and assets, reflecting, we must assume, the value of past subsidization."78
"This standard may be summarized as follows: panels must examine whether the competent authority has evaluated all relevant factors; they must assess whether the competent authority has examined all the pertinent facts and assessed whether an adequate explanation has been provided as to how those facts support the determination; and they must also consider whether the competent authority's explanation addresses fully the nature and complexities of the data and responds to other plausible interpretations of the data. However, panels must not conduct a de novo review of the evidence nor substitute their judgement for that of the competent authority."297
"These obligations of investigating authorities inform the task of a panel called upon to evaluate the consistency of an investigating authority's determination with Article 11.3 of the Anti-Dumping Agreement. The task of the panel is to assess whether the investigating authorities properly established the facts and evaluated them in an unbiased and objective manner.303 We agree with the Panel that '[its] task [was] not to perform a de novo review of the information and evidence on the record of the underlying sunset review, nor to substitute [its] judgment for that of the US authorities'.304 If the panel is satisfied that an investigating authority's determination on continuation or recurrence of dumping or injury rests upon a sufficient factual basis to allow it to draw reasoned and adequate conclusions, it should conclude that the determination at issue is not inconsistent with Article 11.3 of the Anti-Dumping Agreement.305"306
"We understand the Panel to be stating that privatization at arm's length and for fair market value privatization presumptively extinguishes any benefit received from the non-recurring financial contribution bestowed upon a state-owned firm. The effect of such a privatization is to shift to the investigating authority the burden of identifying evidence which establishes that the benefit from the previous financial contribution does indeed continue beyond privatization. In the absence of such proof, the fact of the arm's-length, fair market value privatization is sufficient to compel a conclusion that the 'benefit' no longer exists for the privatized firm, and, therefore, that countervailing duties should not be levied. This is an accurate characterization of a Member's obligations under the SCM Agreement.
... Privatization at arm's length and for fair market value may result in extinguishing the benefit. Indeed, we find that there is a rebuttable presumption that a benefit ceases to exist after such a privatization. Nevertheless, it does not necessarily do so. There is no inflexible rule requiring that investigating authorities, in future cases, automatically determine that a 'benefit' derived from pre-privatization financial contributions expires following privatization at arm's length and for fair market value. It depends on the facts of each case."310