Upcoming Webinar - "Jus Mundi's Conflict Checker" on Friday, April 10th 2020 - 6:00 PM (CEST) - Register here !
Source(s) of the information:
Source(s) of the information:

Recourse to Article 21.5 of the DSU by the European Communities - Report of the Panel

TABLE OF CASES CITED IN THIS REPORT

Short TitleFull Case Title and Citation
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
Argentina – Textiles and Apparel Panel Report, Argentina – Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, WT/DS56/R, adopted 22 April 1998, as modified by Appellate Body Report, WT/DS56/AB/R, DSR 1998:III, 1033
Australia – Automotive Leather II (Article 21.5 – US) Panel Report, Australia – Subsidies Provided to Producers and Exporters of Automotive Leather – Recourse to Article 21.5 of the DSU by the United States, WT/DS126/RW and Corr.1, adopted 11 February 2000, DSR 2000:III, 1189
Australia – Salmon (Article 21.5 – Canada) Panel Report, Australia – Measures Affecting Importation of Salmon – Recourse to Article 21.5 of the DSU by Canada, WT/DS18/RW, adopted 20 March 2000, DSR 2000:IV, 2031
Brazil – Aircraft Appellate Body Report, Brazil – Export Financing Programme for Aircraft, WT/DS46/AB/R, adopted 20 August 1999, DSR 1999:III, 1161
Brazil – Aircraft Panel Report, Brazil – Export Financing Programme for Aircraft, WT/DS46/R, adopted 20 August 1999, as modified by Appellate Body Report, WT/DS46/AB/R, DSR 1999:III, 1221
Brazil – Aircraft (Article 21.5 – Canada) Panel Report, Brazil – Export Financing Programme for Aircraft – Recourse by Canada to Article 21.5 of the DSU, WT/DS46/RW, adopted 4 August 2000, as modified by Appellate Body Report, WT/DS46/AB/RW, DSR 2000:IX, 4093
Canada – Aircraft (Article 21.5 – Brazil) Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft – Recourse by Brazil to Article 21.5 of the DSU, WT/DS70/AB/RW, adopted 4 August 2000, DSR 2000:IX, 4299
Canada – Wheat Exports and Grain Imports Panel Report, Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain, WT/DS276/R, adopted 27 September 2004, upheld by Appellate Body Report, WT/DS276/AB/R, DSR 2004:VI, 2817
Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products, WT/DS207/AB/R, adopted 23 October 2002, DSR 2002:VIII, 3045, and Corr.1
Chile – Price Band System Panel Report, Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products, WT/DS207/R, adopted 23 October 2002, as modified by Appellate Body Report, WT/DS207AB/R, DSR 2002:VIII, 3127
Chile – Price Band System (Article 21.5 – Argentina) Appellate Body Report, Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products – Recourse to Article 21.5 of the DSU by Argentina, WT/DS207/AB/RW, adopted 22 May 2007
Dominican Republic – Import and Sale of Cigarettes Panel Report, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, WT/DS302/R, adopted 19 May 2005, as modified by Appellate Body Report, WT/DS302/AB/R, DSR 2005:XV, 7425
EC – Bananas III(Article 21.5 – Ecuador) Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas – Recourse to Article 21.5 of the DSU by Ecuador, WT/DS27/RW/ECU, adopted 6 May 1999, DSR 1999:II, 803
EC – Bananas III(Article 21.5 – US) Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas – Recourse to Article 21.5 of the DSU by the United States, WT/DS27/RW/USA and Corr.1, circulated to WTO Members 19 May 2008 [adoption pending]
EC – Bed Linen Appellate Body Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India, WT/DS141/AB/R, adopted 12 March 2001, DSR 2001:V, 2049
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) Appellate Body 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/AB/RW, adopted 24 April 2003, DSR 2003:III, 965
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 – Chicken Cuts Appellate Body Report, EuropeanCommunities – Customs Classification of Frozen Boneless Chicken Cuts, WT/DS269/AB/R, WT/DS286/AB/R, adopted 27 September 2005, and Corr.1, DSR 2005:XIX, 9157
EC – Salmon (Norway) Panel Report, European Communities – Anti-Dumping Measure on Farmed Salmon from Norway, WT/DS337/R, adopted 15 January 2008
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998, DSR 1998:IX, 3767
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 – Autos Panel Report, India – Measures Affecting the Automotive Sector, WT/DS146/R, WT/DS175/R and Corr.1, adopted 5 April 2002, DSR 2002:V, 1827
Indonesia – Autos Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R and Corr.1 and 2, adopted 23 July 1998, and Corr.3 and 4, DSR 1998:VI, 2201
Japan – Film Panel Report, Japan – Measures Affecting Consumer Photographic Film and Paper, WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, 1179
US – 1916 Act (Japan) Panel Report, United States – Anti-Dumping Act of 1916, Complaint by Japan , WT/DS162/R and Add.1, adopted 26 September 2000, upheld by Appellate Body Report, WT/DS136/AB/R, WT/DS162/AB/R, DSR 2000:X, 4831
US – Anti-Dumping Measures on Oil Country Tubular Goods Appellate Body Report, United States – Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico, WT/DS282/AB/R, adopted 28 November 2005, DSR 2005:XX, 10127
US – Anti-Dumping Measures on Oil Country Tubular Goods Panel Report, United States – Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico, WT/DS282/R, adopted 28 November 2005, as modified by Appellate Body Report, WT/DS282/AB/R, DSR 2005:XXI, 10225
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany, WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, 3779
US – Carbon Steel Panel Report, United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany, WT/DS213/R and Corr.1, adopted 19 December 2002, as modified by Appellate Body Report, WT/DS213/AB/R, DSR 2002:IX, 3833
US – Corrosion-Resistant Steel Sunset Review Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan, WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, 3
US – Corrosion-Resistant Steel Sunset Review Panel Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan, WT/DS244/R, adopted 9 January 2004, as modified by Appellate Body Report, WTDS244/AB/R, DSR 2004:I, 85
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 Measures on Certain EC Products (Article 21.5 – EC) Panel Report, United States – Countervailing Measures Concerning Certain Products from the European Communities – Recourse to Article 21.5 of the DSU by the European Communities, WT/DS212/RW, adopted 27 September 2005, DSR 2005:XVIII, 8950
US –Customs Bond Directive Panel Report, United States – Customs Bond Directive for Merchandise Subject to Anti-Dumping/Countervailing Duties, WT/DS345/R, adopted 1 August 2008, as modified by Appellate Body Report, WT/DS343/AB/R, WT/DS345/AB/R
US – FSC (Article 21.5 – EC) Appellate Body Report, United States – Tax Treatment for "Foreign Sales Corporations" – Recourse to Article 21.5 of the DSU by the European Communities, WT/DS108/AB/RW, adopted 29 January 2002, DSR 2002:I, 55
US – FSC (Article 21.5 – EC II) Appellate Body Report, United States – Tax Treatment for "Foreign Sales Corporations" – Second Recourse to Article 21.5 of the DSU by the European Communities, WT/DS108/AB/RW2, adopted 14 March 2006
US – Gasoline Panel Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/R, adopted 20 May 1996, as modified by Appellate Body Report, WT/DS2/AB/R, DSR 1996:I, 29
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 – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) Appellate Body 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/AB/RW, adopted 11 May 2007
US – Section 129(c)(1) URAA Panel Report, United States – Section 129(c)(1) of the Uruguay Round Agreements Act, WT/DS221/R, adopted 30 August 2002, DSR 2002:VII, 2581
US – Shrimp (Article 21.5 – Malaysia) Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/AB/RW, adopted 21 November 2001, DSR 2001:XIII, 6481
US – Shrimp (Article 21.5 – Malaysia) Panel Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/RW, adopted 21 November 2001, upheld by Appellate Body Report, WT/DS58/AB/RW, DSR 2001:XIII, 6529
US – Shrimp (Thailand) / US –Customs Bond Directive Appellate Body Report, United States – Measures Relating to Shrimp from Thailand / United States – Customs Bond Directive for Merchandise Subject to Anti-Dumping/Countervailing Duties, WT/DS343/R, WT/DS345/R, circulated to WTO Members 16 July 2008 [adoption pending]
US – Shrimp (Thailand) Panel Report, United States – Measures Relating to Shrimp from Thailand, WT/DS343/R, adopted 1 August 2008, as modified by Appellate Body Report, WT/DS343/AB/R, WT/DS345/AB/R
US – Softwood Lumber IV (Article 21.5 – Canada) Appellate Body Report, United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada – Recourse by Canada to Article 21.5 of the DSU, WT/DS257/AB/RW, adopted 20 December 2005, DSR 2005:XXIII, 11357
US – Softwood Lumber IV (Article 21.5 – Canada) Panel Report, United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada – Recourse by Canada to Article 21.5 [of the DSU], WT/DS257/RW, adopted 20 December 2005, upheld by Appellate Body Report, WT/DS257/AB/RW, DSR 2005:XXIII, 11401
US – Softwood Lumber V Appellate Body Report, United States – Final Dumping Determination on Softwood Lumber from Canada, WT/DS264/AB/R, adopted 31 August 2004, DSR 2004:V, 1875
US – Stainless Steel (Mexico) Appellate Body Report, United States – Final Anti-Dumping Measures on Stainless Steel from Mexico, WT/DS344/AB/R, adopted 20 May 2008
US – Stainless Steel (Mexico) Panel Report, United States – Final Anti-Dumping Measures on Stainless Steel from Mexico, WT/DS344/R, adopted 20 May 2008, as modified by Appellate Body Report, WT/DS344/AB/R
US – Upland Cotton Panel Report, United States – Subsidies on Upland Cotton, WT/DS267/R, Corr.1, and Add.1 to Add.3, adopted 21 March 2005, as modified by Appellate Body Report, WT/DS267/AB/R, DSR 2005:II, 299
US – Upland Cotton (Article 21.5 – Brazil) Appellate Body Report, United States – Subsidies on Upland Cotton – Recourse to Article 21.5 of the DSU by Brazil, WT/DS267/AB/RW, adopted 20 June 2008
US – Upland Cotton (Article 21.5 – Brazil) Panel Report, United States – Subsidies on Upland Cotton – Recourse to Article 21.5 of the DSU by Brazil, WT/DS267/RW and Corr.1, adopted 20 June 2008, as modified by Appellate Body Report, WT/DS267/AB/RW
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
US – Wool Shirts and Blouses Panel Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/R, adopted 23 May 1997, upheld by Appellate Body Report, WT/DS33/AB/R, DSR 1997:I, 343
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing"), WT/DS294/AB/R, adopted 9 May 2006, and Corr.1, DSR 2006:II, 417
US – Zeroing (EC) Panel Report, United States – Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing"), WT/DS294/R, adopted 9 May 2006, as modified by Appellate Body Report, WT/DS294/AB/R, DSR 2006:II, 521
US – Zeroing (Japan) Appellate Body Report, United States – Measures Relating to Zeroing and Sunset Reviews, WT/DS322/AB/R, adopted 23 January 2007
US – Zeroing (Japan) Panel Report, United States – Measures Relating to Zeroing and Sunset Reviews, WT/DS322/R, adopted 23 January 2007, as modified by Appellate Body Report, WT/DS322/AB/R

I. INTRODUCTION

1.1.
On 13 September 2007, the European Communities requested the establishment of a panel pursuant to Article 21.5 of the Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU") concerning the alleged failure of the United States to implement the recommendations and rulings of the Dispute Settlement Body ("DSB") in United States – Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing").1
1.2.
At its meeting on 25 September 2007, the Dispute Settlement Body ("DSB") decided, in accordance with Article 21.5 of the DSU, to refer this matter, if possible, to the original panel.
1.3.
The Panel's terms of reference are the following:

"To examine, in the light of the relevant provisions of the covered agreements cited by the European Communities in document WT/DS294/25, 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 28 November 2007, the European Communities requested the Director-General to determine the composition of the Panel.
1.5.
Article 8.7 of the DSU provides:

"If there is no agreement on the panelists within 20 days after the date of the establishment of a panel, at the request of either party, the Director-General, in consultation with the Chairman of the DSB and the Chairman of the relevant Council or Committee, shall determine the composition of the panel by appointing the panelists whom the Director-General considers most appropriate in accordance with any relevant special or additional rules or procedures of the covered agreement or covered agreements which are at issue in the dispute, after consulting with the parties to the dispute. The Chairman of the DSB shall inform the Members of the composition of the panel thus formed no later than 10 days after the date the Chairman receives such a request."

1.6.
On 30 November 2007, the Director-General composed the Panel as follows:

Chairperson: Mr. Felipe Jaramillo

Members: Ms Usha Dwarka-Canabady

Mr. Scott Gallacher2

1.7.
India, Japan, Korea, Mexico, Norway, Chinese Taipei and Thailand reserved their rights to participate in the Panel proceedings as third parties.
1.8.
The Panel met with the parties to the dispute on 9-10 April 2008. The Panel met with the third parties on 10 April 2008.
1.9.
The Panel submitted its interim report to the parties on 12 August 2008 and submitted its final report to the parties on 10 October 2008.

II. BACKGROUND

A. INTRODUCTION

2.1.
This dispute concerns the implementation by the United States of the DSB's recommendations and rulings in US – Zeroing (EC), the original dispute. The report of the panel in the original dispute was circulated to Members on 31 October 2005; the report of the Appellate Body was circulated to Members on 18 April 2006. On 9 May 2006, the DSB adopted the report of the Appellate Body and the report of the original panel, as modified by the Report of the Appellate Body. Pursuant to Article 21.3(b) of the DSU, the "reasonable period of time" for the US to implement the recommendations and rulings of the DSB was set, by agreement of the parties, for a period of 11 months expiring on 9 April 2007.3
2.2.
The dispute before the original panel concerned the use, by the United States Department of Commerce ("USDOC"), of "zeroing" when determining margins of dumping in original investigations, administrative (assessment) reviews, new shipper reviews, changed circumstances review, and sunset reviews.

B. THE US ANTI-DUMPING SYSTEM

2.3.
At issue, in both the original dispute and in this compliance dispute, is the use of "zeroing" in the calculation of margins of dumping in the context of the imposition, assessment and collection, by the United States, of anti-dumping duties. The US system for the imposition, assessment and collection of anti-dumping duties can be described as follows.4

1. Original investigations

2.4.
In order to determine whether the imposition of anti-dumping measures on known exporters of a product under consideration may be justified, the United States examines whether dumping existed during a given period of investigation. This determination is made by the United States Department of Commerce ("USDOC") and is published in a Notice of Final Determination of Sales at Less Than Fair Value. The Notice of Final Determination of Sales at Less Than Fair Value sets out the USDOC's assessment of the existence and level of dumping. The United States International Trade Commission ("USITC") then determines whether the relevant United States industry was injured by reason of the dumped imports. When the USDOC finds dumping and the USITC finds that dumping caused injury to the domestic industry, the USDOC issues a Notice of Antidumping Duty Order imposing final measures, including a cash deposit rate equivalent to the margin of dumping calculated for each known exporter. The Anti-Dumping Order provides the United States with the authority to require cash deposits at the time of importation and subsequently assess anti-dumping duties.5

2. Administrative reviews

2.5.
Once an Anti-Dumping Order is in place, the United States will assess the liability for anti-dumping duties on specific entries of the subject product by individual importers for a specified period of time on a retrospective basis. Under this system, an anti-dumping duty liability attaches at the time of entry, but duties are not actually assessed at that time. Rather, the United States collects security in the form of a cash deposit at the time of entry, and determines the amount of duties due on the entry at a later date. Once a year (during the anniversary month of the Order) interested parties may request an "administrative review" to determine the amount of duties – if any – owed on entries made during the previous year.6 The amount of anti-dumping duties owed by each individual importer (the assessment rate) is calculated on the basis of a comparison of each individual import to a contemporaneous average normal value. The total amount of dumping associated with each importer is then aggregated and expressed as a percentage of that importer's imports into the United States. This assessment rate is then applied to all imports by that importer during the period reviewed. The amount of dumping found on all imports from a given exporter (regardless of the importer) is also used to derive a new cash deposit rate that applies on future entries from that exporter going forward. If no review is requested, the cash deposits made on the entries during the previous year are automatically assessed as the final duties. The final anti-dumping duty liability for past entries and the new cash deposit rate for future entries is calculated by the USDOC and published in a Notice of Final Results of Antidumping Duty Administrative Reviews.
2.6.
When assessing an importer's final liability for paying anti-dumping duties and any future cash deposit rate, the United States applies a methodology that has been referred to as "simple zeroing": When comparing a weighted-average normal value with the price of an individual export transaction, the amount by which the normal value exceeds the export price is considered to be the "dumped" amount for that export transaction. If the export price exceeds normal value, the result of that particular comparison is considered to be zero. The total amount of dumping for each importer is calculated by aggregating the results of each comparison for which the average normal value exceeds the export price. (In other words, while the value of all export transactions is included in the denominator of the fraction used to calculate the importer's liability, the results of the comparisons for which export prices exceed the average normal value are excluded from the numerator of that fraction).
2.7.
Following the publication of the results of an administrative review, the USDOC communicates the results of its determination to US Customs and Border Protection ("USCBP") by issuing what are referred to as "assessment instructions". The instructions advise the USCBP of the "assessment rate", i.e., the final anti-dumping duty to be collected from a given importer. The USCBP then instructs the US ports of entries to "liquidate" the relevant entries of subject imports at the established rates.7

3. Sunset reviews

2.8.
Five years after publication of an anti-dumping duty order, the USDOC and the USITC conduct a "sunset review" to determine respectively whether revocation of the order would be likely to lead to a continuation or recurrence of dumping, and the continuation or recurrence of material injury.
2.9.
The order is revoked unless both the USDOC and the USITC make affirmative "likelihood" determinations.

C. FINDINGS BY THE PANEL AND THE APPELLATE BODY IN THE ORIGINAL DISPUTE

1. Panel

2.10.
The European Communities, in the original dispute, made "as applied" claims with respect to the use of zeroing, by the USDOC, in the calculation of dumping margins in 15 original investigations and 16 administrative reviews concerning products from the European Communities. The European Communities also made "as such" claims with respect to a number of US measures concerning the use of zeroing by the USDOC in the context of original investigations, administrative reviews, new shipper reviews, changed circumstances reviews, and sunset reviews.

(a) "As applied" claims – model zeroing in original investigations

2.11.
The European Communities claimed that the United States acted inconsistently with its obligations under the Anti-Dumping Agreement and the GATT 1994 in 15 original AD investigations8 because the USDOC, when calculating the weighted average dumping margin for exporters, performed "model zeroing". The European Communities claimed that the US application of model zeroing in the original investigations at issue violated Articles 1, 2.4, 2.4.2, 3.1, 3.2, 3.5, 5.8, 9.3, and 18.4 of the Agreement on implementation of Article VI of the GATT 1994 (the "Anti-Dumping Agreement"), Articles VI:1 and VI:2 of the GATT 1994; and Article XVI:4 of the WTO Agreement. The panel concluded that the United States had acted inconsistently with Article 2.4.2 of the Anti-Dumping Agreement with respect to the use of zeroing in these original investigations but declined to make additional findings under the other provisions invoked by the European Communities.9

(b) "As applied" claims – zeroing in administrative reviews

2.12.
The European Communities also claimed, before the original panel, that the United States acted inconsistently with its obligations under Articles 2.4, 2.4.2, 9.3, 11.1, 11.2 and 18.4 of the Anti-Dumping Agreement, Articles VI:1 and VI:2 of the GATT 1994 and Article XVI:4 of the WTO Agreement as a consequence of comparing a weighted normal value with individual export transactions, without explanation or justification, and the use of zeroing in 16 periodic reviews ("administrative reviews")10 proceedings in which the USDOC had used zeroing in the context of weighted average-to-transaction ("simple zeroing"). The original panel rejected all of the EC "as applied" claims with respect to the 16 administrative reviews at issue.11

(c) "As such" claims

2.13.
The European Communities made "as such" claims against the "Standard Zeroing Procedures (or the US practice or methodology of zeroing)"12 and various sections of the United States Tariff Act of 1930 and of the USDOC Regulations with respect to the US use of zeroing in (i) original investigations, (ii) administrative reviews, and (iii) new shippers reviews, changed circumstances reviews, and sunset reviews.
2.14.
The original panel found that the US "zeroing methodology" is a norm which could be challenged in WTO dispute settlement procedures. It found that this norm, as it relates to original investigations is, as such, inconsistent with Article 2.4.2 of the Anti-Dumping Agreement but found it unnecessary to make findings under the other provisions cited by the European Communities (Articles 2.4, 2.4.2, 5.8, 9.3, 1 and 18.4 of the Anti-Dumping Agreement; Articles VI:1 and VI:2 of the GATT 1994; and Article XVI:4 of the WTO Agreement).13 The panel found that the sections of the Tariff Act challenged by the European Communities (Sections 771(35)(A) and (B), 731 and 777(A)(d)) were not as such inconsistent with Articles 2.4, 2.4.2, 5.8, 9.3, 1 and 18.4 of the Anti-Dumping Agreement, Articles VI:1 and VI:2 of the GATT 1994 and Article XVI:4 of the WTO Agreement with respect to the calculation of dumping margins in original investigations.14
2.15.
The original panel rejected the EC claims in respect of administrative reviews. The panel considered the EC claims in this respect to be dependent upon a finding of violation of Articles 2.4 and 2.4.2 and on an interpretation of these provisions as prohibiting zeroing and the use of an "asymmetrical comparison" of export price and normal value, which the panel had rejected in its analysis of the EC "as applied" claims with respect to administrative reviews.15 The panel rejected the EC's "as such" claims with respect to new shipper reviews, changed circumstances reviews and sunset reviews on similar grounds.16

(d) Recommendation

2.16.
The panel recommended that the Dispute Settlement Body request the United States to bring its measures into conformity with its obligations under the Anti-Dumping Agreement.17

(e) Dissenting opinion by one panelist

2.17.
One panelist wrote a dissenting opinion. That panelist concurred in the panel's findings that model zeroing in original investigations is prohibited by Article 2.4.2 of the Anti-Dumping Agreement, that the Sections of the US Tariff Act challenged by the European Communities are not inconsistent with the provisions of the Anti-Dumping Agreement, GATT 1994 and WTO Agreement invoked by the European Communities and that the US zeroing methodology, as it relates to original investigations, is a norm which is, as such, inconsistent with Article 2.4.2 of the Anti-Dumping Agreement, but disagreed with all other findings of the panel.18 In particular, the dissenting panelist would have accepted the EC claims (i) that simple and model zeroing are inconsistent with Articles 2.4 and 2.4.2 of the Anti-Dumping Agreement in assessment proceedings (except where there is targeted dumping); (ii) that Section 351,414 (c)(2) of the US Regulations, which foresees simple zeroing in review proceedings, is inconsistent with Articles 2.4 and 2.4.2 of the Anti-Dumping Agreement; and (iii) that the US zeroing methodology used in assessment and review proceedings is inconsistent with Articles 2.4 and 2.4.2 of the Anti-Dumping Agreement.19

2. Appellate Body

(a) "As applied" claims – simple zeroing in administrative reviews

2.18.
Following an appeal by the European Communities, the Appellate Body reversed the panel's finding that the United States had not acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 with respect to administrative reviews. The Appellate Body found, instead, that the United States had acted inconsistently with these provisions.20 The Appellate Body declared the panel's finding on Article VI:1 of the GATT 1994 "moot, and of no legal effect".21 The Appellate Body did not find it necessary to rule on whether the US acted inconsistently with the first sentence of Article 2.4 of the Anti-Dumping Agreement ("fair comparison" requirement"), declared "moot and of no legal effect" the panel's finding in this respect22, upheld the panel's finding that zeroing is not an impermissible allowance or adjustment (Article 2.4, third to fifth sentences),23 declined to rule on a conditional appeal of the European Communities under Article 2.4.2 Anti-Dumping Agreement24, upheld the panel's finding that the United States had not acted inconsistently with Articles 11.1 and 11.2 of the Anti-Dumping Agreement25, and considered that it was not necessary to rule on whether the zeroing methodology, as applied in the administrative reviews at issue, was also inconsistent with Articles 1 and 18.4 of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement.26

(b) Zeroing "as such" in original investigations

2.19.
The Appellate Body upheld the original panel's finding (albeit for reasons different from those set out by the panel) that the zeroing methodology used by the USDOC in original investigations in which the weighted-average to weighted-average method is used could be challenged, as such, in WTO dispute settlement and that it was, as such, inconsistent with Article 2.4.2 of the Agreement.27

(c) Zeroing "as such" in administrative reviews

2.20.
The European Communities appealed the original panel's findings that the zeroing methodology used by the United States in administrative reviews is not inconsistent, as such, with certain provisions of the Anti-Dumping Agreement, the GATT 1994, and the WTO Agreement. The Appellate Body declared "moot, and of no legal effect", the panel's findings in this respect. The Appellate Body considered, however, that it could not "complete the analysis", i.e., could not make a finding as to whether the zeroing methodology, as it relates to administrative reviews, was inconsistent with these provisions.28
2.21.
The Appellate Body also rejected a conditional appeal by the European Communities of the panel's conclusions or the panel's exercise of judicial economy regarding the Standard Zeroing Procedures (i.e., lines of computer code). The European Communities had requested the Appellate Body to find that the Procedures were inconsistent, as such, with the provisions invoked by the European Communities in its "as such" claims concerning the use of zeroing in administrative reviews, new shippers reviews, changed circumstances review, and sunset reviews. The Appellate Body found that the Procedures were not, per se, a measure that could be challenged and, as a consequence, that they could not be either WTO-consistent or inconsistent. It therefore declared "moot, and of no legal effect, the panel's findings that the Standard Zeroing Procedures were not inconsistent, as such, with the provisions of the Anti-Dumping Agreement, the GATT 1994 and the WTO Agreement invoked by the European Communities.29

(d) "As such" claims – USDOC Regulations

2.22.
The European Communities appealed the panel's finding that Section 351,414(c)(2) of the USDOC Regulations was not inconsistent, as such, with Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3 and 18.4 of the Anti-Dumping Agreement, Articles VI:1 and VI:2 of GATT 1994, and Article XVI:4 of the WTO Agreement. The Appellate Body declared "moot, and of no legal effect" the panel's finding that Section 351,414(c)(2) is not inconsistent with these provisions. It refrained from completing the legal analysis in this respect, i.e., from deciding whether the section of the USDOC Regulations at issue was indeed inconsistent with the provisions relied upon by the European Communities.30

(e) Recommendation

2.23.
The Appellate Body recommended that the DSB request the United States to bring its measures, which had been found in its Report, and in the report of the original panel (as modified by the Appellate Body Report), to be inconsistent with the Anti-Dumping Agreement and with the GATT 1994, into conformity with its obligations under those Agreements.

3. DS B recommendations and rulings

2.24.
In summary, the findings of inconsistency which were adopted by the DSB are as follows:

(a) Zeroing, "as applied" in original investigations: The original panel's finding that the United States acted inconsistently with Article 2.4.2 of the Anti-Dumping Agreement as a consequence of the USDOC performing "model zeroing" in the 15 original investigations at issue in the original dispute.31

(b) Zeroing "as such" in original investigations): The original panel's finding (upheld by the Appellate Body on a different reasoning) that the US "zeroing methodology" manifested in the "Standard Zeroing Procedures" (line of computer code) as it relates original investigations, is, as such, inconsistent with Article 2.4.2 of the Anti-Dumping Agreement.32

(c) Zeroing "as applied" administrative reviews: The Appellate Body's finding that the United States acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 when it zeroed (simple zeroing) in the 16 administrative reviews at issue in the original dispute.33

2.25.
The DSB recommended that the United States bring its measures, which had been found in the Appellate Body Report, and in the Panel Report as modified by the Appellate Body Report, to be inconsistent with the Anti-Dumping Agreement and with the GATT 1994, into conformity with its obligations under those Agreements.
2.26.
Thus, the DSB adopted no findings and made no recommendation with respect to "as such" claims by the European Communities with respect to administrative reviews or other types of reviews (including sunset reviews).

III. FACTUAL ASPECTS

A. RELEVANT DEVELOPMENTS CONCERNING THE US MEASURES AT ISSUE IN THE ORIGINAL DISPUTE

3.1.
The following developments with respect to the measures at issue in the original dispute are relevant to the Panel's examination of the US implementation of the DSB recommendations and rulings:

With respect to the original investigations at issue in the original dispute:34

(a) On 27 December 2006, the United States announced that it would abandon "model zeroing" in original AD investigations in which the weighted average-to-weighted average comparison methodology is used. The modification became effective on 22 February 2007 and concerned all pending and future original investigations as of that date.35

(b) On 1 March 2007, the USDOC initiated proceedings pursuant to Section 129 of the Uruguay Round Agreements Act covering twelve of the fifteen original antidumping investigations at issue in the original dispute.3637 The remaining three AD orders had been previously revoked.38 In the Section 129 determinations, the USDOC recalculated, without zeroing, the relevant margins of dumping by applying the modification of its calculation methodology announced in December 2006. The USDOC issued its determinations with respect to eleven of the Section 129 determinations on 9 April 2007. These eleven Section 129 determinations became effective on 23 April 2007.39 The results in the last Section 129 determination were issued on 20 August 2007 and became effective on 31 August 2007.40 As a result of these recalculations:

(i) Two original AD orders were revoked (as a result of the recalculated margins being zero or de minimis for all involved producers/exporters);41

(ii) Ten original AD orders42 were partially revoked (revoked with respect to certain companies for which the USDOC found zero or de minimis margins in the Section 129 determination) whereas for other companies, duties were either reduced or increased as a result of the recalculation. The recalculated margins of dumping established in the Section 129 determinations applied (as the new cash deposit rate) with respect to unliquidated entries (imports) made on or after 23 April 2007 (31 August 2007 with respect to case 11).43

(c) In addition, the USDOC issued in the ordinary course a number of administrative review determinations with respect to AD orders concerned in the original investigations that were at issue in the original dispute. The USDOC continued to calculate margins of dumping in these administrative reviews by using zeroing (simple zeroing).

With respect to the administrative reviews at issue in the original dispute:

(d) With respect to the sixteen administrative review determinations at issue in the original dispute, the United States considered that the cash deposit rates established as a result of each of those reviews – with the exception of one company – were no longer in effect because they had been superseded by subsequent administrative reviews: consequently, no further action was taken by the United States in order to implement the DSB recommendations and rulings in respect of these administrative review determinations.44

Sunset review determinations:

(e) Following negative sunset review determinations by the USITC (no likelihood of continuation or recurrence of injury), the USDOC revoked the AD orders in 4 cases, effective 7 March 2007 (cash deposits on imports made on or after that effective date were to be refunded and the concerned imports would not be subject to a final assessment of AD duties).45 Other sunset review determinations adopted with respect to AD orders concerned in the original investigations at issue in the original dispute or in the same USDOC investigations for which administrative reviews were challenged in the original dispute resulted in the continuation of the relevant AD order.46

B. MEASURES AT ISSUE

3.2.
The measures at issue in this dispute are, according to the European Communities, the following:

(a) Certain of the Section 129 determinations adopted by the United States to implement the rulings and recommendations of the DSB.47

(b) Subsequent administrative reviews, changed circumstances reviews and sunset reviews adopted in the "cases" at issue in some of the 15 original investigation determinations and 16 administrative review determinations challenged in the original dispute (as well as assessment instructions issued by the USDOC to the USCBP). These reviews have, in the context of this dispute, been referred to as "subsequent reviews" (as opposed to the administrative reviews that were at issue in the original dispute).48

(c) Liquidation of duties by the USCBP following instructions issued by the USDOC.

(d) Related omissions and deficiencies in the US compliance with the DSB's recommendations and rulings.

3.3.
The United States argues, as part of its request for preliminary rulings, that certain of these measures – and in particular, each of the "subsequent reviews" and assessment instructions – do not fall within the Panel's terms of reference. The Panel addresses the US objection in this respect below, in Section VIII.D.

IV. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS

A. EUROPEAN COMMUNITIES

4.1.
The European Communities requests the Panel to make the following findings:

(a) the United States violated Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement when extending the measures contained in the original dispute pursuant to sunset review proceedings relying on margin of duties calculated with zeroing;

(b) the United States has not complied with the DSB's recommendations in the original proceeding, since it continues to collect anti-dumping duties and establish new cash deposit rates based on zeroing with respect to the original investigations and administrative reviews challenged in the original dispute;

(c) the United States remains in violation of Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994, since it still collects anti-dumping duties calculated with zeroing with respect to measures challenged in the original dispute (including the measures listed in the Annex to the Panel Request and any other subsequent measures);

(d) the United States has not complied with the DSB's recommendations in the original proceeding, since it has failed to fully revoke the original investigation orders contested in the original dispute;

(e) the United States has not complied with the DSB's recommendations in the original proceeding, since the 16 administrative review investigations covered in the original dispute have not been superseded (i.e.,the United States still collects duties based on the dumping margins found in those proceedings with zeroing, and the United States has also relied on those margins for the determination of likelihood of recurrence of dumping in sunset review proceedings);

(f) the United States violated Articles 21.3 and 21.3(b) of the DSU, since it did not take any measure to comply with respect to the "as applied" measures covered in the original dispute between 9 April and 23 April/31 August 2007;

(g) the United States violated Articles 2, 5.8, 6.8, 9.3, 11.1 and 11.2 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 when making an error in the calculation of the unit value and then failing to have it removed pursuant to the Section 129 Determination in case 11;

(h) the United States violated Article 6.8, Annex II and Article 9.4 of the Anti-Dumping Agreement when using a weighted average of exporters with zero/de minimis rates and adverse facts available to calculate the "all others" rates pursuant to the Section 129 determinations in cases 2, 4 and 5; and

(i) the United States violated Articles 3.1, 3.2, 3.5 and 5.8 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994 when failing to reassess the injury in light of the new volume of non-dumped imports pursuant to the Section 129 Determinations in cases 2, 3, 4 and 5 of the Annex to the Panel Request.49

4.2.
The European Communities also requests the Panel to find that its composition was not consistent with Articles 21.5 and 8.3 of the DSU.
4.3.
Further, the European Communities considers that, since the United States has failed to comply with its obligations, the original recommendations of the DSB remain in effect, and apply to the full extent of the findings requested above. The European Communities requests the Panel to confirm the original panel's recommendation, pursuant to Article 19 of the DSU, that the United States take the steps necessary to bring its measures into conformity with the cited WTO provisions.
4.4.
The European Communities also asks the Panel to make suggestions as to how the United States should bring its measures in conformity with its obligations. The European Communities asks the Panel to suggest that, in order to comply with the DSB's recommendations, the United States cease using zeroing when calculating dumping margins in any anti-dumping proceeding with respect to the measures challenged in the original dispute and any other subsequent amendments of those.50

B. UNITED STATES

4.5.
The United States requests that the Panel reject the EC claims and find that it has met its obligations to bring the measures found to be inconsistent with the Anti-Dumping Agreement and the GATT 1994 into conformity and has, therefore, complied with the recommendations and rulings of the DSB. The United States asks the Panel to decline to make the suggestion requested by the European Communities.

V. ARGUMENTS OF THE PARTIES

5.1.
The arguments of the parties are set out in their written and oral submissions to the Panel, and in their answers to questions. The parties' arguments, based on the summaries submitted by them pursuant to paragraph 10 of the Panel's working procedures, are set forth in this section. The full non-confidential text of the submissions of the European Communities can be downloaded from the EC's web site.51 The full non-confidential text of the United States submissions can be downloaded from the web site of the Office of the United States Trade Representative.52

A. US REQUEST FOR PRELIMINARY RULINGS

1. United States

5.2.
The United States requests preliminary rulings concerning the EC's apparent effort to include certain determinations within the terms of reference of this proceeding, including certain administrative reviews and sunset reviews that are not measures taken to comply with the recommendations and rulings of the DSB in the original proceeding. A number of these measures also were not identified in the EC's Article 21.5 panel request.53 The United States observes in this context that Article 21.5 of the DSU applies when there is a disagreement as to the existence or consistency with a covered agreement of a measure taken to comply with recommendations and rulings of the DSB and that the scope of an Article 21.5 compliance panel proceeding is inherently limited – it may only examine a measure that is taken to comply, and then only if that measure is specified in the request for the establishment of a panel.54
5.3.
The only measures that were the subject of the DSB recommendations and rulings were the investigations and administrative reviews listed in the annexes to the EC's original panel request. The EC pursued a challenge against zeroing in administrative reviews "as such" but did not prevail. Upon reviewing the EC's first submission, the United States notes that the EC appears to seek to include within the terms of reference determinations that are not properly within the terms of reference for two reasons: first, because they were not identified in the EC's Article 21.5 panel request, as required by Article 6.2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU"), and second, because those determinations were not subject to the recommendations and rulings of the DSB, nor are they measures taken to comply.55
5.4.
Article 6.2 of the DSU provides that a panel request shall "identify the specific measures at issue." The United States submits that the key passage in the EC's Article 21.5 request is paragraph 7. This paragraph plainly states that the measures at issue are the investigations and administrative review determinations from the original proceeding. In its submission, however, the EC appears to take a different approach. The EC seeks to transform the "reviews" referenced in its panel request as separate and distinct from the "measures at issue" into "measures" within the terms of reference. Under Article 6.2, however, the EC was obliged, in its panel request, to "identify the specific measures at issue." The only measures identified as "measures in question" were the investigations and administrative reviews from the original proceeding. Therefore, any "measures" other than those reviews are not "measures" subject to findings in this proceeding.56
5.5.
For the foregoing reasons, the United States requests that the Panel reject the EC's attempt to use its first submission to expand the terms of reference beyond the specific measures identified in its panel request, i.e.,the 16 administrative reviews in the original proceeding.57 The EC's attempt to use its submission to expand the measures within the terms of reference of this proceeding is flawed for a second reason. The scope of an Article 21.5 proceeding is limited to the issue of the existence or consistency of measures taken to comply.58 Pursuant to Article 6.2 of the DSU, in its request for the establishment of a panel in the original proceeding, the EC was required to "identify the specific measures at issue" (emphasis added). That identification in turn informs the question of what is a "measure taken to comply."59 The United States argues that there must be an express link between the alleged measures taken to comply and the DSB's recommendations and rulings. Accordingly, in assessing whether a challenged measure is a measure taken to comply, the Panel must first look to the DSB's recommendations and rulings. Nonetheless, not every measure that has some connection with, or that could have some impact upon a measure taken to comply may be scrutinized in an Article 21.5 proceeding. Rather, such measures falling within the competence of an Article 21.5 panel are those "taken in the direction of, or for the purpose of achieving compliance [with the DSB's recommendations and rulings]."60 The United States argues that here, however, the EC seeks to expand the terms of reference beyond the inquiry into the existence or consistency of measures taken to comply. Precisely what the EC seeks to include is something of a moving target.61
5.6.
The United States recalls that the EC challenged 16 administrative reviews, and the Appellate Body concluded that those reviews were inconsistent with the Antidumping Agreement. Thus, those 16 reviews were the subject of the DSB recommendations and rulings. None of the other "measures" the EC seeks to include in these proceedings – such as subsequent reviews or assessment instructions – was the basis for a DSB recommendation or ruling.62
5.7.
The United States notes at the outset that proceedings under Article 21.5 address disagreements "as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings [of the DSB]."63 A complaining Member may not use a compliance proceeding to challenge measures that it could have challenged in the original panel proceeding but did not. Nor may a complaining Member use Article 21.5 to challenge measures that are not measures taken to comply. This is because Members only agreed to the truncated, expedited procedures under Article 21.5 in the specific case involving a measure taken to comply, and did not agree to have these different dispute settlement procedures used in the case of measures not taken to comply.64 The United States observes in this context that to identify the proper scope of any Article 21.5 proceeding, the appropriate starting point is the DSB's recommendations and rulings.65 A panel composed under Article 21.5, therefore, begins with the recommendations and rulings of the DSB, and examines measures that a Member has taken pursuant to those recommendations and rulings to determine if that Member is in compliance.66 In the US view, however, the EC attempts to expand the scope of these proceedings by incorporating claims regarding measures entirely distinct from those measures it originally challenged in its "as applied" claims and which were not measures taken to comply.67
5.8.
The United States recalls that in the original proceeding, the EC prevailed with respect to its "as applied" claims involving 15 investigations and 16 administrative reviews. The EC did not prevail with respect to its "as such" claims.68 According to the DSB recommendations and rulings in this dispute, 15 determinations by the US Department of Commerce ("Commerce") in antidumping investigations were found inconsistent with a covered agreement. The recommendations and rulings also include "as applied" findings of a breach with respect to 16 Commerce determinations in administrative reviews. The original panel and the Appellate Body declined to make findings concerning the EC's "as such" claim against zeroing in administrative reviews.69 In the US view, it seems clear, then, that the questions before this compliance panel pertain to US compliance with the findings concerning those specific investigations and reviews.70 Thus, the DSB's recommendations and rulings were limited to "as applied" findings.71 The United States maintains that it has removed the border measures in question and that it has therefore complied with the recommendations and rulings of the DSB.72 Therefore, this Panel should reject the EC's claims of non‑compliance and its effort to enlarge the obligations of the United States.73
5.9.
The United States next notes that the EC has relied heavily on Softwood Lumber for the proposition that these "subsequent reviews" have a sufficient "nexus" to the 15 investigations and 16 administrative reviews found to be inconsistent "as applied" in the original proceeding. According to the United States, the EC's reliance is misplaced for factual and legal reasons.74 First, the United States maintains that the assessment reviews covered distinct sales during distinct periods of time and could address different companies. As an illustration, the United States calls the Panel's attention to the cases concerning pasta from Italy. In the investigation, Commerce examined the sales of seven different Italian pasta companies. In the assessment review for the 2001‑02 period, Commerce examined a total of ten companies, nine of which had not been examined in the original investigation. Similarly, in the assessment review for the 2002‑03 period, Commerce reviewed eight companies, none of which was examined in the original investigation.75
5.10.
Furthermore, the United States notes that the legal and factual distinctions between the two types of proceedings with respect to the issue of zeroing are more relevant here than was the case in Softwood Lumber. There, the issue was the pass‑through of subsidies – and the legal basis for the panel's consideration did not differ as between the investigation and the administrative review. With respect to the issue of zeroing, however, that is not the case. Even the EC implicitly recognized this by referring to "model zeroing" in investigations and "simple zeroing" in reviews. This distinction flows through to the legal bases for the findings against zeroing – which rely significantly on the text of Article 2.4.2 and, in particular, the phrase "all comparable export transactions" in the context of investigations. In the context of reviews, however, that textual basis is absent and the Appellate Body has, instead, relied on the term "product" and the non-textual phrase "product as a whole" to find that a margin of dumping cannot be calculated in a proceeding using zeroing. Given the distinctions in the factual and legal basis for the findings on investigations as compared to reviews, it would be inappropriate to find that there is a sufficiently close nexus to address the subsequent reviews in an Article 21.5 proceeding.76
5.11.
Moreover, as the United States noted, to conclude that one administrative review always has a nexus to the previous administrative review would run counter to the Appellate Body's admonition in Softwood Lumber that administrative reviews are not per se measures taken to comply. One administrative review routinely succeeds another. To conclude on that basis that subsequent reviews are measures taken to comply would undermine the Appellate Body's express limitation of its findings in this dispute to the measures "as applied." It would also contradict the Appellate Body's view that Article 21.5 proceedings "logically must be narrower" than the original proceedings.77 Were the EC to prevail on its claims in this regard, the scope of these proceedings that the matter covered would be nearly 3 times greater than those covered by the original proceedings.78
5.12.
The United States reiterates that Commerce has revoked the antidumping duty orders relating to three of the administrative reviews in their entirety. Moreover, with respect to another antidumping duty order, Commerce has now excluded two of the companies that were the subject of the EC's "as applied" challenge from that antidumping duty order.79 Notwithstanding these revocations, and the fact that the EC accepts that relief is prospective only, the EC nevertheless contends that the United States has failed to bring its measures into compliance.80
5.13.
The United States observes that the EC advances an argument that the United States has failed to bring its measures into compliance by challenging an additional 54 determinations, identified in the annex to its Article 21.5 panel request ("the EC's annex"), and made subsequent to the 31 determinations it originally challenged in its "as applied" claims, asserting that these subsequent determinations were part of the original dispute, are measures taken to comply, or somehow constitute "omissions."81
5.14.
The United States asserts that there are several facts that expose the hollowness of the EC's argument concerning the additional 54 determinations, and, highlight the main reasons why these determinations are not within this Panel's terms of reference.82 As an initial matter, the United States notes that in its written submissions, it has shown that the EC did not identify these "subsequent reviews" as measures in its Article 21.5 panel request. Therefore, they are not within the Panel's terms of reference.83 Moreover, contrary to the EC's assertions, these subsequent determinations were not part of the original dispute because they were not identified in the EC's original panel request. The United States submits that neither the original panel nor the Appellate Body made any findings with respect to these determinations, noting that some of these determinations did not even exist when the EC made its original panel request.84
5.15.
In addition, the United States argues that these determinations cannot be considered "amendments" to the 31 determinations originally challenged. In this connection, the United States clarifies that Commerce amends its determinations to correct a ministerial error, or as a result of litigation. The EC understood this, and specifically identified in its original panel request those determinations that had been amended. In this context, the term "amendments" specifically refers to those corrected Commerce determinations. The United States argues that the term "amendments" does not refer to the 54 additional determinations identified in the EC's annex, which cover distinct periods of time and, in some cases, distinct companies and which, therefore, are separate and distinct from the 31 determinations originally challenged by the EC.85
5.16.
Turning to the issue of whether these additional determinations are "measures taken to comply," the United States observes that the EC relies on Softwood Lumber to support its argument. However, the United States considers that it is important to note that in that dispute, the Appellate Body cautioned that "not... every assessment review will necessarily fall within the jurisdiction of an Article 21.5 panel." Indeed, "[a]s a whole, Article 21 deals with events subsequent to the DSB's adoption of recommendations and rulings in a particular dispute." And the Softwood Lumber dispute indeed involved a determination that was made after the DSB had adopted its recommendations and rulings and that was published very close in time to the measure that both parties agreed was a measure taken to comply. In that dispute, the Appellate Body first cautioned that there was no finding that an administrative review is per se a "measure taken to comply," but rather the analysis was more nuanced. Furthermore, in concluding that an aspect of an administrative review did come within the terms of reference of an Article 21.5 proceeding, the Appellate Body found significant both this fact of timing as well as the fact that the responding Member acknowledged that the determination at issue was made "'in view of' the recommendations and rulings of the DSB."86
5.17.
The United States argues that even if it accepts the principle that determinations made "in view of" recommendations and rulings can be brought within the terms of reference of an Article 21.5 proceeding, it cannot be said in this dispute that the 54 additional determinations were made "in view of" the DSB's recommendations and rulings. Of the 54 additional determinations, 16 are determinations in sunset reviews. On this point, the United States contends that the EC's original "as applied" claims did not include any challenges to determinations in sunset reviews. Consequently, neither the original panel, nor the Appellate Body, made any findings in this dispute, whether "as such" or "as applied," with respect to sunset reviews. These sunset reviews are, therefore, not part of the terms of reference.87
5.18.
Moreover, the United States submits that in 11 of the sunset reviews, Commerce issued its determination regarding the likelihood of a continuation or recurrence of dumping before the DSB had even adopted its recommendations and rulings in this dispute. The United States notes that four resulted in the revocation of the antidumping orders. In the one remaining sunset review determination, the interested parties did not raise, and Commerce made no mention of, the issue of non-dumped sales. Thus, this determination could not have been made "in view of" the DSB's recommendations and rulings.88 Two of the additional determinations identified by the EC were made in changed circumstances reviews. The United States submits that Commerce made both of these determinations before the adoption of the DSB's recommendations and rulings. Moreover, both determinations addressed whether one company was the successor in interest of a second company, and was therefore entitled to the cash deposit rate already established for that second company. Commerce did not recalculate any margins of dumping in these two changed circumstances reviews. Neither of these determinations, therefore, can be said to have been made "in view of" the DSB's recommendations and rulings, which concerned Commerce's treatment of non-dumped sales.89 The United States further notes that the remaining 36 determinations were made in administrative reviews and that Commerce made determinations in 26 of these reviews before the DSB adopted its recommendations and rulings.90 Of the remaining 10 determinations, 4 gave no indication that Commerce's treatment of non-dumped sales was an issue in the review. Another 4 were made before the end of the reasonable period of time. The United States clarifies that in those determinations, Commerce made clear that the determinations were not being issued in view of the recommendations and rulings. Thus, the factual predicate in Softwood Lumber – the Appellate Body's conclusion that the United States acknowledged that the administrative review was conducted "in view of" the recommendations and rulings – does not exist here.91
5.19.
The United States explains that in one of the two remaining determinations, the 2005-2006 administrative review of Stainless Steel Bar from the United Kingdom, no party specifically raised the issue of non-dumped sales. However, one party raised the issue of the recalculation of the "all others" rate from the Section 129 determination. In response, Commerce stated that the recalculation of the all others rate from the Section 129 determination was not challengeable in the 2005-2006 administrative review. Commerce further noted that because the new all others rate did not take effect until 23 April 2007, any imports covered by this review that were subject to an all others rate were subject to the all others rate in existence before the recalculation. Thus, again, this determination was not made "in view of" the DSB's recommendations and rulings.92
5.20.
In respect of the only one outstanding the determination in the 2004-2005 administrative review of Hot-Rolled Steel from the Netherlands, the United States observes as an initial matter, that the EC's original "as applied" challenge covered only Commerce's determination in the investigation of Hot-Rolled Steel from the Netherlands, and not any determinations from subsequent administrative reviews of the order. Commerce complied with the DSB's recommendations and rulings in the Section 129 determination covering this investigation when it granted offsets for non-dumped sales in the recalculation of the margin of dumping. Indeed, that Section 129 determination resulted in the revocation of the antidumping order on Hot-Rolled Steel from the Netherlands with respect to all imports on or after the date of revocation. The United States argues, therefore, that it had no further obligation with respect to the Appellate Body's specific "as applied" finding, which was made only with respect to that investigation determination.93 Moreover, in the US view, Commerce's determination in the 2004-2005 review cannot be said to have been made "in view of" the DSB's recommendations and rulings. In addressing the issue of non-dumped sales, Commerce stated, "With respect to the specific administrative reviews at issue in [the US – Zeroing (EC)] dispute, the United States has determined that each of those reviews has been superseded by a subsequent administrative review and the challenged reviews are no longer in effect." Thus, Commerce clearly stated its position that the DSB's recommendations and rulings did not require Commerce to take any action with respect to the treatment of non-dumped sales in this particular review.94 In summary, the United States maintains that the EC has failed to show that any of these 54 subsequent determinations have the required timing and connection with the DSB's recommendations and rulings to qualify as "measures taken to comply." All of these additional determinations are outside of the terms of reference of this Panel.95
5.21.
Finally, the United States asserts that the EC's argument that these additional determinations constitute "omissions" which can be reviewed by this Panel is contradictory, because the EC is arguing simultaneously that the measures taken to comply both exist and do not exist at the same time.96
5.22.
The United States has raised serious concerns about the EC's Article 21.5 panel request. Noting that the EC dismisses its due process concerns as merely "formal," the United States finds that a disturbing position to take. The provisions in the DSU were specifically negotiated and agreed upon, and they cannot be casually dismissed whenever adherence to those provisions proves inconvenient.97 In addition, the EC's view on the mutable nature of "words" goes far to explain what the United States has found to be an ever-shifting scope of challenged measures, both in the original proceeding and here. For example, the United States understood from the EC's panel request that it was not challenging the subsequent reviews themselves, but rather was presenting them as evidence of the undermining of US measures taken to comply (that is, the EC was attempting to assert that these subsequent reviews resulted in the "non-existence" of measures taken to comply in the language of Article 21.5) in respect of the 15 investigations and 16 administrative reviews that were the subject of the DSB recommendations and rulings in the original proceeding. The United States did not consider that the subsequent reviews themselves would be transformed into "measures taken to comply," or measures that were part of the DSB recommendations and rulings, which is how the EC began to describe them in its first written submission. In the original panel request, the EC identified certain reviews "as amended." In its submissions in the original proceeding, the EC then referred to "any amendments," a term not found in the panel request except to refer to determinations amended under US law. The EC now seeks to construe the phrase "any amendments" to mean any subsequent acts relating to the original challenged measures. That is a far cry from the limited and specific use of the term "amended" in the original panel request.98
5.23.
Similarly, the United States notes that in its panel request in this proceeding, the EC specifically referred to the "measures in question" as the 15 investigations and 16 administrative reviews found to be inconsistent "as applied" in the original proceeding. Now the EC considers that the scope of the measures in this proceeding is not limited to the measures it identified as measures in its panel request, but rather extends to any of the reviews listed in the Annexes to its panel request. To be sure, a Member is not necessarily obliged to refer to the measures in question as "measures"; but when a Member expressly uses the term "measure" – a term of art referenced in Article 6.2 – to describe certain determinations, it can be reasonably inferred that not describing other determinations as "measures" has meaning, and that those determinations are in fact not measures subject to challenge in the proceeding. Under Article 6.2 of the DSU, the complaining party bears a clear obligation to identify, in its panel request, "the specific measures at issue."99 In that way, the responding Member and potential third parties are provided clear notification of the measures at issue. It is not for the responding Member to have to guess which measures are at issue, nor should the responding Member or potential third parties bear the adverse consequences of what the complaining party may later decide was an ill-advised word choice.100 The United States argues that it is evident that the EC wishes to undo the limited "as applied" findings of the Appellate Body – while accusing the United States of declining to accept those same findings unconditionally. However, these results cannot be obtained at the expense of the procedural requirements set out in the DSU, both in Article 6.2 and in Article 21. These concerns are not "merely formal" but flow from the results of the particular negotiation and agreement by WTO Members.101
5.24.
The United States also observes that the EC has stated repeatedly in this proceeding that the "words" don't really matter. The United States finds that this is a somewhat astonishing position to take in a dispute involving matters of treaty interpretation. The United States is reminded of similar views taken by Humpty Dumpty in Through the Looking Glass. "When I use a word, it means just what I choose it to mean." Alice replies, "The question is whether you can make words mean so many different things." And Humpty Dumpty responds: "The question is, which is to be master – that's all."102 The United States emphasizes that words do in fact matter – Members negotiated and agreed on specific words in the covered agreements. Complaining parties may not "choose to be master" by giving words different meanings over the course of a proceeding depending on what will net the best result. That is precisely why due process matters.103
5.25.
In summary, the United States argues that, by attempting to include these additional 54 determinations within the scope of this Article 21.5 proceeding, the EC seeks to gain the benefit of an "as such" finding where the Appellate Body expressly declined to make such a finding.104
5.26.
The United States notes that in the EC's original panel request, the EC identified determinations made by Commerce in sixteen administrative reviews, but specifically challenged particular margins in those determinations. The EC also challenged multiple reviews of the same product. Thus, in the original proceeding, the EC treated each review as a separate measure and in fact challenged specific margins within each such measure. Moreover, while the Appellate Body found that Commerce's determination of margins of dumping "as applied" in the sixteen administrative reviews was inconsistent with certain WTO obligations, the Appellate Body denied the EC's request that it find Commerce's methodology for calculating margins of dumping in administrative reviews to be "as such" inconsistent with any WTO obligations.105 This, according to the United States, is consistent with the fact that in each administrative review, Commerce examines different facts, a different time period, and a different set of transactions. Thus, in its initial panel request, the EC recognized that a determination from one administrative review is separate and distinct from a determination made in a subsequent administrative review.106
5.27.
The United States argues that the EC cannot ignore the consequences of this and cannot bring entirely new and distinct determinations concerning different periods of time into this compliance proceeding simply because those determinations involved the same subject merchandise. Rather, the scope of the DSB's "as applied" recommendations and rulings are limited to those specific determinations that the EC indicated that it was challenging in its original panel request. Anything else would, in view of the United States, be directly contrary to the fact that the DSB's recommendations and rulings were limited to these 16 administrative reviews "as applied" and explicitly did not include an "as such" recommendation or ruling.107 The United States considers that the EC apparently understood this, as it filed a second challenge to Commerce's calculation methodology in an entirely separate DSB proceeding. In the US – Zeroing (EC) II panel request, for example, the EC identifies the determination in the administrative review of Certain Pasta from Italy covering sales made by PAM from 1 July 2002 through 30 June 2003 as an "as applied" measure. This very same determination is also identified by the EC as a review in the annex to its panel request that is "related to" the "measures in question." The EC recognized that these subsequent determinations are distinct measures and not measures taken to comply with the DSB's recommendations and rulings in this dispute.108 The United States argues that further undermining the EC's contention that subsequent reviews are measures taken to comply is the EC's argument that it is, in fact, challenging the US "omissions" to take the necessary measures to comply. The EC cannot have it both ways: if the United States failed to comply by "omission," then any corresponding finding against the United States should be that a measure was not taken to comply, not that subsequent determinations are not consistent with US obligations.109
5.28.
The United States maintains that many of the distinct administrative review determinations identified by the EC in its 21.5 panel request cannot be considered measures taken to comply because they pre-date the adoption of the DSB's recommendations and rulings. "As a whole, Article 21 deals with events subsequent to the DSB's adoption of recommendations and rulings in a particular dispute." Determinations made by a Member prior to the adoption of a dispute settlement report are not taken for the purpose of achieving compliance and cannot be within the scope of an Article 21.5 proceeding.110
5.29.
The United States understands the EC to argue that the US implementation obligations with respect to the "as applied" claims extend to distinct determinations which supercede the measures described in its original panel request. To this end, the EC is attempting to use these Article 21.5 proceedings to obtain the effect of an "as such" finding that the Appellate Body expressly declined to make.111 The US recalls that the EC made an "as such" claim against Commerce's methodology for calculating margins of dumping in administrative reviews in its initial panel request. The original panel rejected this claim. The Appellate Body also declined to find that Commerce's calculation methodology in administrative reviews was inconsistent with US WTO obligations "as such." Rather, the Appellate Body limited itself to "as applied" findings concerning the sixteen Commerce determinations originally challenged by the EC.112 The United States contends, however, that the EC would have the United States recalculate the margins of dumping in any subsequent determination which happened to involve the same products that were the subject of the measures challenged in the initial panel request. That is, the EC seeks the benefit of an "as such" finding, when neither the original panel nor the Appellate Body made one in this dispute. In light of the above, the United States maintains that the panel should reject the EC's efforts.113
5.30.
In its Second Written Submission, the United States notes that the EC's response to its request for a preliminary ruling only reinforces the deficiencies in the panel request. The United States considers it is telling that the EC felt the need to include an entire section defending its view on the scope of a proceeding that it initiated – before the United States had even filed its first submission. Typically a complaining Party understands, and does not doubt, that its submission is consistent with the terms of reference in its panel request and therefore feels no need to make anticipatory assertions in that regard.114
5.31.
The United States notes the EC's contention that the "subsequent determinations" identified in the Annex to its panel request in this proceeding were part of the terms of reference of the original proceeding, that they are measures taken to comply, and that they are "omissions". For instance, not only is the EC arguing that these determinations are measures from the original proceeding as well as measures taken to comply, but the EC also argues that measures taken to comply both exist and do not exist, at the same time. These propositions are, of course, mutually contradictory, in view of the United States.115 While the United States understands why the EC has great difficulty in finding a legal theory to justify why this Panel should consider those determinations to fall within its terms of reference, and why the EC would therefore write a series of contradictory arguments in the hopes that one of them might find favour, the United States regrets that – by the rebuttal submission – the complaining party in this matter has been unable to simplify matters for the Panel.116
5.32.
The United States also regrets that the EC would resort to characterizing the US arguments in connection with the preliminary ruling request as "so patently absurd as to barely require further comment." Having articulated that view, the EC nevertheless goes on to present two pages of commentary that does not address the basic question.117 The crux of the matter, according to the United States, is simple: why would the EC elect to refer in its panel request to the determinations in the 15 investigations and 16 administrative reviews as "measures" – a term with a particular meaning in the context of Article 6.2 of the DSU – but to all other determinations referenced in that request as "reviews"? The EC's own jurisdictional plea in its first submission exposes the EC's awareness that the panel request would be read just that way, and thus the EC took great pains to argue, or overargue, that the panel request should be read more broadly.118
5.33.
The United States is not ignoring or deliberately misconstruing the express terms of paragraph 7 of the panel request. According to the United States, the EC acknowledges that the panel request refers to "reviews related to the measures in question" but the EC appears to assume that the words "related to" transform the "reviews" into "measures" included within the terms of reference for purposes of its panel request. The United States contends, however, that nowhere does the panel request state that those reviews are in fact the measures in question.119 Noting that the EC continues to argue that its reference to "omissions" brings the reviews in the Annex within the terms of reference, the United States maintains that an omission is a failure to act, not an action; the reviews are "actions"; and the reviews are therefore not omissions. Thus, a fair reading of the panel request does not allow subsequent reviews to be read into the word "omission."120
5.34.
Finally, the United States notes that the EC has used a variety of terms to characterize its views on the measures at issue, i.e., the EC uses "subsequent reviews," "assessment instructions," and "amendments." The United States considers that that fact that the EC appears to use them somewhat interchangeably adds to the confusion.121 The United States understands the EC to argue that, the subsequent reviews listed in the Annex to its panel request were actually measures from the original dispute. It appears that the EC relies upon the use of the phrase "amendments" from the original proceeding as support for this proposition. The EC has failed to establish that these subsequent reviews are "amendments." The EC has failed to establish that the subsequent reviews were part of the original proceeding.122
5.35.
The United States points out that the EC, in its original panel request, directly referenced amended determinations in the context of US antidumping law. US law provides a procedure to correct or remove any faults or errors in a Commerce antidumping determination. Thus, the reference to "amendments" has a precise meaning in the context of this dispute. It refers to corrections to the measures identified in the original proceeding; but it does not refer to subsequent determinations, which involve different entries, different time periods, and perhaps even different parties. The Annex to the original dispute itself reflects this fact. In Annex II, the EC lists as separate "cases" multiple administrative reviews relating to the same order. The EC's own original panel request therefore confirms that the phrase "amendments" did not refer to subsequent determinations, and that the argument that the EC makes in this proceeding is therefore incorrect.123
5.36.
Similarly, the United States argues that sunset reviews are not amendments "to the original measures" either, despite the EC's assertion to the contrary. The United States maintains that administrative reviews are distinct proceedings because they involve different time periods and transactions. Sunset reviews are distinct from investigations and administrative reviews because they determine whether the expiration of an antidumping duty would be likely to lead to the continuation or recurrence of dumping and injury. They do not determine antidumping duty liability.124 Thus, according to the United States, a determination in a sunset review is not a mere correction or removal of the faults or errors from an investigation, but rather a separate determination for a separate purpose based on different evidentiary standards. Like many of the other determinations listed in the EC's annex to its Article 21.5 panel request, these sunset review determinations did not exist at the time of the establishment of the original panel.125
5.37.
The United States asserts that a further flaw with the EC's attempt to expand the terms of reference to include the subsequent determinations listed in the Annex is that many of these determinations did not yet exist at the time of the establishment of the original panel. A matter may only be referred to a panel if "final action has been taken by the administering authorities." Anti-Dumping Agreement, Article 17.4. Measures that are not yet in existence at the time of panel establishment are not within a panel's terms of reference under the DSU.126
5.38.
The United States argues that the EC's original "as applied" claims could not be as broad as the EC now contends because that would mean that the EC's claim encompassed Commerce determinations and actions that were not in existence at the time of the establishment of the original panel. The original panel was established at the March 19, 2004 DSB meeting. Yet most of the subsequent determinations identified by the EC in its annex to its Article 21.5 panel request were made after March 19, 2004.127 The United States further notes that some determinations listed in the Annex were made prior to the EC's original corrected panel request. Thus, the EC is using the concept of "subsequent determinations" to include in this proceeding determinations that it could have included not only in its original panel request, but in its corrected request. This is still a further expansion of the findings in the original proceeding.128
5.39.
The United States also notes the EC's argument that the subsequent determinations listed in its annex to its Article 21.5 panel request are measures taken to comply, and are thus within the scope of this proceeding.129 The EC has asserted that these determinations are "closely connected" to the original investigations and administrative reviews identified in the original proceeding. Whether a determination has a connection to the DSB recommendations and rulings is not sufficient to bring that determination within the scope of an Article 21.5 proceeding. The United States recalls that as the Appellate Body stated, not every measure that has "some connection with," "could have an impact on," or could "possibly undermine" a measure taken to comply may be scrutinized in an Article 21.5 proceeding.130
5.40.
In light of the above arguments by the EC, the United States concludes that not only is the EC seeking to have the Panel transform the as applied findings of the original proceeding to future events, but it is also trying to go back in time to have the Panel extend these findings to past events. However, the Panel's terms of reference are clear. They are limited to the determinations in the 15 investigations and 16 administrative reviews, and not to reviews occurring prior to the adoption of the recommendations and rulings in this dispute.131
5.41.
The United States further observes that the EC's argument that it is not only challenging these subsequent determinations as measures taken to comply, but that it is, rather, challenging the "omissions or deficiencies" of the United States as reflected in these subsequent determinations, only further demonstrates, that the EC is attempting to gain the benefits of an "as such" finding, when the Appellate Body declined to make one.132 That is, the "as applied" findings made by the original panel and the Appellate Body covered the determinations made in the 15 investigations and 16 administrative reviews identified by the EC in its original panel request. As demonstrated above, the "as applied" findings did not cover the subsequent determinations identified by the EC in the annex to its Article 21.5 panel request.133 An "as applied" challenge concerns the "application of a general rule to a specific set of facts." By contrast, "an 'as such' claim challenges laws, regulations, or other instruments of a Member that have general and prospective application...". As demonstrated in the US First Written Submission, the United States has removed the cash deposit rate established by the challenged determinations, and thus complied with the DSB's recommendations and rulings concerning the "as applied" claims.134
5.42.
The United States lastly reiterates that by complaining about the "continued" use of the allegedly "same methodology" that was the subject of the DSB recommendations and rulings "when carrying out dumping determinations in the subsequent review proceedings", the EC effectively complains of the general and prospective application of the so-called "zeroing" methodology and that, despite the EC's contentions to the contrary, by seeking the application of the DSB's recommendations and rulings to "subsequent review proceedings," the EC is attempting to gain the benefit of an "as such" finding, when the Appellate Body declined to make one.135

2. European Communities

5.43.
The European Communities submits that the request for a preliminary ruling by the United States is unfounded.136 The EC notes in this regard that the United States137 requests the Panel to find that the only measures within the terms of reference of this proceeding are the 15 original investigations and 16 administrative reviews referenced in paragraph 7 of the EC's Panel Request. In particular, the United States argues that certain administrative and sunset review proceedings listed in the EC's Panel Request are not properly before this Panel because (1) they were not identified in the EC's Panel Request, and (2) they were not subject to the DSB's recommendations and findings in the original dispute and, thus, they are not measures taken to comply.138
5.44.
The European Communities observes that proceedings under Article 21.5 of the DSU relate to "measures taken to comply with the recommendations and rulings" of the DSB. Thus, the phrase "measures taken to comply" refers to measures which have been, or which should be, adopted by a Member to bring about compliance with the recommendations and rulings of the DSB. In other words, a complaining Member can challenge either a Member's implementing actions (i.e.,measures which have been adopted) or their omissions (i.e.,measures which should have been adopted). The European Communities recalls that an Article 21.5 proceeding is not only about the consistency of a measure taken to comply with the covered agreements, but also about the existence of such a measure and that this was explicitly confirmed by the Appellate Body in US – Softwood Lumber IV (21.5). Thus, if the recommendations and rulings of the DSB have not been complied with, a measure taken to comply does not "exist".139 In this context, the European Communities argues that the United States has failed to adopt measures necessary to comply with the DSB's recommendations.140
5.45.
The European Communities asserts that the "measures taken to comply with the recommendations and rulings" for the purposes of Article 21.5 of the DSU necessarily flow from the particular "recommendations and rulings" in question: in the present case, those adopted by the DSB in May 2006.141
5.46.
The European Communities recalls in this connection that the original dispute concerned the application by the United States of the so-called "zeroing methodology" when determining dumping margins in anti-dumping proceedings, including proceedings resulting in the initial imposition of anti-dumping measures and proceedings relating to the collection of anti-dumping duties.142 The EC observes that the "as applied" measures it challenged in the original dispute were (i) 15 original investigations, including "any amendments" and "each of the assessment instructions issued pursuant to any of the 15 Anti-dumping Duty Orders"; and (ii) 16 administrative reviews, also including "any amendments" and "each of the assessment instructions issued pursuant to any of the 16 Notices of Final Results".143 In this respect, the European Communities argues that all the measures it challenges are clearly connected to the original Panel and Appellate Body reports, as explained in US – Upland Cotton (21.5). The Annex to the Panel Request describes the subsequent measures adopted by the United States from the original investigations and administrative review investigations identified in the original dispute. These include (i) administrative reviews which, in essence, collect the anti-dumping duties due with respect to a particular period of review and establish new cash deposit rates amending the ones calculated in the original investigations (or administrative reviews); and (ii) sunset reviews, which prolong the original anti-dumping order and, thus, the duties.144
5.47.
The European Communities argues that it has shown in detail in its Rebuttal Submission that those subsequent reviews were covered by the description of the measures challenged in the original dispute. In this context the European Communities specifically notes that the EC's First Written Submission in the original dispute described the measures at issue as 15 original investigations, including any amendments and assessment instructions, and 16 administrative reviews, also including any amendments and assessment instructions.145 The European Communities notes that the Panel in the original dispute correctly captured the description of the measures at issue not only in paragraph 2.6 of its Report, but also in other sections, including its findings146, and that the adopted DSB reports found the 15 original investigations and 16 administrative reviews inconsistent with Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994, and recommended the United States to bring its measures into conformity with its obligations.147 The European Communities also observes that its Notice of Appeal contained the same description of the measures. Accordingly, the Appellate Body ruled on the basis of such a description. In light of the above, the European Communities maintains that the DBS's recommendations and rulings in the original dispute comprised the 15 original investigations and the 16 administrative reviews, including any amendments and any assessment instructions.148 Therefore, according to the EC, the United States was required to bring those measures, including any amendments and assessment instructions, into conformity with the mentioned agreements.149
5.48.
The European Communities argues that according to WTO jurisprudence, a measure that essentially replaces an earlier measure remains within the terms of reference of an original panel. Thus, a 21.5 panel must be in a position to assess whether an annual administrative review determination (or sunset review) that confirms and supersedes the original determination relating to the same anti-dumping duty and the same methodology (i.e.,zeroing) constitutes a "continuing violation".150 Therefore, the European Communities considers that all matters referred to in its submission fall within the scope of this proceeding. In particular, the measures mentioned in the Annex to the Panel Request, in addition to the Section 129 Determinations explicitly mentioned by the United States as "measure taken to comply", fall within the scope of this proceeding.151
5.49.
The European Communities observes that the United States has hardly raised any substantive arguments in its First Written Submission; rather, it has relied on purely formal ones. In this respect, the European Communities notes its view that the United States misinterprets the EC's claims with respect to the scope of this proceeding. Any amendments and assessment instructions connected to the 15 original administrations and 16 administrative reviews were covered by the description of the measures at issue in the original dispute. Therefore, the subsequent review proceedings listed in the Annex to the Panel Request, as well as the US omissions and deficiencies in its compliance with the DSB's recommendations and findings, fall within the scope of this proceeding. Likewise, the European Communities claims that those subsequent reviews are measures taken to comply with the DSB's recommendations and findings and, thus, are subject to this proceeding.152
5.50.
The European Communities considers that in its Rebuttal Submission, the United States is trying to change what the Panel in the original dispute and the Appellate Body found to be the "measures at issue" in the original dispute. The United States cannot reopen now an issue that was already settled by the Panel (and the Appellate Body) in the original dispute. Moreover, the description of the measures in the original dispute referred to "any amendments", which indicates the broad coverage of the measures at issue.153 The European Communities therefore maintains that, as subsequent reviews were covered by the DSB's recommendations and rulings, the United States should have stopped using zeroing with respect to those measures, at least, after the end of the reasonable period of time (i.e.,9 April 2007). Since the United States has failed to do so, the European Communities challenges in this proceeding the US omissions and deficiencies when complying with the DSB's recommendations and rulings.154
5.51.
The European Communities argues in the alternative that, should the Panel consider that the subsequent reviews were not included in the description of the measures in the original dispute (although the European Communities finds it impossible to envisage any basis on which the Panel could reach such a conclusion), the European Communities also argues that they equally fall within the terms of reference of this Panel because they are "measures taken to comply". Even if the subsequent review proceedings were to be considered as separate determinations or different measures from those covered by the DSB's recommendations and rulings in the original dispute, the European Communities is of the view that they can be regarded as "measures taken to comply" because of their close nexus with the 15 original investigations and the 16 administrative reviews in the original dispute. The particular facts of this case show that the nature of the subsequent reviews is, in essence, the same as the measures in the original dispute. Moreover, the violation originally challenged (i.e.,the use of zeroing when calculating dumping margins) still remains in the subsequent review proceedings, either by applying simple zeroing when calculating the duties to be collected or establishing new deposit rates, or by relying on dumping margins previously calculated with zeroing. Furthermore, the subsequent review proceedings relate to the same products, the same countries and the same exporting companies. In other words, according to the EC, they are a continuation of the 15 original investigations and the 16 administrative reviews in the original dispute, whose effects based on zeroing still remain in place after the end of the reasonable period of time. Finally, as the Appellate Body observed in US – Softwood Lumber IV (21.5), the European Communities considers that measures predating the adoption of the DSB's recommendations and rulings may also be covered by Article 21.5 DSU proceedings. Otherwise, Members could adopt new measures diametrically against compliance in a particular case just the day before the adoption of the DSB report.155 In light of this close nexus, the European Communities submits that the subsequent review proceedings listed in the Annex to the Panel Request can also be considered as "measures taken to comply" falling within the scope of this proceeding.156
5.52.
The EC maintains that, despite the US efforts to argue otherwise, the measures at issue in the original dispute were the 15 original investigations and the 16 administrative reviews, including any amendments and their assessment instructions. Since the subsequent reviews proceedings listed in the Annex to the Panel Request are amendments to the original measures, they fall within the scope of this proceeding. Furthermore, an examination of those subsequent review proceedings and the acts (and omissions) taken by the United States after the end of the reasonable period of time, shows that the United States (i) has continued collecting duties and establishing cash deposits based on zeroing, and (ii) has relied on dumping margins equally based on zeroing to extend the original measures pursuant to sunset review proceedings. Therefore, the US omissions and deficiencies in this case fully confirm the jurisdiction of this Panel to examine this matter.157 Alternatively, the European Communities argues that it has shown that the subsequent reviews listed in the Annex to the Panel Request are "measures taken to comply", since they have a close nexus with the DSB's recommendations and rulings in the original dispute. Indeed, the subsequent reviews relate to the same products, the same countries and the same exporters and, thus, are a continuation of the 15 original investigations and 16 administrative reviews in the original dispute. No matter which legal theory the Panel chooses to follow, it is evident that the United States cannot escape from a ruling on the substance of this case: once again, the meaning of immediate compliance with the DSB's recommendations and rulings.158
5.53.
The European Communities emphasises that through this compliance proceeding it is merely seeking to have the "as applied" findings adopted by the DSB in the original dispute fully implemented by the United States, concluding that regardless of the characterisation of the findings made by the Panel and the Appellate Body in the original dispute, the DSB's recommendations and rulings clearly stated that the zeroing methodology applied by the United States in the 15 original investigations and the 16 administrative reviews was inconsistent with Article 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994. Consequently, in the EC view, when applying the same zeroing methodology in the subsequent reviews listed in the Annex to the Panel Request, the United States failed to comply with the DSB's recommendation to bring the measures into conformity with its obligations.159
5.54.
The European Communities argues that all matters referred to this Panel fall within the scope of this proceeding.160 The European Communities asserts that the Panel Request clearly identifies the measures at issue. It disputes the US argument that the European Communities has not complied with Article 6.2 of the DSU since it has failed to identify the specific measures at issue in its Panel Request. The European Communities argues that the US submission is entirely without merit. According to the European Communities, the United States simply ignores or deliberately misconstrues the express terms of paragraph 7 of the Panel Request, which refers to "the reviews related to the measures in question", and which expressly cross-refers to the Annex to the Panel Request, which lists the measures that the European Communities does place before this compliance Panel.161
5.55.
Moreover, the European Communities submits that it has adequately identified the measures at issue in this dispute in its Panel Request. As the Appellate Body observed in US – FSC (21.5 II), in order to identify the "specific measures at issue" in an Article 21.5 proceeding, the complaining party must (i) cite the recommendations and rulings that the DSB made in the original dispute which, according to the complaining party, have not yet been complied with; and (ii) identify, with sufficient detail, the measures allegedly taken to comply with those recommendations and rulings, as well as any omissions or deficiencies therein, or state that no such measures have been taken by the implementing Member. The EC's Panel Request fully meets these requirements.162
5.56.
The European Communities contends that the measures listed in the Annex to the Panel Request fall within the scope of this proceeding. It rejects the US argument that the "subsequent reviews" listed in the Annex to the Panel Request (including administrative review and sunset review proceedings) were not covered by the original dispute and, thus, are not "measures taken to comply" subject to this proceeding. In this respect, the European Communities submits that the United States tries to narrow the scope of the Article 21.5 proceedings and seeks to exclude measures that were subject to the DSB's recommendations and findings in the original dispute and/or are measures taken to comply within the jurisdiction of this compliance Panel.163 The European Communities submits that the omissions by the United States are also covered by the Article 21.5 proceeding, and the Panel is called upon to examine the "existence" (or inexistence) of measures taken to comply by the United States, in particular, by examining the subsequent review proceedings listed in the Annex to the Panel Request.164
5.57.
The European Communities argues that the "subsequent reviews" listed in the Annex to the Panel Request are measures which were covered by the DSB's recommendations and findings in the original dispute and/or are measures taken to comply. In this regard it notes that the United States argues that the subsequent reviews and their assessment instructions that the European Communities contests in this proceeding were not the basis for the DSB's recommendations and ruling in the original dispute. According to the United States, the European Communities merely obtained DSB's recommendations and rulings with respect to the USDOC's determinations in the 15 original investigations and the 16 administrative reviews. The United States also maintains that the European Communities cannot bring new dumping determinations concerning different periods of time into this proceeding simply because those determinations involved the same product. Finally, the United States argues that many of the subsequent review proceedings listed in the Annex to the Panel Request pre-date the adoption of the DSB reports and, thus, cannot be within the scope of an Article 21.5 proceeding.165
5.58.
The European Communities considers that the United States misunderstands the EC's claim on this point. The European Communities is not only arguing that subsequent reviews and assessment instructions are "measures taken to comply" and, thus, that they fall within the scope of this proceeding. Nor is the European Communities simply arguing that it can challenge new dumping determinations because they relate to the same product. Rather, the European Communities also argues that subsequent reviews and assessment instructions with respect to the 15 original investigations and 16 administrative reviews challenged in the original dispute were covered by the DSB's recommendations and findings, and thus that US omissions or deficiencies in that respect – as reflected in the said reviews – also clearly fall within the jurisdiction of this compliance Panel.166
5.59.
The European Communities observes that its First Written Submission, the Panel Report, the EC's Notice of Appeal and the Appellate Body Report refer to "any amendments" and "assessment instructions" when describing the original investigations and administrative reviews at issue in the original dispute. Thus, the European Communities submits that the "subsequent reviews" listed in the Annex to the Panel Request (as well as any assessment instruction therein) are covered by the DSB's recommendations and finding and, thus, fall within the scope of this proceeding.167 In particular, the European Communities considers that the United States has failed to take the necessary measures to eliminate zeroing in those subsequent reviews. In other words, the United States has continued using the same methodology which was found inconsistent with the Anti-Dumping Agreement and the GATT 1994 by the reports adopted by the DSB in May 2006 when carrying out dumping determinations in the subsequent review proceedings referring to the 15 original investigations and 16 administrative reviews in the original dispute. Thus, the US omissions and deficiencies in its compliance with the DSB's recommendations and findings fall within the scope of this compliance proceeding.168
5.60.
The European Communities also argues that the subsequent review proceedings listed in the Annex to the Panel Request are "measures taken to comply" since they are closely connected to the original investigations and administrative reviews identified in the original dispute and the DSB's recommendations and rulings. The European Communities observes that the nature of the subsequent reviews is, in essence, the same as the measures in the original dispute (i.e.,collect anti-dumping duties and establish cash deposits based on zeroing). The violation originally challenged (i.e.,the use of zeroing when calculating dumping margins) still remains in the subsequent review proceedings. Further, the subsequent review proceedings relate to the same products, the same countries and the same exporting companies. In other words, they are a continuation of the 15 original investigations and 16 administrative reviews in the original dispute, whose effects based on zeroing still remain in place after the end of the reasonable period of time.169
5.61.
The European Communities submits that the sunset reviews mentioned in the Annex to the Panel Request also fall within the scope of this proceeding. In response to the argument made by the United States that, since the European Communities did not challenge any sunset reviews in the original proceeding and, thus, there are no DSB's recommendations or findings relating to these, the sunset review proceedings listed in the Annex to the Panel Request do not fall within the scope of this proceeding170, the European Communities recalls that the adopted DSB's recommendation also covered any amendments to the 15 original investigations and 16 administrative reviews. Article 11.3 of the Anti-Dumping Agreement provides for the termination of anti-dumping duties after five years in the absence of a positive determination in a sunset review, which restarts a new five-year period of application. Determinations in sunset review proceedings, which are based on previous dumping margins, may lead to the continuation of the measures based on the level of duties found in the original LTFV investigation or the most recent administrative review which reflects the most representative degree of dumping. Therefore, in view of the European Communities, by their nature, sunset review proceedings are amendments to the original measures because they restart the application of the duty for another five years (i.e.,in their absence the duty would not longer be in force) and, thus, they were covered by the DSB's recommendations and findings in the original dispute. The European Communities argues that the US omissions or deficiencies in that respect – as also reflected in the said reviews – clearly fall within the jurisdiction of this compliance Panel. Likewise, as mentioned before, the sunset reviews listed in the Annex to the Panel Request are "measures taken to comply" since they are closely connected to the original investigations and administrative reviews in the original dispute.171
5.62.
Noting the argument of the United States that the European Communities is attempting to use this Article 21.5 proceeding to obtain the effect of an "as such" finding that the Appellate Body declined to make with respect to the use of simple zeroing in administrative reviews172, the European Communities argues that the United States misinterprets the EC's claim in this regard.173 The European Communities argues that it is merely seeking the implementation of the "as applied" finding of the panel report in the original dispute. Therefore, the European Communities is not arguing in general, as the United States believes, that the US implementation obligations with respect to the "as applied" claims extend to distinct determinations – for example related to other products or other sub-regions of the European Communities, or entirely new original investigations – or indeed to measures that may or may not "supersede" the measures described in the original Panel Request. In contrast, the European Communities argues that, in this particular case, since the subsequent reviews and assessment instructions were part of the measures challenged in the original dispute, the US implementation obligations with respect to the "as applied" claims extend to any subsequent determination and assessment instruction in connection with the measures as described by the Panel and the Appellate Body in the original dispute, as well as the related US omissions or deficiencies. In other words, the scope of the "as applied" finding covered every instance of application (and omission or deficiency) of the zeroing methodology by the United States with respect to any amendments, including assessment instructions, of the 15 original investigations and 16 administrative reviews, since those were part of the measures challenged "as applied".174 In light of the foregoing, the European Communities requests this Panel to fully reject the request for preliminary ruling made by the United States. The European Communities invites this Panel to make a preliminary finding on the US request at an earlier stage of this proceeding, provided that this does not delay the conclusion of the proceeding in due time.175

B. PANEL COMPOSITION

1. European Communities

5.63.
The European Communities raises the issue of the Panel composition as a procedural matter which must be examined in this case, also in view of the obvious and important systemic interest of a finding on this point.176
5.64.
The European Communities recalls that in the context of an exchange of views between the Parties when discussing the composition of this Article 21.5 Panel, the WTO Secretariat indicated that the Chair of the Panel and one Member of the Panel were not available. It was therefore clearly necessary, in the EC's view, to appoint at least two new panelists and to appoint one of the three panelists as Chair. The remaining Panelist is from the European Communities. On 1 October 2007, the European Communities sent a letter to the WTO Secretariat opposing the exclusion of this panelist, since he was available to serve as a panelist. However, the EC states that in a meeting held with the parties on 5 October 2007, the WTO Secretariat expressed the view that, without prejudice to the correct interpretation of the DSU on this point, three new panelists should be appointed.177
5.65.
The European Communities calls upon this Panel to interpret the relevant provisions of the DSU, in the exercise of its inherent jurisdiction to consider and make findings with respect to such matters. More specifically, the European Communities submits that a correct interpretation of the relevant provisions of the DSU necessarily leads to the conclusion that, when panelists of the original dispute are available to serve in Article 21.5 proceedings, they cannot be unilaterally removed from the panel by one of the Parties. This is equally the case even if the remaining panelists are of the nationality of one of the parties, since the original agreement pursuant to Article 8.3 of the DSU cannot be revoked at any stage of the dispute proceeding, including subsequent compliance proceedings.178
5.66.
Finally, the European Communities is of the view that a panel may be requested to rule on the propriety of its own composition, resulting in findings subject to appellate review. Even if the parties do not address this issue directly in their submissions, the Panel has a duty to address it, as it is of fundamental importance for the correct interpretation of the DSU and for the smooth and equitable operation of the WTO dispute settlement system. Therefore, the European Communities requests the Panel to find that the composition of the Panel was not consistent with Articles 21.5 and 8.3 of the DSU.179

2. United States

5.67.
The United States notes that the EC has asked the Panel to rule on its own composition, and, in particular, to find that it was not composed in a manner consistent with Articles 21.5 and 8.3 of the DSU for the first time in its rebuttal submission. It would be tempting for a responding party to agree with such a claim, as it would mean the panel in question had no authority to make findings on either of these claims, or the claims in the panel request. However, taking that position would do an injustice to the dispute settlement system, and thus the United States simply points out that it is struck by the irony in the EC's self-defeating, illogical, and unsupportable claim.180 The United States submits that these claims are not within the terms of reference of this Panel because they are not part of the "matter" referred to the DSB by the EC in its panel request. It argues that these claims are not about a measure identified in that panel request and that, in fact it is unclear, in light of DSU 6.2 and 7.1, how such a claim could ever be within the scope of a panel's terms of reference.181
5.68.
At the same time, the United States notes that the EC did not have the permission of the United States to disclose anything that the United States may or may not have said during the panel composition process. The United States is deeply concerned by the EC's unilateral actions in this regard. The United States therefore requests the Panel to strike from the record any discussion of the panel selection process (other than the EC's own selective allegations concerning its own positions) and request that third parties destroy or return this information.182

C. VIOLATIONS WITH RESPECT TO ALL MEASURES COVERED IN THIS PROCEEDING

1. Whether the United States extended the measures challenged in the original dispute pursuant to sunset review proceedings which relied on dumping margins calculated with zeroing

(a) European Communities

5.69.
The European Communities argues that the United States has extended the duration of the original measures challenged in the original dispute pursuant to sunset review proceedings concluded before and after 9 April 2007183, i.e., beyond the end of the reasonable period of time, notably as a result of sunset review investigations.184 The European Communities observes that although the future duty rate has generally been set based on the non-zeroed "Section 129" re-determinations, the fact remains that, in the sunset reviews, the United States expressly relied on the results of previous administrative review investigations, based on zeroing.185 In particular, it asserts that the USDOC decided to extend the measures challenged in the original dispute because, based on the previous levels of dumping found with zeroing in prior proceedings, it considered that it was likely that dumping would recur. In this respect, the European Communities submits that the United States violated Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement.186 The European Communities argues that the Anti-Dumping Agreement and the established case-law are clear on this point. If a sunset review relies on a zeroed dumping margin, the sunset review is necessarily inconsistent with the Anti-Dumping Agreement.187
5.70.
The European Communities maintains that the United States has relied on the dumping margins calculated with zeroing when finding the likelihood of recurrence of dumping in sunset review proceedings. In this sense, the European Communities challenges the omissions by the United States to take the necessary measures to comply in this case, i.e.,(i) that the United States should, on 9 April 2007, have stopped collecting anti-dumping duties based on zeroing in connection with any of the measures described in the original dispute and, thus, with respect to the measures contained in the Annex to the Panel Request; and (ii) that the United States should have recalculated, without zeroing, the previous dumping margins based on zeroing, in order to rely on them for the assessment of likelihood of recurrence of dumping in sunset review proceedings with respect to the measures mentioned above.188
5.71.
The European Communities recalls that, as highlighted by the Appellate Body in US – Corrosion-Resistant Steel Sunset Review, if a likelihood determination under Article 11.3 of the Anti-Dumping Agreement is based on a dumping margin calculated using a methodology inconsistent with Article 2.4 of the Anti-Dumping Agreement, then this defect taints the likelihood determination too and, thus, the USDOC's likelihood determination could not constitute a proper foundation for the continuation of anti-dumping duties under Article 11.3 of the Anti-Dumping Agreement. Moreover, the Appellate Body had the occasion to rule on the inconsistency of the use of zeroing in sunset review proceedings in measures adopted by the United States in US – Zeroing (Japan), where it also noted that the USDOC relied on past margins that were calculated during administrative reviews on the basis of "simple zeroing". Having previously concluded that zeroing in administrative review investigations is inconsistent with Articles 2.4 and 9.3 of the Anti-Dumping Agreement, the Appellate Body found that the determinations in the sunset reviews at issue were inconsistent with Article 11.3 of the Anti-Dumping Agreement.189 In light of the foregoing, the European Communities submits that, by relying in the sunset review proceedings mentioned in the Annex to the Panel Request on margins calculated in prior proceedings using model or simple zeroing, the United States did not comply with its obligations pursuant to Articles 2.1, 2.4 and 2.4.2 because these margins were not based on a fair comparison and not calculated for the product as a whole. As a result, the United States acted in breach of Article 11.3 of the Anti-Dumping Agreement.190
5.72.
The European Communities notes that the United States has not contested this claim in substance191, and that it has not produced any substantive evidence to rebut the EC's claims.192 The European Communities observes that on this point, the United States only argues that, since the European Communities did not challenge any sunset reviews in the original proceeding, there are no DSB's recommendations or findings relating to these and, therefore, the sunset reviews listed in the Annex to the Panel Request do not fall within the scope of this proceeding. In this respect, the European Communities recalls its arguments that the adopted DSB's recommendation also covered any amendments to the 15 original investigations and 16 administrative reviews, including sunset review proceedings, and related US omissions or deficiencies therein. Thus, the sunset reviews proceedings listed in the Annex to the Panel Request fall under the scope of this proceeding.193 Therefore, the European Communities requests the Panel to find that United States did not comply with the DSB's recommendations and rulings and violated Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement when extending the measures contained in the original dispute pursuant to sunset review proceedings relying on margin of duties calculated with zeroing.194

(b) United States

5.73.
In response to the EC's attempts to challenge certain sunset reviews, the United States recalls that the EC did not challenge any sunset reviews in the original proceeding and, thus, there are no DSB recommendations or rulings relating to sunset reviews. Consequently, the sunset reviews identified in the EC's 21.5 panel request cannot be within the terms of reference of this panel.195 The EC relies on US – Zeroing (Japan) for support. However, in view of the United States, that dispute only confirms the fundamental flaw in the EC's posture. In US – Zeroing (Japan), Japan in its panel request in the original proceeding expressly challenged sunset reviews and included a claim that the United States had acted inconsistently with Article 11.3. By contrast, in its panel request in the original proceeding, the EC did not challenge sunset reviews nor set out a claim concerning Article 11.3. (Indeed, the EC appears to have recognized that claims against sunset reviews must be made in the original panel request, because it has expressly done so in its other zeroing dispute against the United States.) The United States argues that the EC cannot cure its failure to pursue a claim in the original proceeding by seeking to include it in a compliance proceeding.196 In addition, the United States argues that the EC's Article 21.5 panel request did not identify the sunset reviews as measures within the terms of reference of this proceeding. Rather, the sunset reviews are simply identified as "reviews" related to the measures in question. Therefore, with respect to those reviews, the EC did not "specify the measures at issue" as required by Article 6.2.197 Thus, the United States respectfully requests the Panel to find that the only measures within the terms of reference of this proceeding are the 15 original investigations and 16 administrative reviews referenced in paragraph 7 of the EC's Article 21.5 panel request.198

2. Whether the United States continues to collect anti-dumping duties and impose cash deposits inflated by zeroing after 9 April 2007, has failed to revoke the original orders entirely, and whether the 16 administrative reviews challenged in the original dispute have been "superseded"

(a) European Communities

5.74.
The European Communities argues that after the end of the reasonable period of time, the United States continues to take positive acts, including new administrative review investigations, assessment instructions and final liquidations, based on zeroing.
5.75.
The European Communities clarifies that it had challenged certain US legal instruments, procedures, methodologies and practice, "as such" and "as applied". In the 15 "as applied" cases referred to by the European Communities as "original investigations" the challenged measures were: the 15 Notices of Final Determinations of Sales at Less Than Fair Value, including any amendments, and including all the Issues and Decision Memoranda to which they refer, and all the Final Margin Program Logs and Outputs to which they in turn refer, for all the firms investigated; each of the 15 Anti-dumping Duty Orders; each of the assessment instructions issued pursuant to any of the 15 Anti-dumping Duty Orders; and each of the USITC final injury determinations. In the 16 "as applied" cases referred to by the European Communities as "administrative reviews" the challenged measures were: the 16 Notices of Final Results of Antidumping Duty Administrative Reviews, including any amendments, and including all the Issues and Decision Memoranda to which they refer, and all the Final Margin Program Logs and Outputs to which they in turn refer, for all the firms investigated; and each of the assessment instructions issued pursuant to any of the 16 Notices of Final Results.199
5.76.
The European Communities notes that on 31 October 2005, the Panel in the original proceedings circulated its report, finding that the United States had acted inconsistently with Article 2.4.2 of the Anti-Dumping Agreement when, in the original anti-dumping investigations concerned, the USDOC used "model zeroing". The Panel in the original proceedings also found that the same methodology was inconsistent, "as such", with Article 2.4.2 of the Anti-Dumping Agreement. However, the Panel concluded that the United States did not act inconsistently with Article 2.4.2 of the Anti-Dumping Agreement when using "simple zeroing" in the administrative reviews at issue. On 18 April 2006, the Appellate Body, following an appeal by the European Communities, issued its report, finding that the United States had acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 in the administrative review investigations at issue due to its use of a "simple zeroing" methodology, and reversing Panel's finding to the contrary. Moreover, the Appellate Body upheld the Panel's conclusion that "model zeroing" was inconsistent, "as such", with Article 2.4.2 of the Anti-Dumping Agreement. However, the Appellate Body was unable to complete the analysis to determine whether "simple zeroing" in administrative reviews was inconsistent, "as such", with the provisions of the Anti-Dumping Agreement.200
5.77.
The European Communities recalls that the Appellate Body recommended that the DSB request the United States to bring its measures, which had been found to be inconsistent with the Anti-Dumping Agreement and with the GATT 1994, into conformity with its obligations under those Agreements. On 9 May 2006, the DSB adopted the Appellate Body Report contained in WT/DS294/AB/R and the Panel Report contained in WT/DS294/R, as modified by the Appellate Body Report.201
5.78.
The European Communities observes that on 28 July 2006, the European Communities and the United States agreed, pursuant to Article 21.3(b) of the DSU, that the reasonable period of time for the United States to implement the recommendations and rulings of the DSB in the original dispute "shall be 11 months", expiring on 9 April 2007.202 The European Communities points out that on 27 December 2006, the United States published a notice whereby it announced that it was abandoning "zeroing" in average-to-average comparisons in anti dumping original investigations. The final modification became effective on 22 February 2007. The European Communities explains that with this, the United States committed to abandon the use of "model zeroing" in all current and future anti-dumping original investigations as of the effective date. Subsequently, the United States began a recalculation of the margins of dumping in 12 of the 15 original investigations challenged in the original dispute. In three of the 15 original investigation measures, the United States considered that it did not have to take any action since the anti-dumping orders had been previously revoked for reasons other than zeroing. The United States, having issued provisional findings on 26 February 2007, issued its final findings in 11 of the revised original investigations on 9 April 2007, which entered into effect on 23 April 2007, and on 20 August 2007 issued its final findings in Certain Stainless Steel Sheet and Strip from Italy (which entered into force on 31 August 2007) (the "Section 129 Determinations").203
5.79.
Despite the fact that the subsequent measures amended the 15 original orders and 16 administrative reviews challenged in the original dispute, the European Communities asserts that the United States continued after the end of the reasonable period of implementation and still now continues collecting duties calculated using zeroing as a result of those measures.204 In other words, the EC argues that despite the fact that the use of zeroing has been found repeatedly inconsistent with WTO rules in previous cases, the United States is reluctant to comply with its obligations and, thus, has failed to fully implement the recommendations of the DSB in the original dispute.205
5.80.
The European Communities asserts that the United States cannot change reality: after the end of the reasonable period of time, it has taken positive acts providing for final payment of the duties due or retention of the cash deposits made based on zeroing with respect to those entries not finally liquidated before the end of the reasonable period.206
5.81.
In the EC's view, in order to comply immediately with the DSB's recommendations and rulings in the original dispute, (i) the United States should have stopped taking any positive acts providing for the final payment of duties or retention of cash deposits based on zeroing with respect to those entries not finally liquidated before the end of the reasonable period in connection with any of the measures described in the original dispute and, thus, with respect to the measures contained in the Annex to the Panel Request; and (ii) the United States should have recalculated, without zeroing, the previous dumping margins based on zeroing, in order to rely on them for the assessment of likelihood of recurrence of dumping in sunset review proceedings with respect to the measures mentioned above. In addition, the United States, once it recalculated the dumping margins without zeroing pursuant to the Section 129 Determinations and revoked the measures, should have stopped collecting any duties at all, since the measures were thereby, in effect, void. All these acts are, in the EC's view, prospective in nature.207 The European Communities observes that it cannot understand why the United States, would not, in a simple accounting exercise, adjust its calculations so as to properly reflect the degree of dumping, if any, (i.e. without zeroing) that occurred, having a full opportunity to do so (in subsequent reviews of the measures concerned or in the appeals and protests filed by importers against them) and at least with effect from the end of the reasonable period of time, noting that the United States has failed to provide any explanation on this point.208
5.82.
In the particular circumstances of this case, in which such positive acts were expressly found to be part of the original measures at issue, the European Communities is of the view that it is impossible to characterise the actions (and omissions) of the United States as constituting immediate compliance.209 The European Communities recalls that the matter addressed by the Panel in the original proceedings was the use of zeroing when calculating dumping margins in original investigations as well as in administrative reviews and that the European Communities referred to 15 original investigations and 16 administrative reviews in order to demonstrate how the US zeroing methodology was inconsistent, inter alia, with Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement. The Appellate Body agreed with the European Communities position. Despite the DSB's findings and recommendation to bring its measures into conformity, the United States has manifestly failed to do so.210
5.83.
In support of its position, the European Communities asserts that, first, with respect to the original investigations covered in the original dispute, the United States has issued assessment instructions to collect anti-dumping duties in subsequent administrative reviews where simple zeroing was used and whose results were obtained after 9 April 2007. Second, even in cases where administrative review proceedings were not requested by the companies concerned, after 9 April 2007 the United States still seeks to collect duties at the rate established in the original investigations covered by the original dispute, where "model zeroing" was used. Third, in addition to issuing assessment instructions to collect anti-dumping duties, the United States has also established new cash deposits as a result of subsequent administrative reviews proceedings in connection with the original investigations challenged in the original dispute using simple zeroing after the end of the reasonable period. Fourth, with respect to administrative review proceedings covered in the original dispute, the United States has also issued assessment instructions to collect anti-dumping duties and has established new cash deposits in subsequent administrative reviews where simple zeroing was used and whose results were obtained after 9 April 2007. Fifth, with respect to both the original investigations and administrative reviews covered in the original dispute, after 9 April 2007 the United States still actively seeks to collect anti-dumping duties as a result of modifications of the original measures pursuant to subsequent administrative review proceedings for which assessment instructions were sent before 9 April 2007 and where "simple zeroing" was used and that after 9 April 2007, the United States still takes positive acts providing for final payment of the duties due or retention of the cash deposits made based on zeroing with respect to those entries not finally liquidated before the end of the reasonable period to implement the DSB's recommendations.211
5.84.
The European Communities submits that the measures adopted by the United States described above cannot be considered as "compliance with the DSB's recommendations". The European Communities observes that the DSB recommended that the United States bring the measures found inconsistent with the Anti-Dumping Agreement and the GATT 1994 into conformity and maintains that those measures included in the original dispute "any amendments" as well as "each assessment instructions issued pursuant to" the original order and/or administrative review.212
5.85.
The European Communities argues that the modifications made by the United States have not changed the "essence" of the contested measure in the original dispute (i.e.,use of zeroing in original investigations and administrative reviews) because the products from the countries concerned in the original dispute still are subject to anti-dumping duties unfairly imposed pursuant to the use of a methodology which has been found inconsistent by the adopted DSB reports and by the Appellate Body in other occasions.213 Therefore, the European Communities considers that, since the United States still collects anti-dumping duties calculated with zeroing with respect to the cases identified in the original dispute after 9 April 2007, the United States continues to violate Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.214
5.86.
Since it is not possible to relitigate the same issue twice in Article 21.5 proceedings, the European Communities submits that this Panel should not enter again into the conformity of the zeroing methodology with the mentioned agreements. This has already been confirmed by the adopted DSB reports in the original dispute, and is res judicata.215 Accordingly, since it is established that the United States still collects anti-dumping duties calculated with zeroing with respect to measures challenged in the original dispute, the European Communities requests the Panel to find that the measures listed in the Annex to the Panel Request are inconsistent with Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994, and that the United States remains in violation of these provisions.216
5.87.
The European Communities notes that the United States has not contested the facts provided by the European Communities that it has continued collecting duties and imposing cash deposits based on zeroing with respect to the measures challenged in the original dispute.217 The European Communities observes that, instead the United States argues that it has complied with the DSB's recommendations and rulings in the original dispute since no duties, as resulting from the determinations made in the 15 original investigations and 16 administrative reviews identified in the original dispute, are collected with respect to imports made on or after the end of the reasonable period. Moreover, the United States considers that the cash deposits resulting from the 16 administrative review proceedings challenged in the original dispute (the only element which may have remained after the end of the reasonable period), are no longer in place since they have been superseded and replaced by new determinations in subsequent administrative review proceedings.218
5.88.
As a preliminary remark, the European Communities notes that the US arguments purporting to demonstrate compliance with the DSB's recommendations and rulings in the original dispute are incorrect. But even following the US theory that compliance in this case means that no imports relating to the 15 original investigations and the 16 administrative reviews made after the end of the reasonable period of time are subject to duties based on zeroing, the European Communities argues that the facts of the case show something different. The European Communities notes in this context that the United States has recognised that imports of stainless steel wire rod from Sweden (Case 6 in the Annex of the Panel Request) after 9 April 2007 are subject to the original anti-dumping duties based on model zeroing. Likewise, the United States has admitted that it continues collecting anti-dumping duties and imposing cash deposits on imports of ball bearings from the United Kingdom (Case 31 in the Annex to the Panel Request) made by one company (NSK) at the rate based on simple zeroing in the administrative review challenged in the original dispute. Therefore, according to the EC, even under the US own theory, it is evident that the United States has not complied with the DSB's recommendations and rulings in the original dispute219, and that the US lack of compliance with the DSB's recommendations and rulings in the original dispute is obvious and manifest.220
5.89.
The European Communities explains that the liability to pay anti-dumping duties in the US system is determined at a later stage than the time of importation. The United States argues that the anti-dumping liability is created at the time of importation and, thus, imports made before or during the reasonable period of time to comply with the DSB's recommendations and rulings can be subject to WTO-inconsistent measures. In contrast, the European Communities considers that, in light of the particularities of the US system of duty assessment, the final amount to be collected and, thus, the obligation to pay any anti-dumping duties, is determined at a later stage than the time of importation. According to the US system of duty assessment, the final and true liabilities are established by the USDOC based on a subsequent retrospective accounting exercise. This exercise may lead to the conclusion that the importer is not responsible for the payment of duties. Moreover, importers can appeal the amounts established by the USDOC in accordance with US municipal law. These proceedings may result in a finding of no liability at all and, thus, no obligation to pay duties (or, alternatively, a modification of the amounts to be collected due to, for example, arithmetical errors made by the USDOC when calculating the duties).221 In these circumstances, the European Communities cannot understand why the United States would not adjust its calculations so as to properly reflect the degree of dumping (i.e.,without zeroing) that occurred (if any), having a full opportunity to do so (in subsequent reviews of the measures concerned or in the appeals and protests filed by importers against them), and at least with effect from the end of the reasonable period of time.222
5.90.
According to the EC, what the United States argues in this case is that it can collect duties based on zeroing after the end of the reasonable period of time even if the original anti-dumping order has been revoked because, absent zeroing, no dumping was found (or because of any other reason). Therefore, the United States acknowledges that its measure should never have been taken in the first place, while still claiming the right to collect anti-dumping duties (on a non-existent measure) long after its revocation.223 In other words, in the view of the EC, the United States is seeking to squeeze the juices out of the WTO-inconsistent measures until their last drop, even after the end of the reasonable period to comply agreed by the Parties to the dispute. Once more, this cannot be the meaning of "prompt compliance" in Article 21 of the DSU. Nor can it imply that the measures have been withdrawn, as required by Article 3.7 of the DSU.224 Moreover, the US interpretation of compliance will render the US system of duty assessment untouchable, as a moving target that escapes from anti-dumping duty disciplines. Each administrative review proceeding would have to be subject to a new panel request, and by the time the panel, Appellate Body and implementation procedure was completed, another administrative review proceeding would have superseded the results of any previous review. A new panel would have to be started against this review. The European Communities considers that this would run diametrically contrary to the purpose and objective of Article 21 of the DSU.225
5.91.
The European Communities maintains that the US theory to assess compliance in this case is inappropriate226, as well as inaccurate and insufficient.227 The European Communities considers that the application of the US theory as regards implementation would lead to absurd results in light of the circumstances of this case228, because it would imply that a Member whose measure has been found to be inconsistent with the WTO Agreements could still effectively apply that measure even after the end of the reasonable period of time to comply with the DSB's recommendations and findings.229 Thus, the European Communities submits that the Panel should reject it.230
5.92.
The European Communities sets out why it considers the US's compliance theoryis inaccurate. As the United States has acknowledged and not contested, it has continued levying anti-dumping duties at the rates originally established pursuant to model zeroing on imports of stainless steel wire rod from Sweden (Case 6 in the Annex of the Panel Request) after 9 April 2007; and has equally continued collecting anti-dumping duties and imposing cash deposits at the rates based on simple zeroing on imports of ball bearings from the United Kingdom (Case 31 in the Annex to the Panel Request), i.e.,the same rates of the administrative review challenged in the original dispute. Therefore, it is evident that the United States has not complied with the DSB's recommendations and rulings in the original dispute.231 Next, the European Communities explains why it considers the US's compliance theoryis insufficient - because, in the EC view, it allows the United States to keep its so-declared WTO inconsistent measures effectively in placeeven after the end of the reasonable period of time. In simple terms, what the United States argues in this case is that it can collect duties based on zeroing after the end of the reasonable period of time even if the original anti-dumping order has been revoked because, absent zeroing, no dumping was found. Likewise, the United States also claims that it can, after the end of the reasonable period to comply, liquidate duties at rates that were significantly higher than those which should have been collected absent zeroing. In this respect, the measures challenged in the original dispute are still in place since, until the United States stops taking positive acts to enforce them, their effects persist even after the end of the reasonable period. Once more, this cannot be the meaning of "prompt compliance" in Article 21 of the DSU. Nor can it imply that the measures have been withdrawn, as required by Article 3.7 of the DSU.232 In addition, the European Communities notes that the United States also seeks to make the "date of entry" the backbone principle as regards compliance in anti-dumping disputes. In this respect, the US theory on compliance disregards its own system, where the "date of entry" is not determinative of final liability.233
5.93.
Therefore, the European Communities considers that, in light of the characteristics of the US system, the anti-dumping liability – whether or not it is "created" at the time of importation – is not finally determined at that time, but only at a later stage. In these circumstances, the European Communities cannot understand why the United States would not, in that simple accounting exercise, adjust its calculations so as to properly reflect the degree of dumping (i.e.,without zeroing) that occurred (if any), having a full opportunity to do so (in subsequent reviews of the measures concerned or in the appeals and protests filed by importers against them), and at least with effect from the end of the reasonable period of time. Simply put, in the EC's view, the US efforts to find arguments to keep its measures in place even after the end of the reasonable period should be confronted by a clear ruling from this Panel.234
5.94.
The European Communities considers that, in order for the United States to comply with the DSB's recommendations and rulings, immediately after the end of the reasonable period of time the United States should have refrained from taking positive acts providing for the final payment of duties or retention of cash deposits based on zeroing with respect to those entries not finally liquidated before the end of the reasonable period, regardless of when those imports where made. The European Communities asserts that this approach does not imply a retrospective relief, as the United States argues235 and that it does not argue that the WTO dispute settlement system provides for retrospective relief. The European Communities considers that it has clarified in its First Written Submission that it asks for prospective implementation of the DSB's recommendations after the end of the reasonable period.236 In addition, the European Communities notes that it is possible for the United States to take positive steps after the end of the reasonable period to comply with the DSB's recommendations and rulings in respect of entries which were made before then, without this involving any retrospective relief. In fact, the European Communities observes that, according to the United States, Section 129(c)(1) permits the USDOC to apply new, WTO-consistent methodologies to entries made before the date of implementation of a Section 129 Determination.237 Therefore, the European Communities considers that the United States would comply with the DSB's recommendations and findings in a prospective manner in this case if it stops taking any positive acts providing for the final payment of duties or retention of cash deposits based on zeroing with respect to those entries not finally liquidated before the end of the reasonable period. However, the European Communities contends that this has not yet been the case.238
5.95.
The European Communities notes that the United States has also argued that the "date of entry" should be the reference for assessing compliance in the case of anti-dumping measures. In particular, it has emphasised that prospective and retrospective anti-dumping systems should lead to the same results when bringing WTO-inconsistent measures into conformity with the Anti-Dumping Agreement. The European Communities agrees. Under both systems, WTO Members are prevented from taking positive acts that are contrary to the adopted DSB reports after the end of the reasonable period of time.239
5.96.
Further, as a result of the 12 Section 129 Determinations, (i) two original orders were revoked because of the new calculation of dumping margins without zeroing; and (ii) ten original orders were partially revoked with respect to certain companies, whereas with respect to others, duties were reduced or increased as a result of specific calculations of dumping margins without zeroing or the general application of new "all others" duty levels.240 The European Communities considers that any future liquidation of entries subject to a revoked order (including those revoked because of reasons other than zeroing) or with respect to an exporter excluded from the scope of the relevant order would be illegal since, again, as mentioned in the previous section, this would amount to taking a positive act, already found to be WTO inconsistent, after the expiry of the implementation period.241 The European Communities argues that the United States seems to ignore the fact that, under its duty assessment system, the final liability of importers is determined at a later stage than the time of importation. Thus, any time after the end of the reasonable period of time the United States could carry out a simply accounting exercise to establish without zeroing the true and final liabilities to which entries are subject (if any). Finally, even if the legal basis for collecting duties has been revoked, the United States has not stayed proceedings to obtain final payment of those duties.242
5.97.
Finally, the European Communities submits, with respect to the 16 administrative reviews at issue in the original dispute, that the United States considered that in each case the results were superseded by subsequent reviews and, thus, no further action was necessary for the United States to bring the challenged measures into compliance with the recommendations and rulings of the DSB.243
5.98.
The European Communities argues that in order for the 16 administrative reviews challenged in the original dispute to be "superseded", the United States should have stopped them (by not collecting duties calculated with "simple zeroing") and replaced them (by collecting the duties and establishing new cash deposits based on a methodology without zeroing). The United States has failed in both respects.244 Firstly, the European Communities notes that the United States still collects duties established in the administrative reviews contested in the original dispute. Second, the European Communities argues that the United States has failed to recalculate the dumping margins without zeroing in all the administrative reviews covered in the original dispute. Finally, the fact that the United States has not recalculated the dumping margins in the administrative reviews concerned also affects the extension of the original orders pursuant to sunset review investigations.245

(b) United States

5.99.
The United States considers that it has implemented the DSB's recommendations and rulings and thus, has complied with the its obligations under the DSU. The Panel should reject the EC's claims non-compliance and its efforts to enlarge the obligations of the United States.246 Turning to the 15 antidumping investigations, the United States notes that by the time the DSB adopted its recommendations and rulings, Commerce had already revoked 3 of the antidumping orders resulting from those investigations. With respect to the other 12 investigations where antidumping orders remained in place, Commerce conducted proceedings under US domestic law, called Section 129 proceedings, to recalculate the margins of dumping. The Section 129 determinations resulted in the revocation of two additional orders. Later, Commerce revoked 4 more orders as a result of sunset reviews. Thus, with respect to the 15 determinations made in investigations, 9 concern antidumping orders that are now revoked. Thus, the United States submits that for all nine of the revoked antidumping duty orders, no antidumping duties will be assessed on entries of the goods made after the effective date of the revocation.247
5.100.
Turning to the 16 administrative reviews, the United States notes that the purpose of such reviews is to determine the final assessment rate on imports that occurred before the review commenced, and to calculate a new cash deposit rate that will be applicable to subject imports occurring after the determination is made.248 What the United States considers is noteworthy for purposes of this proceeding is that the 16 administrative reviews in question all involved entries that occurred prior to the adoption of the DSB recommendations and rulings. Noting that the EC concedes, that implementation of WTO obligations is prospective, the United States observes that nevertheless, according to the EC, the United States was obligated to refund duties in respect of entries that were made prior to the adoption of the recommendations and rulings. In other words, in the US view, the EC attempts to argue that the United States was effectively required to provide retroactive relief – i.e.,refunds of duties collected on prior entries solely as a result of the WTO dispute. However, in view of the principle of prospective relief to which even the EC subscribes, the United States submits that it was under no obligation to do so.249
5.101.
The United States observes that in the underlying dispute, the EC obtained DSB recommendations and rulings with respect to Commerce determinations in sixteen administrative reviews. The United States has taken measures to comply with respect to each of those determinations, and as a result of those measures, the United States has complied with those recommendations and rulings.250
5.102.
The United States clarifies that in some instances, the United States has revoked the antidumping duty order giving rise to the determinations challenged by the EC. Under US law, the United States no longer has the authority to collect cash deposits, or assess antidumping duties, on products subject to a revoked antidumping order which are imported on or after the date of revocation. This is the situation with respect to the four of the sixteen determinations challenged by the EC. With respect to the remaining reviews that the EC challenged, the cash deposit rate established in the challenged determination (the only aspect of the administrative review that could – absent the US compliance – have continued beyond the expiration of the RPT), is no longer in effect. To the extent that a cash deposit rate is currently in effect with respect to these same products from the same Member States of the EC, that is the result of a separate determination of dumping made in a separate administrative review examining distinct facts during a subsequent period of time.251
5.103.
Turning first to the antidumping duty orders revoked, the United States notes that these orders form the basis under US law for the authority to impose antidumping duties. That is, without an antidumping duty order in place, the United States cannot collect cash deposits and assess antidumping duties on imports made on or after the date of revocation.252 The United States observes that, in its annex to its panel request, the EC acknowledges that the following antidumping orders have been revoked in whole or with respect to certain companies identified in the EC's original panel request:

(1) Industrial Nitrocellulose from France (revocation effective 1 August 2003)

(2) Industrial Nitrocellulose from the United Kingdom (revocation effective 1 July 2003)

(3) Certain Pasta from Italy (revoked for Ferrara effective 9 February 2005, and for Pallante on 29 November 2005); and

(4) Stainless Steel Sheet and Strip in Coils from France (revocation effective 27 July 2004).253

5.104.
The United States observes, by way of example, with regard to Industrial Nitrocellulose from France, that it revoked the antidumping duty order effective 1 August 2003. This means that the United States ceased collecting cash deposits on imports occurring on or after that date, and such imports incur no antidumping duty liability. Therefore, as of the date of the EC's panel request in this Article 21.5 proceeding (and, in fact, as of the expiry of the reasonable period of time established in this dispute), no imports are affected by that antidumping duty order, and the measure challenged by the EC in the underlying proceeding has been terminated. The same is true with respect to the other antidumping duty orders that the United States has revoked. The United States submits that the elimination of these orders has thus brought the United States into compliance with the recommendations and rulings related to those orders.254
5.105.
The United States maintains that it has implemented the recommendations and rulings because each of the reviews has been superseded by Commerce determinations in subsequent administrative reviews. The chart attached as Exhibit US-17 specifies the subsequent Commerce determinations that have superseded each of the administrative reviews subject to the DSB's recommendations and rulings. The determinations in these subsequent reviews cover the same merchandise and the same exporters or producers identified by the EC. However, the subsequent reviews examined a wholly different set of sales transactions occurring during a different period of time. Given that in these subsequent determinations, Commerce calculated new margins of dumping, and put in place new cash deposits for the companies examined, as a result, the cash deposit rates that had been established in the determinations that the EC originally challenged have been superceded, because cash deposit rates from a determination in one administrative remain in effect only until a determination in a subsequent administrative review establishes a new cash deposit rate – once Commerce issues a determination in a subsequent administrative review involving the same merchandise and the same exporter or producer, the former cash deposit rate is terminated.255 Consequently, as of the date of the EC's panel request in this Article 21.5 proceeding (and in fact, as of the expiry of the reasonable period of time established in this dispute), no further entries are subject to antidumping rates established in the administrative reviews that the EC challenged in the underlying proceeding. Accordingly, because the challenged determinations, and in particular their cash deposit rates, have been superceded, the United States maintains that it has brought the challenged measures into compliance with the DSB's recommendations and rulings.256
5.106.
In this connection, the United States notes that it is puzzled by the occasional references in the EC's first submission to "definitive assessment of duties" and "collect[ion] of duties pursuant to liquidation instructions" after April 9, 2007 (the end of the reasonable period of time established in this dispute). While the point of these references is not at all clear, the United States assumes that the EC remains faithful to its long-held and oft-repeated position that, for purposes of assessing compliance with the rulings and recommendations of the DSB relating to duties, one examines the treatment accorded to goods entered on or after the expiration of the reasonable period of time. The EC took a similar view when it implemented the recommendations and rulings of the DSB in the dispute EC – Customs Classification of Frozen Boneless Chicken Cuts.257
5.107.
The United States notes that this EC position follows logically from the fact that the WTO dispute settlement provides prospective relief, not retrospective relief. For example, Article 19.1 of the DSU provides, "Where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned bring the measure into conformity with that agreement" (footnotes omitted). The ordinary meaning of the term "bring" is to "[p]roduce as a consequence," or "cause to become." These definitions give an indication of future action. Furthermore, under DSU Article 3.7, "the first objective of the dispute settlement mechanism is usually to secure the withdrawal of the measures concerned if these are found to be inconsistent with the provisions of any of the covered agreements." The withdrawal of the inconsistent measure is meant to provide a prospective solution to the nullification or impairment of the benefits accruing under the covered agreements, and not to provide compensation for any past harm.258
5.108.
Furthermore, the United States observes that in a WTO dispute challenging an antidumping or countervailing duty measure, the measure in question is a border measure. Accordingly, eliminating a WTO-inconsistent antidumping or countervailing duty measure prospectively at the border will constitute "withdrawal" of the measure within the meaning of DSU Article 3.7. And in this case, by superceding the administrative reviews at issue in the underlying proceeding, the United States has withdrawn the challenged measures.259
5.109.
The United States notes that in its First Written Submission, the EC raised two arguments concerning the determination in the investigation of Certain Hot-Rolled Carbon Steel Products from the Netherlands. First, the EC argued that the United States has assessed antidumping duties pursuant to determinations made in subsequent administrative reviews, where Commerce continued to deny offsets for non-dumped sales. Second, the EC contends that as a result of a rescission of an administrative review, the United States assessed antidumping duties at the cash deposit rate established in the original investigation.260 The United States clarifies in this connection that these final assessments are the result of determinations distinct from the determination made in the investigation. With respect to the EC's first argument, those assessment instructions were issued pursuant to the determination made in the 2004-05 administrative review. With respect to the EC's second argument, those assessment instructions were issued pursuant to the determination (in that case to terminate) the 2005-06 administrative review.261 The United States argues that neither of these two subsequent determinations are within the scope of this Article 21.5 proceeding. The EC's original panel request identified only Commerce's determination in the investigation of Certain Hot-Rolled Carbon Steel Products from the Netherlands. Similarly, the original panel's "as applied" findings covered only Commerce's determination from the investigation. Thus, the United States maintains that the Panel should reject the EC's claims as beyond the scope of this Article 21.5 dispute.262
5.110.
Turning to Commerce's Section 129 determination concerning the investigation of Stainless Steel Wire Rod from Sweden, the United States points out that Commerce complied with the recommendations and rulings of the DSB by providing offsets for non-dumped sales in the recalculation of the margin of dumping. As a result of the Section 129 determination, Commerce revoked the antidumping duty order on Stainless Steel Wire Rod from Sweden effective 23 April 2007.263 The United States argues that the EC contention that that the United States has established new cash deposit rates in Stainless Steel Wire Rod from Sweden based on an administrative review that Commerce published after concluding the Section 129 determination, however, is in error.264 Commerce did publish the amended final results of the 2004-05 administrative review of Stainless Steel Wire Rod from Sweden on 9 May 2007. According to the United States, in those amended final results, Commerce did state that it would notify CBP of the revised cash deposit resulting from the review, that the cash deposit rate would be effective as of the date of publication, and that "the cash deposit requirement shall remain in effect until further notice." However, on 10 May 2007, Commerce provided "further notice" by issuing instructions to CBP informing it of the revocation resulting from the Section 129 determination. These instructions informed CBP that any cash deposits paid on imports of wire rod from Sweden made on or after 23 April 2007, were to be refunded. All imports made on or after 23 April 2007, would not be subject to the final assessment of antidumping duties.265 The United States submits that as a result of the revocation of the antidumping duty order on stainless steel wire rod from Sweden, Commerce did not issue new cash deposit instructions to CBP based on the determination made in the 2004-05 administrative review. Accordingly, the United States requests that this Panel reject the EC's claim regarding the Section 129 determination in Stainless Steel Wire Rod from Sweden because Commerce provided offsets for non-dumped sales in the recalculation of the margin of dumping and that measure is no longer in effect.266
5.111.
The United States observes that when the DSB's recommendations and rulings concern a border measure, such as an antidumping duty, implementation occurs when the Member removes the border measure. Thus, the United States complied with the DSB's recommendations and rulings in two ways. First, with respect to some of the antidumping measures challenged by the EC, the United States revoked the antidumping duty orders, thereby removing the antidumping duty liability for entries occurring on or after the date of revocation. Second, the United States removed the border measure, the cash deposit rate, with respect to entries occurring on or after the date of implementation.267 The United States notes that the text of GATT 1994 and the Anti-Dumping Agreement confirms that it is the legal regime in existence at the time that an import enters the Member's territory that determines whether the import is liable for the payment of antidumping duties.268
5.112.
The interpretive note to GATT Article VI clarifies that, notwithstanding that duties are generally levied at the time of importation, Members may instead require a cash deposit or other security, in lieu of the duty, pending final determination of the relevant information. Thus, the cash deposit serves as a place-holder for the liability which is incurred at the time of entry. Consistent with the interpretive note, final assessment in the US system occurs after the date of importation. Indeed, a Commerce determination in an administrative review normally covers importations of the subject merchandise during the 12 months prior to the month in which the review is initiated.269 Several provisions of the Anti-Dumping Agreement further demonstrate that determining whether relief is "prospective" or "retroactive" can only be determined by reference to date of entry. Thus, by implementing the DSB's recommendations and rulings regarding its antidumping measures with respect to entries made on or after the date of implementation, the United States has complied with those recommendations and rulings. The United States has acted consistently with the principle of prospective implementation, as understood in the antidumping duty context.270
5.113.
This result is consistent with the effect that a finding of inconsistency would have on an antidumping measure in a prospective antidumping system. Under such systems, the Member collects the amount of antidumping duties at the time of importation. If an antidumping measure is found to be inconsistent with the Anti-Dumping Agreement, the Member's obligation is merely to modify the measure as it applies at the border to imports occurring on or after the date of importation [sic]. That is, the Member changes the amount of antidumping duties to be collected on importations occurring after the end of the reasonable period of time. The Member need not remedy the effects of the measure on imports that occurred prior to the date of implementation. That is, the Member is under no obligation to refund any antidumping duties assessed on importations occurring prior to the end of the reasonable period of time.271
5.114.
The EC argues that prospective implementation of the DSB's recommendations and rulings with respect to US administrative reviews would make the US system of duty collection "untouchable" and a "moving target." In this regard, the US system is no different from a prospective antidumping system – the EC's system. An "as applied" challenge to the allegedly improper collection of antidumping duties in a prospective system would necessarily come after the duties have been collected. By that time, the complaining Member could not recover the duties collected. Moreover, if the allegedly inconsistent collection continues during the pendency of the dispute, the complaining Member will be required to initiate further disputes in order to address the situation pursuant to the WTO dispute settlement system. This is the system to which the Members agreed, and it applies to all Members equally. This Panel should reject the attempts of the EC to gain a greater degree of relief from this system than that the Members provided for.272
5.115.
Finally, the United States notes that there is a fundamental problem with the EC's arguments in this dispute. In paragraph 72 of its Rebuttal Submission the EC argues, "Therefore, even if the products at the time of importation are potentially liable for anti-dumping duties, the US system of duty assessment implies that such a responsibility only materializes when the amount of the duties due for a particular period is determined pursuant to administrative review proceedings." If it were true that liability for antidumping duties only arose after the completion of an administrative review, this would mean that there would be no "final action" as required by Article 17.4 of the Anti-Dumping Agreement for the EC to challenge whenever Commerce issued a determination in an antidumping investigation. Rather, the EC could only challenge a Commerce antidumping duty determination after such a determination was made in an administrative review.273
5.116.
The United States notes that the EC agreed in its written submissions that WTO relief is prospective. In its submissions, the EC took pains to describe the US duty assessment system and the fact that "final" liability attaches at a point later in time than entry. Thus, it is the EC that emphasized the relevance of a retrospective system to the issues in this dispute. The United States argues that it responded by pointing out that "final" liability is not germane to the question of when a Member's duty to provide relief is triggered. The United States pointed out that the date of entry of the good is the only date upon which to evaluate whether relief is due. To conclude otherwise would be to discriminate against Members like the United States for having a retrospective duty assessment system, one expressly provided for under Article 9.3.1 of the Antidumping Agreement. As the United States explained, and as the original panel found, in a retrospective system, liability attaches at the time of entry, but final liability attaches at a later date. By contrast, in a prospective system, final liability is determined at the time of entry. This is precisely the distinction the EC emphasized when, as recently as its rebuttal submission, it referred to the "particularities of the US system of duty assessment."274 If final liability is the relevant point for assessing whether relief must be provided, then Members with prospective systems will have no implementation obligations in respect of entries made prior to the expiry of the reasonable period of time, but Members with retrospective systems will have such obligations in the event that final liability is calculated after the expiry of the RPT.275
5.117.
Notably, the EC seems to be abandoning its theory that the determination of final liability after importation is "particular" to retrospective systems, implying that it is equally applicable to prospective systems. Perhaps this new theory reflects acknowledgment of the fact that, otherwise, using final liability as the basis for establishing implementation obligations would put retrospective systems at a disadvantage. However, the EC's sudden change of position is not supported by the text of Articles 9.3.1 and 9.3.2, its written submissions276, or the panel report277, all of which make clear that calculation of "final liability" after importation is a facet "particular" (to borrow the EC's term) to the US retrospective system.278
5.118.
In addition, the EC argued that the Ikea case is an example of how the EC provides retrospective relief. Ikea does not stand for the proposition that the EC provides retrospective relief in connection with its implementation of recommendations and rulings. In the Ikea case, the European Court of Justice expressly rejected the notion of refunding the duties on that basis.279 Instead, the Court found that zeroing was inconsistent with paragraph 2(11) of the EC's basic regulation and was "a manifest error of assessment with regard to Community law."280 On that basis – that zeroing was inconsistent with the EC's own regulations, rather than the Antidumping Agreement – the Court ordered repayment of duties.281 Thus, the EC may in some circumstances provide refunds under its municipal law; but that does not mean that there is any WTO obligation to do so.282
5.119.
The United States observes that it has great trouble reconciling the EC's current litigation position – that entries made before the end of the reasonable period of time are subject to refunds – with: (1) EC statements to the contrary, as cited in the US first submission at paragraph 100, in which the EC makes clear that it will not provide reimbursements for prior entries; (2) the very nature of "prospective relief"; and (3) the EC's emphasis on the fact that "final liability" attaches at a later point in time in a retrospective system.283 If the United States accepts the theory proffered by the EC at the panel meeting – that refunds must be given on imports dating back to some undetermined date preceding the expiry of the RPT – the question of "final" liability particular to a retrospective assessment system would be irrelevant.284
5.120.
Turning to the EC's claims regarding the determination in the investigation of Certain Hot-Rolled Carbon Steel Products from the Netherlands, the United States asserts that it has complied with the recommendations and rulings of the DSB by providing offsets for non-dumped sales when it recalculated the margin of dumping in the Section 129 determination. As a result of the Section 129 determination, the antidumping duty order was revoked effective 23 April 2007. Moreover, as a result of a subsequent Commerce determination in a sunset review, the revocation of the antidumping duty order became effective as of November 29, 2006. All cash deposits made on imports occurring on or after 29 November 2006 have been or will be refunded. Additionally, imports made on or after 29 November 2006 are not subject to any final assessment of antidumping duties. Thus, the United States submits that the EC's claims concern a measure that is no longer in effect.285

3. Whether the United States failed to put into effect new measures between 9 April and 23 April/31 August 2007

(a) European Communities

5.121.
The EC submits that it is not contested that the United States was late in its implementation. The European Communities seeks findings from the Panel also on this point. The EC notes that the Appellate Body has made clear that it is for the complaining Member to judge whether or not dispute settlement may be fruitful. In this case, the European Communities observes that it remains of the view that the findings it seeks may have autonomous consequences in US municipal law.286
5.122.
The European Communities notes that the measures adopted by the United States to comply with the DSB's recommendations and rulings concerning the "as applied" violations, i.e.,the Section 129 Determinations, entered into force on 23 April and 31 August 2007. However, the parties had agreed on a reasonable period of time which ended on 9 April 2007. This allows the United States to still collect duties which refer to a period of time where compliance should have been achieved.287
5.123.
Article 21 of the DSU requires WTO Members to comply immediately with the recommendations of an adopted DSB report. In particular, Article 21.1 of the DSU states that "[p]rompt compliance with the recommendations and rulings of the DSB is essential in order to ensure effective resolution of disputes to the benefit of all Members" (emphasis added). Article 21.3 of the DSU also highlights that "[i]f it is impracticable to comply immediately with the recommendations and rulings, the Member concerned shall have a reasonable period of time in which to do so" (emphasis added). In this respect, WTO Members must bring their measures found inconsistent with their obligations immediately after the date of adoption of the DSB report or, should a reasonable period be agreed between the parties to the dispute, at the end of such a period at the latest.288
5.124.
Since the United States manifestly failed to do so with respect to the "as applied" violations found in the original dispute, the European Communities considers that the United States violated Articles 21.3 and 21.3(b) of the DSU when failing to adopt new measures between 9 April and 23 April/31August 2007.289
5.125.
The European Communities requests this Panel to make an explicit finding that no measure taken to comply existed at all during the mentioned period of time. This is different from a finding on the existence or consistency with a covered agreement of measures taken to comply "at the end of the reasonable period of time" in addition to a finding on the existence of a measure taken to comply "as of the date of the establishment of a panel". In other words, the European Communities is not asking the Panel to rule on the existence of measures taken to comply "at the end of the reasonable period of time", i.e.,on 9 April 2007. In contrast, the European Communities wants the Panel to declare that no measure taken to comply existed between 9 April 2007 and 23 April/31 August 2007. A similar finding of non-compliance in past periods was made by the panel in Australia – Salmon (21.5).290
5.126.
The European Communities notes that the United States opposes the request for a specific finding by the European Communities that, since the United States did not take new measures between 9 April 2007 (i.e.,the end of the reasonable period) and 23 April/31 August 2007 (when all the Section 129 Determinations were completed and entered into force), it failed to comply with the DSB's recommendations and ruling in a timely manner and, thus, violated Articles 21.3 and 21.3(b) of the DSU. In particular, it argues that Articles 21.3 and 21.3(b) of the DSU do not impose obligations on Members.291 The European Communities argues that a careful reading of Article 21 of the DSU implies that WTO Members must bring their measures found inconsistent with their obligations immediately after the date of adoption of the DSB report or, should a reasonable period be agreed between the parties to the dispute, at the end of such a period at the latest.292 The European Communities considers that unlike in US – Upland Cotton (21.5), in this case the European Communities is not asking the Panel to rule on the existence of measures taken to comply "at the end of the reasonable period of time", i.e.,on 9 April 2007. In contrast, the European Communities wants the Panel to declare that no measure taken to comply existed between 9 April 2007 and 23 April/31 August 2007. The EC's request is similar to the one made by Canada in Australia – Salmon (21.5), which was granted by the panel.293
5.127.
Finally, the European Communities argues that the United States seems to agree with its observation that the Panel should refrain from entering into the analysis of the effects of its report in the US municipal law jurisdiction. The European Communities considers that the Panel is called upon to interpret Article 21.3 of the DSU and infer the necessary consequences from the facts of this case.294
5.128.
The European Communities argues that it has shown that the United States failed to take new measures to comply with the DSB's recommendations and rulings in the original dispute before the end of the reasonable period of time (i.e.,9 April 2007) and the United States has not contested that imports subject to anti-dumping duties in the original proceeding made between 9 April 2007 and 23 April/31 August 2007 must pay duties based on zeroing. The European Communities asks a specific finding from this Panel on this issue, again, showing that this cannot be immediate compliance.295 The European Communities considers that, by failing to put into effect the measures taken to comply between 9 April and 23 April/31 August 2007, the United States violated Articles 21.3 and 21.3(b) of the DSU, and failed to comply with the DSB's recommendations and rulings.296 In light of the foregoing, the European Communities submits that the United States has not complied with the DSB's recommendations in the original proceeding and, thus, remains in violation of Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994, since it continues collecting anti-dumping duties and establishing new cash deposit rates based on zeroing with respect to the original investigations and administrative reviews as described in the original dispute.297
5.129.
In conclusion, the European Communities requests the Panel to make an explicit finding on this matter since there are entries which have not yet been liquidated by the United States. Such a finding may lead the relevant authorities to stop proceedings for collection of duties and, thus, is of relevance to the effective resolution of the present dispute.298 In light of the foregoing, the European Communities considers that the United States has failed to show that it has complied with the DSB's recommendations and ruling in the original dispute.299

(b) United States

5.130.
The United States understands the EC to claim that the United States breached Article 21.3 and Article 21.3(a) by implementing its measures taken to comply on April 23, 2007, two weeks after the conclusion of the reasonable period of time. However the United States argues, the EC fails to explain how US implementation of the recommendations and rulings of the DSB constituted a breach of Article 21.3 or Article 21.3(a).300 The United States argues that contrary to the EC's assertion, the report in Australia – Salmon does not support the EC's position. That panel simply concluded that the measures taken to comply did not exist at the end of the reasonable period of time. The panel made no finding that Australia had breached Article 21.3, or any of its subparagraphs, as a result. By contrast, the United States does find support for the futility of such a finding in the report in US – Upland Cotton (21.5). There, the panel explained that a finding of a breach of Article 21.3 would "be of little relevance to the effective resolution of disputes."301
5.131.
In light of the above, the United States submits that this Panel should decline to make the suggestion requested by the EC. It observes in this context that a Member retains the right to determine the manner of implementing DSB recommendations and rulings. The question in this proceeding is the existence or consistency of the measure taken to comply, not what future actions the United States should take to ensure compliance.302
5.132.
The United States reiterates that there is no textual basis for the EC's claim of a breach of Article 21.3. The EC has continued to fail to explain the textual basis for its claim. The EC asserts that Article 21.3 "requires WTO Members to comply immediately with the recommendations of adopted DSB reports." Article 21.3 does no such thing. Indeed, Article 21.3 acknowledges that immediate compliance may be impracticable and thus confers a right on the responding Member to a reasonable period of time.303 The United States observes that the EC's reliance on Australia – Salmon (21.5) is of no help in this regard. The panel in that dispute did not find a breach of Article 21.3, which is what the EC is requesting here. In that context, the EC's attempt to distinguish US – Cotton Subsidies (Article 21.5) (Panel) is unavailing. The panel in that dispute squarely rejected the claim the EC is advancing here: a breach of Article 21.3.304

D. VIOLATIONS WITH RESPECT TO SPECIFIC MEASURES (SECTION 129 DETERMINATIONS)

1. Whether there has been a violation in respect of case 11 – Stainless Steel Sheet and Strip in Coils from Italy

(a) European Communities

5.133.
The European Communities considers that the "measures taken to comply" by the United States in this case (i.e.,the Section 129 Determinations relating to the original investigations challenged in the previous Panel proceedings) are inconsistent with its WTO obligations.305 The European Communities submits that the Section 129 Determinations adopted by the United States to bring its measures into conformity violated certain provisions of the Anti-Dumping Agreement and the GATT 1994. In this respect, the European Communities notes that the scope of Article 21.5 proceedings allows for new legal claims against "measures taken to comply". The Appellate Body has already clarified that panels are to review the "totality" of claims relating to the consistency of "measures taken to comply" with the covered agreements (continuing violations, new violations and consequential violations of the covered agreements). Thus, a compliance panel is not limited to examining the consistency of the "measures taken to comply" with the original DSB's rulings and recommendations. The task of a compliance panel is rather to examine the consistency of the measures with "the covered agreements".306
5.134.
The European Communities submits that the United States committed, and then failed to remove, an obvious calculation error when adopting a Section 129 Determination in Stainless Steel Sheet and Strip in Coils from Italy, listed in the Annex to the Panel Request as Case 11.307
5.135.
The Section 129 Determination covered one manufacturer/exporter of stainless steel sheet and strips in coil from Italy, ThyssenKrupp Acciai Speciali Terni S.p.A and ThyssenKrupp AST USA (collectively "TKAST"). Errors were made in the dumping margin calculation by the USDOC in the original less-than-fair value (LTFV) investigation. In particular, the USDOC incorrectly calculated the average unit value of 84 TKAST US sales. The USDOC applied a "facts available" rate to these 84 unreported US sales. The USDOC, in its calculation, erroneously inverted the fraction: instead of dividing total value by total volume, it divided total volume by total value. This error artificially inflated the unit value and, therefore, the amount of dumping found. Despite realising this obvious error, the United States failed to correct it.308
5.136.
The European Communities notes that if, in addition to eliminating zeroing, the United States had corrected this obvious calculation error, the dumping margin would have been negative and, thus, the measure would have been revoked. Thus, as regards this obvious calculation error, the European Communities submits that the United States violated Articles 2, 5.8, 6.8, 9.3, 11.1 and 11.2 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.309
5.137.
The European Communities notes the argument made by the United States that the EC's claim that the USDOC made an error in the calculation of the unit value and then failed to have it removed pursuant to the Section 129 Determination at hand is beyond the scope of this proceeding, since that clerical error is not part of the measure taken to comply with the DSB's recommendations and rulings in the original dispute. It also notes that the United States also maintains that the European Communities has not made a prima facie case since the EC's claims are based on unsupported assertions. Finally, the EC observes that the United States notes that the failure by the USDOC to disregard the allegations of error made by the respondents in that Section 129 Determination is consistent with an investigating authority's right to the orderly conduct of its proceedings. The European Communities submits that these arguments should be rejected.310
5.138.
The European Communities is of the view that the Section 129 Determinations are "measures taken to comply". The United States agrees with this. The European Communities also notes that the scope of Article 21.5 proceedings allows for new legal claims against "measures taken to comply" and, thus, panels are to review the "totality" of claims relating to the consistency of "measures taken to comply" with the covered agreements (continuing violations, new violations and consequential violations of the covered agreements). Consequently, since the existence of the calculation error has not been contested by the United States, and remains in the "measure taken to comply" (i.e.,the Section 129 Determination concerning stainless steel sheet and strip in coils from Italy), it is part of that measure and, thus, may be subject to claims within this Article 21.5 proceeding. Indeed, when the USDOC recalculated the non-zeroed anti-dumping duty for TKAST in the Section 129 proceeding, it repeated exactly the same calculation error (the inversion of the fraction) that it had made in the original investigation. Without this error, the dumping margin for TKAST would have been negative. Therefore, the calculation error in question was actually committed in the Section 129 proceeding, while makes it even clearer that it is part of the "measure taken to comply".311
5.139.
The European Communities argues that even assuming arguendo the US argument that the calculation error is not part of the "measure take to comply", the European Communities considers that it would still fall under the scope of this proceeding. Indeed, measures having a close nexus with the "measure taken to comply" can also fall within the scope of Article 21.5 proceedings. The European Communities observes that the arithmetical error in question artificially inflated the unit value and, therefore, affected the amount of dumping found by the USDOC. In this respect, the error it is part of the calculation exercise carried out by the USDOC when determining the new amount of dumping in the Section 129 Determination. The United States could not recalculate the correct dumping margin without zeroing and bring the measure into compliance if there are basic errors in the data used for this purpose.312 Consequently, the European Communities maintains that EC's claim that the USDOC made an error in the calculation of the unit value and then failed to have it removed pursuant to the Section 129 Determination at hand falls within the scope of this proceeding. The calculation error is part of the new dumping determination, i.e.,the measure taken to comply by the United States in this case.313 On the basis of the above, the European Communities considers that it has sufficiently made a prima facie case that the failure by the United States to correct the arithmetical error pursuant to the Section 129 Determination at hand violates the Anti-Dumping Agreement.314
5.140.
In addition, the European Communities rejects the argument of the United States that, in the Section 129 Determination at hand, the USDOC rejected all claims of errors by all interested parties on the basis of the need for finality of proceedings and for equitable treatment of all parties. The European Communities submits that the USDOC, in this particular case, should have taken into account all claims of errors and, in fact, had enough time to do so.315 It notes that, as the United States confirmed, the Section 129 Determination concerning this case was delayed for four months precisely because the USDOC was examining the claims brought by interested parties. The European Communities explains that the USDOC decided to do so even if the scope of the Section 129 Determination was, allegedly, "limited to recalculate the margins of dumping by applying a methodology without zeroing". However, at the end of the proceeding, the USDOC decided to reject all claims. Thus, contrary to what the United States asserts, the examination of the claims concerning errors made by the USDOC in the calculation of the new margin of dumping was part of the Section 129 proceeding. Moreover, the European Communities notes that the USDOC has taken into account (and corrected) other errors in Section 129 proceedings. Finally, the European Communities submits that the USDOC could not have remained passive and refuse to correct its own mistake. Otherwise, this would imply that clerical errors made by the investigating authorities remain untouchable for interested parties.316 In light of the above, the European Communities submits that the Panel should reject the arguments raised by the United States with respect to Case 11 relating to the arithmetical error.317
5.141.
The European Communities notes that the United States has made several arguments to try to justify the fact that, thanks to an arithmetical error, anti-dumping duties have remained in place as a result of its Section 129 Determination in Stainless Steel Sheet and Strip in Coils from Italy. However, in the EC's view, this Panel should reject those unfounded arguments in order to avoid the abusive application of the Anti-Dumping Agreement by the United States and provide compliance proceedings with effectiveness.318
5.142.
In particular, the European Communities notes that the calculation error is part of the measure taken to comply and, thus, may be subject to claims within this Article 21.5 proceeding. The fact that the USDOC decided, at the last moment, to disregard the claim on the clerical error and stated so in its decision, shows that the error (and particularly the decision to fail to correct it) was part of the measure taken to comply. Further, the European Communities observes that there is an important difference between EC – Bed Linen (21.5) and the case at hand. In the present case, the clerical error affecting the calculation of the normal value is one of the elements included in the set of data necessary to recalculate the correct amount of dumping. In other words, both the error and the zeroing methodology affect the calculation of the dumping margin, which the United States had to "bring into conformity with its obligations". Therefore, it is not possible to separate in the re-determination made by the USDOC pursuant to the Section 129 proceeding one of the elements (i.e.,the normal value) from the rest of the calculation of the dumping margin.319 Moreover, the European Communities has sufficiently made a prima facie case that the failure by the United States to correct the arithmetical error pursuant to the Section 129 Determination at hand violates the Anti-Dumping Agreement.320
5.143.
Finally, the European Communities considers that the United States cannot maintain its anti-dumping duties in force, once it has been alerted repeatedly by the interested parties in the context of the Section 129 Determination, since it is evident that, without the arithmetical error, there is no dumping. Therefore, the United States is ignoring the basic principle that anti-dumping duties can only be levied in order to offset dumping.321 In sum, the European Communities maintains that the Panel should reject the arguments raised by the United States with respect to Case 11 relating to the arithmetical error.322

(b) United States

5.144.
In respect of the EC's claims that in the original investigation of stainless steel sheet and strip in coils ("SSSS") from Italy, Commerce made a calculation error, the United States contends that these claims are made for the first time in this compliance proceeding. Although the EC could have made these claims in the original dispute, it did not. Therefore, the United States submits that the EC's claims are beyond the terms of reference of this proceeding.323 In addition, the United States argues that the EC has failed to make a prima facie case with respect to the claims asserted.324 Moreover, according to the United States, Commerce's decision not to consider the respondent's argument, when raised for the first time in the section 129 proceeding, is fully consistent with an investigating authority's right to the orderly conduct of its proceedings.325
5.145.
The United States observes that, in its rebuttal submission, the EC continues to maintain that the alleged error in question is within the terms of reference of this Article 21.5 panel. Specifically, the EC contends that the alleged error is part of the measure taken to comply because it "was actually committed" in the context of the Section 129 proceeding. Additionally, the EC avers that it has established a prima facie case with respect to its claims, and that the United States could not disregard an "obvious mistake" in the Section 129 proceeding.326
5.146.
The EC's arguments are without merit. As the United States discusses below, the alleged error is an unchanged aspect of the original measure and, therefore, is not a part of the measure taken to comply. Moreover, the EC still has not made a prima facie case with respect to the claims asserted, nor has it put forth any authority to support its contention that the United States could not disregard an "obvious mistake" in the instant proceeding.327
5.147.
As a preliminary matter, the EC advances factual inaccuracies in support of its argument that the alleged error "was actually committed" in the Section 129 proceeding. The only change that Commerce made within the computer program applied to the part of the program that caused the program to disregard non-dumped comparisons. Once that part of the program was changed in a manner consistent with the DSB's recommendations and rulings, Commerce re-ran the program to calculate a revised margin for the respondent.328
5.148.
Commerce made no other changes to the program and made no changes to the sets of data used by the program to calculate the dumping margin. Moreover, to the extent that Commerce had found, in the original investigation, that the respondent had failed to provide information with respect to 84 transactions, the original program included certain information in order to address those transactions, using "the facts available." In the course of the Section 129 proceeding, Commerce made no changes to the program related to these 84 unreported transactions. Thus, to the extent that the EC contends that an error was made with respect to the treatment of these 84 unreported transactions, it is clear that the alleged error was not "actually committed" in the Section 129 proceeding as the EC asserts.329
5.149.
This fact is of critical importance because an unchanged aspect of the original measure is not a part of the measure taken to comply. The Appellate Body's decision in EC – Bed Linen (21.5) (AB) confirms this point.330
5.150.
The EC's alternative argument – that the alleged error is within the scope of this proceeding because it bears a close nexus to the measure taken to comply – is inapposite. In Softwood Lumber, there was an original investigation, which was found inconsistent with the covered agreements. The United States revised the determination relating to the original investigation. Canada argued that a separate measure, an administrative review, constituted a measure taken to comply. For the reasons described above, the Appellate Body concluded that, under those particular facts, the administrative review was within the scope of that Article 21.5 proceeding.331
5.151.
Here, however, there is no third measure. There is the original investigation and the measure taken to comply. Thus, this situation is analogous to Bed Linen, not Softwood Lumber. The EC failed to advance a claim (assuming arguendo that there is a basis in the Antidumping Agreement for such a claim) in the original proceeding, and is using the Article 21.5 proceeding to challenge an aspect of the original measure that was unchanged, and that the United States did not have to change, to bring its measure into compliance. Here, the EC is seeking precisely what it opposed (and the Appellate Body did not permit) in EC – Bed Linen: affording complaining parties a second bite at the apple.332
5.152.
The United States notes that in its first submission, the EC asserted that the United States' failure to address the alleged errors is inconsistent with various Articles of the Anti-Dumping Agreement. Even if, arguendo, this Panel could reach this claim (though for the reasons given in the previous subsection it should not), the EC's claims fail. The United States rebutted the EC's arguments by noting that the EC failed to make a prima facie case with respect to the claims asserted. The EC has not responded to that argument, other than to assert that "the mere text of those provisions reflects the obligations that the United States, by failing to correct the error, has infringed."333 As the United States noted in its first written submission, the Appellate Body has stated that "a prima facie case must be based on 'evidence and legal argument' put forward by the complaining party in relation to each of the elements of the claim." The EC, as the complaining party, bears the burden of coming forward with evidence and legal argument to establish a prima facie case of a violation. A bald assertion that a clerical error breaches a series of provisions is insufficient. Having failed at that task yet again, the United States respectfully requests that this Panel reject the EC's claims.334
5.153.
The EC argues that "obvious mistakes" should have been addressed in the Section 129 proceeding. According to the EC, the United States should have addressed all claims of error and, in fact, had ample time to do so. The EC is offering a test that is not found in the Anti-Dumping Agreement or the DSU – indeed, the EC offers no textual support for its assertion. Moreover, the EC's test would tend to create more problems than it solves. What is an "obvious" mistake? To whom? Why would "obvious" mistakes be exempt from the limitations on compliance proceedings, but "non-obvious" mistakes would not? And if the mistake were "obvious," why did the EC fail to raise it in the original proceedings?335 To support its view that obvious mistakes should be corrected, the EC attempts to demonstrate that the United States has corrected mistakes in the past. The United States maintains that whether the United States has used section 129 proceedings to correct mistakes is not germane to the question at hand, which is whether the United States – or any other responding party – is obligated to do so.336

2. Whether there has been a violation in respect of cases 2, 4 and 5 – Stainless Steel Bar from France, Italy and the United Kingdom ("all others" rate)

(a) European Communities

5.154.
The European Communities submits that in the Section 129 Determinations adopted by the United States in the Cases listed in the Annex to the Panel Request as 2, 4 and 5, the United States established new duty levels based on an unjustified increase in the "all others" rates.337 In two of the cases, Stainless Steel Bar from France and Stainless Steel Bar from the United Kingdom, the Section 129 Determination led to the revocation of the order for Ugitech and Corus respectively and created a situation where all the company-specific dumping margins were either zero/de minimis or based on adverse facts available. In both cases, the USDOC changed the "all others" rate (previously equivalent to the "zeroed" rate of Ugitech and Corus) to a simple weighted average of the zero/de minimis and adverse facts available rates. This resulted in an astronomic increase in the "all others" rate, from 3.9 per cent to 35.92 per cent in France and 4.48 per cent to 83.85 per cent in the United Kingdom.338
5.155.
In the case of Stainless Steel Bar from Italy, the exclusion of Valbruna and Foroni led to an increase of the "all others" rate from 3.81 per cent to 6.6 per cent, following a similar averaging exercise which included an adverse facts available rate.339
5.156.
The European Communities observes that the above situations have come about because the USDOC, following the provisions of Article 9.4 of the Anti-Dumping Agreement, had originally based the "all others" rate on the highest dumping margin for a co-operating exporter, thus excluding zero/de minimis margins and margins based on facts available from the calculation. Once the impact of zeroing was removed in the Section 129 proceeding, all co-operating exporters had zero or de minimis margins. Thus, USDOC had to find another basis for setting the "all others" rate. The method it chose led to the steep increases described above. The European Communities submits that such increases in the "all others rate" are unreasonable and inconsistent with Articles 9.4 and 6.8 of the Anti-Dumping Agreement.340
5.157.
According to the European Communities, in the three cases concerned, the United States had originally used a methodology consistent with Article 9.4 of the Anti-Dumping Agreement. In contrast, when carrying out the Section 129 Determinations, in the absence of any remaining co-operating exporters with a dumping margin above de minimis, not only did the United States use margins based on facts available, but also zero/de minimis margins (i.e.,the new ones calculated without zeroing). In fact, the United States made a weighted average between the two types of margins to calculate the final "all others" rates. The European Communities considers that this is directly contrary to the text of Article 9.4 of the Anti-Dumping Agreement, as interpreted by the Appellate Body.341
5.158.
In addition, the European Communities argues that, basing the "all others" rate on adverse facts available rates also violates Article 6.8 and Annex II of the Anti-Dumping Agreement. Indeed, the method applied by the USDOC to calculate the "all others" rate in practice moves from a situation where the "all others" rate is based on "facts available" (i.e.,the highest rate for a co-operating exporter) to one where it is largely based on "adverse inferences" (i.e.,a rate for an exporter which has failed to "act to the best of its ability to comply with a request for information"). By basing the rate on adverse facts available, the USDOC effectively determined that exporters subject to the "all others" rate were guilty of behaviour that would warrant the application of adverse inferences and has put them in the same basket as firms which are alleged to have actively impeded the investigation, without demonstrating that such treatment is appropriate.342
5.159.
The European Communities notes that the United States asks the Panel to reject the EC's claim concerning the Section 129 Determinations on Stainless Steel Bar from France, Italy and the United Kingdom because the original anti-dumping orders were revoked and, thus, the measures are no longer in place. Moreover, the United States maintains that the European Communities has failed to demonstrate that the calculation of the "all others" rates from the Section 129 Determinations was inconsistent with the Anti-Dumping Agreement. The European Communities submits that the US arguments should be rejected in light of the following reasons.343 First, as the United States points out, pursuant to sunset reviews of the anti-dumping duty orders on Stainless Steel Bar from, inter alia, France, Italy and the United Kingdom, the USITC found that the revocation of the orders would not be likely to lead to the continuation or recurrence of material injury to the domestic industry. Thus, on 7 February 2008 the USDOC revoked the original order. However, this revocation is not final and conclusive because, under US law, interested parties may challenge the USITC's determination within 30 days after the publication of the notice in the Federal Register. Should the appeal be successful, the measure would be reintroduced. Therefore, the European Communities considers that the Panel should examine the conformity of this measure with the Anti-Dumping Agreement and the GATT 1994.344 Second, the European Communities observes that the fact that a challenged measure is no longer in effect, of itself, does not necessarily prevent the Panel from assessing that measure, even though it may affect the Panel's rulings in connection with implementation. The European Communities recalls that several panels have indicated their willingness to examine and make findings regarding measures that have already expired or allegedly expired. The European Communities argues that this approach is necessary in order to provide a positive solution to the dispute, and to prevent the purpose of the dispute settlement system from being defeated.345 Third, the European Communities contends that it has demonstrated that the calculation of the "all others" rates from the Section 129 Determinations is inconsistent with the Anti-Dumping Agreement, having sufficiently addressed this issue in its First Written Submission.346 In light of the above, the European Communities submits that the Panel should reject the arguments raised by the United States with respect to Cases 2, 4 and 5 relating to the unjustified increased of "all others" rates.347
5.160.
The European Communities observes that it has explained in its submissions how the significant increase of "all others" rates (sometimes even almost twenty times higher that the original "all others" rates") as a result of the Section 129 Determinations in the cases concerning Stainless Steel Bar from France, Italy and the United Kingdom violates Articles 9.4 and 6.8 of the Anti-Dumping Agreement. The United States has not contested these claims.348
5.161.
As for the revocation of the original orders, the European Communities requests this Panel to continue with its analysis of consistency of all the measures challenged in this proceeding with the Anti-Dumping Agreement and the GATT 1994, regardless of whether the original anti-dumping orders have been revoked or not. Otherwise, it would need to come back to a new panel to discuss the same issue and, thus, a positive solution to the dispute on this point would have to wait. This cannot be the purpose of the dispute settlement system which, according to Article 3.2 of the DSU, must provide "security and predictability" and serves to "clarify the existing provisions" of the covered agreements.349
5.162.
As regards the observation made by the United States that the EC's arguments are result-oriented, the European Communities adds that the situation is rather the contrary. It is the United States which is seeking to artificially increase the "all others" rates, in disregard of its obligations contained in Articles 9.4 and 6.8 of the Anti-Dumping Agreement. If the United States finds it difficult to justify its duties on the basis of the Anti-Dumping Agreement, it might well be, as the European Communities has suggested, that the only WTO-consistent solution available for the United States is that the level of "all others" rate should be zero. Yet it should not be forgotten that this situation arose because the anti-dumping duties for the major exporters, as selected by the United States in the original investigation, were revokedafter zeroing was eliminated from the calculation. Should the United States have disregarded those companies at the very beginning of the original investigation (because dumping would not have been found without zeroing), the United States could have selected other sources of information in order to calculate the "all others" rates.350 Consequently, the European Communities submits that it has demonstrated that the calculations of the "all others" rates in the Section 129 Determinations in question are inconsistent with Articles 9.4 and 6.8 of the Anti-Dumping Agreement, and that the United States has not rebutted this claim.351

(b) United States

5.163.
The United States first submits that the EC's claims regarding the Section 129 determinations on Stainless Steel Bar from France, Germany, Italy and the United Kingdom should be rejected because these claims concern measures that are no longer in effect. Commerce revoked the orders covering Stainless Steel Bar from France, Germany, Italy and the United Kingdom effective as of 7 March 2007.352
5.164.
The United States observes in this context that the Section 129 determinations, which resulted in a change to the all others rates, became effective on April 23, 2007. Thus, imports made on or after 23 April 2007, from exporters or producers who did not have their own cash deposit rate were subject to the posting of a cash deposit at the new all others rate. However, the revocation of the antidumping duty orders on Stainless Steel Bar from France, Italy and the United Kingdom became effective as of 7 March 2007. Pursuant to this revocation, the United States will refund any cash deposits posted on imports of stainless steel bar from these countries made on or after 7 March 2007 and those imports will not be subject to any final assessment of antidumping duties. Alternatively, the EC also has failed to demonstrate that the calculation of the all others rates from the Section 129 determinations was inconsistent with the Anti-Dumping Agreement.353
5.165.
Despite the revocation of the antidumping duty orders covering Stainless Steel Bar from France, Italy and the United Kingdom, the EC persists with its claim against the "all others" rate resulting from Commerce's Section 129 determinations. The United States argues that the EC's claim continues to be unfounded.354
5.166.
The United States explains that consistent with Article 6.10, in the original investigations Commerce limited its examination to the largest percentage of the volume of the exports from the country in question which could reasonably be investigated. Commerce then calculated an all others rate to apply to imports from those exporters or producers who did not have their own margin of dumping, consistent with Article 9.4. In the Section 129 Determinations, Commerce recalculated the rates for the selected respondents as well as the all others rate. For the three stainless steel bar determinations challenged by the EC, each of the margins of dumping Commerce calculated were either zero or de minimis, or based on facts available. Article 9.4 does not address this situation, and Commerce determined the simple average of the margins of dumping calculated in each of the Section 129 Determinations to establish the all others rate for that determination.355 The United States notes in this regard that the EC's contention here is not with the reasonableness of the methodology Commerce employed. Rather, the EC's arguments are results-oriented, pointing to the fact that the resulting all others rates were higher than those calculated in the original investigations. Should the Panel reach this claim, which it need not, the United States argues that the EC has failed to demonstrate that Commerce acted inconsistently with Articles 6.8, 6.10 or 9.4 of the Anti-Dumping Agreement, and the Panel should so find.356
5.167.
According to the United States, the EC contends that under Article 9.4 of the Anti-Dumping Agreement, the United States could not use zero or de minimis margins or margins based on facts available in calculating the new all others rate. This is despite the fact that these were the only margins remaining after Commerce recalculated the margins of dumping to implement the DSB's recommendations and rulings.357 The EC contends that its alternative methods would be consistent with WTO obligations. Namely, the EC argues that Commerce could have continued to use the original all others rates. The EC, however, ignores the inconsistency of its own argument. The EC originally challenged Commerce's determinations in these investigations because Commerce did not grant offsets for the non-dumped sales. The original all others rates were based on the very margins of dumping challenged by the EC. Following the EC's logic in the original dispute, therefore, the original all others rates were tainted with the same inconsistencies present in the challenged margins of dumping. Accordingly, when implementing the DSB's recommendations and rulings, Commerce could not simply use those same all others rates.358
5.168.
The United States observes indeed that, had Commerce used the original all others rates, as advocated by the EC in this dispute, and had an average of zero or de minimis margins and margins based on facts available resulted in lower all other rates, the United States anticipates that the EC would have claimed that the use of the original all others rates was inappropriate as the underlying margins were tainted with "zeroing." The EC's arguments in this dispute are thus clearly results-oriented, and not based on the obligations found in the Anti-Dumping Agreement.359

3. Whether there has been a violation in respect of cases 2, 3, 4 and 5 – Stainless Steel Bar from France, Germany, Italy and the United Kingdom ("injury")

(a) European Communities

5.169.
The European Communities observes that pursuant to the Section 129 Determinations concerning Cases 2 to 5 listed in the Annex to the Panel Request, the United States recalculated the dumping margins without zeroing and found that some exporters were not dumping or had de minimis dumping margins. However, in those cases the United States maintained the anti-dumping duties without establishing (i) whether the remaining amount of dumped imports was causing injury to the domestic industry, and (ii) whether this volume of dumped imports was not negligible. In particular, the United States disregarded the fact that, after the recalculation of duties without zeroing, on average around 75 per cent of the volume of imports which had been considered as dumped, could no longer be considered as dumped. The European Communities submits that this is inconsistent with Articles 3.1, 3.2, 3.5, 5.8 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994.360
5.170.
The European Communities notes that the United States argues that the EC's claim concerning the Section 129 Determinations on Stainless Steel Bar from France, Germany, Italy and the United Kingdom should be rejected because the original anti-dumping orders were revoked and, thus, the measure is no longer in place. In this respect, the European Communities refers the Panel to the arguments made in Section IV.2(a) of its Rebuttal Submission, arguing that the Panel must continue with its analysis of consistency of all the measures challenged in this proceeding with the Anti-Dumping Agreement and the GATT 1994, regardless of whether the original anti-dumping orders have been revoked or not.361
5.171.
The European Communities further notes that the United States is of the view that the European Communities made the same claim in the original proceeding, but the Panel in the original dispute declined to consider it. Thus, the United States argues that such claims are not within the terms of reference of this proceeding. The European Communities observes in this respect that the United States has not based this argument on any legal claims or provisions of the DSU. Nor have the United States referred to the specific documents where the European Communities made such claims in the original proceeding. Thus, the Panel should reject it as unfounded.362
5.172.
In any event the European Communities maintains, that, should the Panel examine the argument raised by the United States on this point, the claim concerning the failure to reassess the injury in the Section 129 Determinations concerned refers to new measures (i.e.,measures taken to comply) and, thus, new claims can be made against them.363 In light of the foregoing, the European Communities submits that the Panel should reject the arguments made by the United States against the violations identified by the European Communities with respect to the Section 129 Determinations covered in this proceeding.364
5.173.
The European Communities observes that it has extensively argued that the US failure to reassess injury when, after the recalculation of duties without zeroing, on average around 75 per cent of the volume of imports which had been considered as dumped could no longer be considered as dumped, is inconsistent with Articles 3.1, 3.2, 3.5, 5.8 of the Anti-DumpingAgreement and Article VI:1 of the GATT 1994.365
5.174.
The European Communities argues that the claims made by the European Communities with respect to the Section 129 Determinations at issue are not "dependent claims" as the United States has characterised them. They relate to new measures (i.e.,the Section 129 Determinations), against which new claims can be made, and with respect to which the European Communities is asking for a finding from this Panel.366
5.175.
In addition, the European Communities notes that the Panel in the original dispute did not reject the EC's claims, as the US pretends to argue; rather, the Panel exercised judicial economy since the EC's claims were consequential of the violation when calculating the dumping margin. In this respect, it is worth remembering that, in US – OCTG (Sunset Reviews) (21.5), the Appellate Body held that a claim relating to an aspect of a measure on which the panel in the original proceeding had exercised judicial economy was properly within the scope of Article 21.5 of the DSU. Therefore, the EC's claim in the present case is equally properly before this Panel.367
5.176.
Thus, the European Communities requests a finding that the United States violated Articles 3.1, 3.2, 3.5 and 5.8 of the Anti-Dumping Agreement and Article VI:1 of the GATT1994 when failing to reassess the injury in light of the new volume of non-dumped imports in the Section 129 Determinations concerned.368
5.177.
As regards the Section 129 Determinations specifically challenged in this proceeding, the European Communities requests this Panel to find that the calculation error, the unjustified increase in "all others" rates and the failure to reassess injury amount to violations of the Anti-Dumping Agreement and the GATT 1994. Even if the United States has revoked some of these measures, it is vital for a proper solution to this dispute, including the correct interpretation of the relevant provisions of the Anti-Dumping Agreement and the GATT 1994, that this Panel provides a clarification of the relevant rules. Otherwise, nothing would prevent the United States from infringing the rules again in new anti-dumping measures. In fact, a lack of a ruling on this issue would allow the United States to introduce WTO inconsistent measures at one point, wait for a challenge brought by a WTO Member, wait for the panel proceedings to be initiated and then modify the measure at the last minute, in order to prevent a negative finding. Again, this would set a bad example not only applicable to compliance cases, but to the dispute settlement system in general.369

(b) United States

5.178.
The United States asserts that the Panel should reject the EC's contention that the United States acted inconsistently with the Anti-Dumping Agreement and GATT 1994 by maintaining the orders with respect to Stainless Steel Bar from France, Germany, Italy and the United Kingdom without reconsidering the issue of injury after the Section 129 Determinations found that some of the exporters originally investigated were not dumping because it concerns measures that are no longer in effect.370 The United States clarifies that pursuant to the sunset reviews, it revoked the orders on Stainless Steel Bar from France, Germany, Italy and the United Kingdom effective March 7, 2007. Thus, contrary to the EC's contention, the United States no longer maintains antidumping duties on products subject to these orders. Indeed, the revocation is effective more than one month prior to the end of the reasonable period of time. The United States observes that it will refund the cash deposits on any imports occurring on or after March 7, 2007. Additionally, these imports will not be subject to any final assessment of antidumping duties in the future.371
5.179.
As a procedural matter, the United States notes that the EC asserted these claims in the original proceeding, and the original panel declined to consider them. Should the EC pursue these claims even though the order has been revoked, the United States reserves its right to request a ruling from the Panel that such claims are not within its terms of reference.372
5.180.
The United States notes, with respect to the EC's claims involving injury, that the EC has failed to demonstrate that these claims are within the terms of reference of this proceeding. The United States considers that the EC, by including a brief statement that its claim "refers to new measures (i.e.,measures taken to comply) and, thus, new claims can be made against them," the EC, however, is not making "new claims", instead trying to resuscitate failed claims from the original dispute. The United States recalls that the Appellate Body has clarified that "adopted panel and Appellate Body reports must be accepted by the parties to a dispute" and compliance bodies will decline to revisit original panel and Appellate Body reports that have been adopted and accepted by the parties.
5.181.
The EC raised these claims in the original proceeding, and the original panel affirmatively declined to make findings on them.373 The United States, referring to the EC's First Written Submission, notes that the EC does not dispute this fact. The United States understands that the EC asks the United States to identify where in the original proceeding the EC made these claims. The United States responds by noting that that these claims appear in the corrected version of the EC's original Panel request under Section 3.2, "as applied claims,"374 and that the EC is precluded from pursuing these claims here for two reasons. First, in view of the United States, the original Panel did not find that the United States had breached its obligations with respect to Articles 3.1, 3.2, 3.5, and 5.8. The United States recalls that the Appellate Body noted and did not disturb the original panel's treatment of the injury claims. Thus, the recommendations and rulings of the DSB did not pertain to any findings on these claims, and the United States was under no obligation to take a measure to comply with respect to such claims375 -- the United States cannot be faulted for a failure to comply since there was nothing to comply with.376 Observing that the EC now argues, however, that the United States was in fact obliged to take steps with respect to the injury claims, the United States submits that that argument contradicts the express finding of the original panel that no such steps would need to be taken.377 The original Panel specifically found those claims unavailing, stating it "perceive[d] no need to pronounce on the dependent claims raised by the European Communities" under, inter alia, Articles 3.1, 3.2, 3.5, and 5.8 of the Anti-Dumping Agreement. Because the original panel rejected the EC's injury claims in the original dispute on the basis that addressing them would provide no further guidance to the United States for purposes of implementation, the United States maintains that the EC is precluded from renewing those claims here.378
5.182.
The United States argues that the reasons given by the original Panel for dismissing the claims similarly apply to compel rejection of the EC's reiterated argument here. Now, according to the United States, as in the original proceeding, it is not necessary for the Panel to address dependent claims where the United States has implemented the DSB's recommendations with respect to the violations found. As the original Panel stated, "[d]eciding such dependent claims would provide no additional guidance as to the steps to be undertaken by the United States in order to implement our recommendation regarding the violation on which it is dependent."379
5.183.
The United States also recalls that the orders in question have been revoked. Petitioners appealed the determination that resulted in revocation, but that appeal has been dismissed. Thus, the antidumping duty orders in question no longer exist.380

4. Requests for findings

(a) European Communities

5.184.
The European Communities requests the Panel to make the following findings:381

· the United States violated Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement when extending the measures contained in the original dispute pursuant to sunset review proceedings relying on margin of duties calculated with zeroing;

· the United States has not complied with the DSB's recommendations in the original proceeding, since it continues to collect anti-dumping duties and establish new cash deposit rates based on zeroing with respect to the original investigations and administrative reviews challenged in the original dispute;

· the United States remains in violation of Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994, since it still collects anti-dumping duties calculated with zeroing with respect to measures challenged in the original dispute (including the measures listed in the Annex to the Panel Request and any other subsequent measures);

· the United States has not complied with the DSB's recommendations in the original proceeding, since it has failed to fully revoke the original investigation orders contested in the original dispute;

· the United States has not complied with the DSB's recommendations in the original proceeding, since the 16 administrative review investigations covered in the original dispute have not been superseded (i.e.,the United States still collects duties based on the dumping margins found in those proceedings with zeroing, and the United States has also relied on those margins for the determination of likelihood of recurrence of dumping in sunset review proceedings);

· the United States violated Articles 21.3 and 21.3(b) of the DSU, since it did not take any measure to comply with respect to the "as applied" measures covered in the original dispute between 9 April and 23 April/31 August 2007;

· the United States violated Articles 2, 5.8, 6.8, 9.3, 11.1 and 11.2 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 when making the error in the calculation of the unit value and then failing to have it removed pursuant to the Section 129 Determination in Case 11 of the Annex to the Panel Request;

· the United States violated Article 6.8, Annex II and Article 9.4 of the Anti-Dumping Agreement when using a weighted average of exporters with zero/de minimis rates and adverse facts available to calculate the "all others" rates pursuant to the Section 129 Determinations in Cases 2, 4 and 5 of the Annex to the Panel Request; and

· the United States violated Articles 3.1, 3.2, 3.5 and 5.8 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994 when failing to reassess the injury in light of the new volume of non-dumped imports pursuant to the Section 129 Determinations in Cases 2, 3, 4 and 5 of the Annex to the Panel Request.382

5.185.
The European Communities also requests the Panel to find that its composition was not consistent with Articles 21.5 and 8.3 of the DSU.
5.186.
The European Communities considers that, since the United States has failed to comply with its obligations, the original recommendations of the DSB remain in effect, and apply to the full extent of the findings requested above. Thus, the European Communities requests this Panel to confirm its previous recommendation, pursuant to Article 19 of the DSU, that the United States takes the steps necessary to bring its measures into conformity with the cited WTO provisions.383
5.187.
In the European Communities' view, the Panel should suggest that, in order to comply with the DSB's recommendations, the United States cease using zeroing when calculating dumping margins in any anti-dumping proceeding with respect to the measures challenged in the original dispute and any other subsequent amendments of those. This suggestion will be appropriate to help promote the resolution of the dispute.384
5.188.
The European Communities clarifies that it is not requesting retrospective application of DSB's recommendations and finding in this case. However, the European Communities asks for prospective implementation of the DSB's recommendations after the end of the reasonable period. In particular, the European Communities is of the opinion that the United States should stop taking any positive acts providing for the final payment of duties or retention of cash deposits based on zeroing with respect to those entries not finally liquidated before the end of the reasonable period. In other words, the United States (i) should not send new assessment instructions based on zeroing with respect to the measures covered by this dispute; (ii) should not establish new cash deposit rates based on zeroing in those cases; and (iii) should terminate all proceedings seeking to collect duties based on zeroing after the end of the reasonable period in cases where there is no final liquidation. Finally, the United States should reverse any positive acts taken after the end of the reasonable period which sought the collection of anti-dumping duties or the establishment of new cash deposit rates based on zeroing with respect to the measures successfully challenged in the original dispute.385

(b) United States

5.189.
The United States considers that it has implemented the DSB's recommendations and rulings, and thus has complied with its obligations under the DSU. Thus, the Panel should reject the EC's claims of non compliance and its effort to enlarge the obligations of the United States. The United States also considers that the Panel should decline to make the suggestion requested by the EC. A Member retains the right to determine the manner of implementing DSB recommendations and rulings. The question in this proceeding is the existence or consistency of the measure taken to comply, not what future actions the United States should take to ensure compliance.386

VI. ARGUMENTS OF THE THIRD PARTIES

6.1.
The arguments of the third parties are set out in their written and oral submissions to the Panel, and in their answers to questions. The third parties' arguments, based on the summaries submitted by them pursuant to paragraph 10 of the Panel's working procedures, are set forth in this section. Certain of the third parties made only an oral submission, while others did not make either an oral or written submission, but attended the Panel's meeting with the parties and third parties.387

1. India

6.2.
At the Panel meeting with third parties, India stated that it has strong systemic interests in the interpretation and application of various provisions of the Anti-Dumping Agreement, which individually and collectively, prohibit the utilization of zeroing practice in all proceedings regulated by the Anti-Dumping Agreement.388
6.3.
India considers that the issue of zeroing is of extreme systemic importance to the multilateral trading system. India strongly opposes the practice of zeroing in dumping margin calculations in every comparison methodology under Article 2.4.2 in the original investigations as well as in all kinds of reviews – administrative, interim, sunset. India considers that it is regrettable that the United States continues to apply the zeroing methodology for determining the anti-dumping margins, except in the comparison of weighted-average normal value with weighted average export price during original investigations, despite the fact that the panel and the Appellate Body unequivocally held that the US DOC's application of zeroing in both the original investigations and subsequent reviews constitute violation of relevant provisions of the Anti-Dumping Agreement.389
6.4.
India has strong concerns on the manner in which the US claims to have complied with panel/ Appellate Body rulings in this dispute. The US states in paragraph 50 of the Executive Summary of its First Written Submissions of February 8, 2008 that it has implemented the recommendations and rulings because each of those reviews has been superseded by determinations in subsequent administrative reviews. The US further states that the subsequent reviews examined a wholly different set of sales transactions occurring during a different period of time. Further in these subsequent determinations, Commerce calculated new margins of dumping, and put in place new cash deposits for the companies examined. India disagrees with this argument of the US. Even if the original measures may have been reviewed on different occasions, these are continuation of original measures, the results of the previous review still affect interested parties and subsequent equally critical procedures. The Appellate Body in its report, found that the United States had acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 in the administrative review investigations at issue due to its use of a "simple zeroing" methodology, and reversed Panel's finding to the contrary.390
6.5.
India notes that from the US claim of its stated compliance with the rulings in this dispute it seems that there is no discipline for calculating dumping margin in administrative reviews. Whereas, as per Article 9.3, the margin of dumping has to be established as per Article 2 even in the administrative reviews. Therefore, the principle of 'fair comparison' as enshrined in Article 2.4 must apply. Further, the margins are to be established as per the comparison methodology provided in Article 2.4.2. As seems to be the US practice, during the administrative reviews, the US compares the weighted average normal value with individual export transactions (para. 24 of EC's First Written Submissions). In this process of comparison, the US takes into account only those transactions where the margin is positive. Those transactions having negative margins are not taken into account, and thereby assigned 'zero' value.391
6.6.
Article 2.4.2 of Anti-Dumping Agreement lays down the rules for comparison of normal value with export price. The margins of dumping are normally to be established on the basis of a comparison of weighted average normal value with weighted average export price. The third option of W to T comparison of weighted average normal value with individual export transactions can only be used in special circumstances where the authorities find a pattern of export prices which differ significantly among different purchasers, regions or time periods, and if an explanation is provided as to why such differences can not be taken into account appropriately by the use of the other two methodologies of comparison. It seems the third methodology of W to T (weighted average to weighted transaction) comparison becomes the default option by the US during the administrative reviews and by use of this methodology the US tries to justify use of 'zeroing' in the dumping margin calculations in administrative reviews. India would like to request the US delegation to kindly clarify:

· Under which provisions of the Anti dumping agreement, does the US determine the dumping margin in administrative reviews?

· While determining the dumping margin in administrative reviews by using the W to T comparison, does the US follow the principles set out in the provisions of the Article 2.4.2, and if so, does the US provide an explanation in each of its determinations as regards the use of the W to T methodology and why the other two methodologies can not be used?392

6.7.
India has strong systemic concerns on this continuous practice of zeroing, despite the settled jurisprudence by the panel and the Appellate Body that the practice of zeroing is WTO inconsistent. India believes that reliance on previous case law actually flows from the necessity to ensure in any legal system security, consistency and predictability, and therefore, the use of "zeroing", at every stage, either in the original investigations or in reviews of all kinds is impermissible.393
6.8.
To conclude, India believes that the periodic reviews challenged by the EC are closely connected to the original measures that are the subject of the DSB's recommendations and rulings and therefore with in the jurisdiction of this panel.394

2. Japan

6.9.
Japan's reading of the EC's panel request is that the review measures were explicitly "identified" by the EC because they were among the "measures at issue" in these proceedings. Moreover, the EC devoted paragraph 7 of its request to explaining that the reviews specifically identified in the annex were related to the original measures, and involved the continued use of the disputed zeroing methodology. In fact, in that paragraph of its request, the EC described the reviews as being "in question", the very words that the United States says were not used by the EC in connection with these measures.395 Thus, Japan believes that the EC's panel request specifically identified the periodic and sunset reviews that are related to the original measures.396
6.10.
In the original proceedings, the EC successfully challenged a group of 31 anti-dumping measures resulting from 15 original investigations and 16 periodic reviews on the grounds that zeroing had been used in the dumping determinations. In these proceedings, the EC contests, among others, the United States' omission or failure to take steps to eliminate zeroing from certain of these, and other closely related, measures; additionally, the EC challenges the United States' adoption of measures very closely related to the original measures, including periodic reviews, sunset reviews, and measures that impose and collect definitive anti-dumping duties based on inflated dumping margins calculated with zeroing.397
6.11.
The United States argues that these connected measures cannot be subject to Article 21.5 proceedings because they are not "measures taken to comply" with the DSB's recommendations and rulings. Japan's arguments focus on the periodic review measures challenged by the EC.398
6.12.
It is well-established that, Article 21.5 proceedings may concern measures in the form of both acts and omissions. In US – Softwood Lumber IV (Article 21.5), the Appellate Body observed that "[t]he word 'existence' [in Article 21.5] suggests that measures falling within the scope of Article 21.5 encompass not only positive acts, but also omissions."399 Indeed, an Article 21.5 dispute may involve "a combination of both [acts and omissions] in situations where the measures taken to comply, through omissions or other deficiencies, may achieve only partial compliance."400 Thus, the EC is entitled to challenge omissions by the United States to take action to eliminate zeroing from its measures, as well as acts by the United States in adopting measures that involve the further application of zeroing, or measures involving a combination of both.401
6.13.
In one of the very first Article 21.5 proceedings, the Appellate Body observed that "Article 21.5 proceedings involve, in principle, not the original measure, but rather a new and different measure which was not before the original panel."402 In other words, compliance proceedings normally involve a measure that is separate and distinct from the original measure, and that was not the subject of the DSB's recommendations and rulings.403 The panel report of Australia – Salmon (Article 21.5)404 and the rulings of the panel and Appellate Body in US – Softwood Lumber IV (Article 21.5)405 also contradicts the United States' arguments. As will become clear below, the two measures in US – Softwood Lumber IV (Article 21.5) stood in virtually the same relationship to each other as do the original and subsequent reviews challenged by the EC in these proceedings.406
6.14.
In US – Softwood Lumber IV (Article 21.5), the Appellate Body emphasized that Article 21.5 establishes an "express link" between the measures covered by Article 21.5 and the DSB's recommendations and rulings.407 Accordingly, in determining whether particular measures are covered by Article 21.5, a compliance panel is to examine whether a close relationship exists between those measures, and the measures subject to the DSB's recommendations and rulings. In conducting this analysis, the Appellate Body held that a panel must examine the "connection" between the measures challenged under Article 21.5 and the original measures using what was described as a "nexus-based test".408 As part of that test, an Article 21.5 panel is to examine the "nature" or "subject matter"409 of the measures to establish whether the measure(s) challenged in Article 21.5 proceedings and the original measure(s) have a connection in terms of their substance. With respect to the "nature" and "subject matter" of the measures, US – Softwood Lumber IV (Article 21.5) is highly instructive for these proceedings.410
6.15.
In terms of the "nature" and "subject matter", Japan argues that the links between the original and subsequent measures are virtually the same as those that led the Appellate Body, in US – Softwood Lumber IV (Article 21.5), to conclude that a subsequent periodic review was subject to the Article 21.5 proceedings. In particular:

§ the original measures and the subsequent periodic reviews all resulted from anti-dumping proceedings conducted by the USDOC;

§ these measures all involved that authority's determination of the dumping margin;

§ in any given group of measures (identified in the annex to the EC's panel request by numbered rows), the subject product is always identical;

§ in any given group of measures, the exporter is always identical (identified in the annex to the EC's panel request in the fifth column);

§ any given group of measures is adopted pursuant to the same anti-dumping order; and,

§ for any given order, the measures provide succeeding bases for the continued imposition of anti-dumping duties on the subject product, with each new measure replacing the cash deposit rate of the previous measure, and determining the definitive duty rate for entries initially subjected to the cash deposit rate of the previous measure.411

6.16.
Japan considers that another important parallel between this dispute and US – Softwood Lumber IV (Article 21.5) is that this dispute also concerns "a specific component" of the original measures and the subsequent periodic reviews challenged under Article 21.5; and in both disputes, the specific component concerns a calculation methodology applied by the USDOC.412 The word chosen by the United States – "superseded" – expresses clearly that the challenged periodic reviews are substantively linked, creating an unbroken chain of measures in which the newest measure supersedes the previous one.413 In this dispute, the connections between the original and the subsequent periodic reviews are extremely close indeed. The measures constitute an unbroken chain that provides succeeding legal bases for the continued impositionof anti-dumping duties on the same product and the same exporters, under the same order, and, with respect to each measure, the dispute concerns same "specific component", namely the application of the zeroing methodology.414
6.17.
In sum, Japan asserts that the case-law shows that a series of closely linked measures adopted over time – starting with the original measures, continuing with measures adopted during consultations415, the original proceedings416, and into implementation417 – may all relate to "fundamentally the same 'dispute'",418 and all be subject to the DSB's recommendations and rulings in that dispute, provided they are substantively the same.419 As Japan has explained, the periodic reviews that the EC challenges in these proceedings constitute just such a chain of inter-connected measures. Each measure is, in its essence, precisely the same as the previous "superseded" measure with respect to "the specific component"420 that is disputed. The original measures and the measures challenged in these compliance proceedings all concern the application of the same zeroing methodology to the same products and the same exporting companies, under the same anti-dumping order, and they provide succeeding bases for the continued imposition of anti-dumping duties under that order.421
6.18.
Japan notes that in this dispute, the United States avers that, because the periodic reviews challenged in the original proceedings have been superseded by subsequent reviews, no further action is required to bring the WTO-inconsistent periodic reviews into conformity with the United States' obligations.422 In Japan's view, as a general matter, inaction by an implementing Member to bring its WTO-inconsistent measure into conformity with WTO law is justified solely in circumstances where the measure at issue is no longer legally operational after the end of the implementation period. In that event, no affirmative action is needed by the implementing Member to prevent the measure from continuing to cause nullification or impairment because, by the end of the RPT, the measure has ceased to have effects, and the result required by Article 19.1 of the DSU has already been achieved.423
6.19.
For Japan, a WTO-inconsistent measure that is still "operational"424 after the end of the RPT continues to cause the nullification or impairment of benefits at a time when the measure must be fully compliant with WTO law. Such a measure must be brought into conformity with the covered agreements to ensure that the nullification or impairment ceases.425 In this dispute, the importer-specific assessment rates in the contested periodic reviews have not expired, been revoked, modified or replaced in a manner that makes them WTO-consistent.426 The rates continue to be inflated as a result of the application of the simple zeroing methodology. Thus, the amount of duties yet to be collected on the basis of these rates continues to exceed the properly determined margin of dumping, which is in violation of Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994. In these proceedings, the issue is whether the contested periodic reviews continue to operate in this fashion after the end of the RPT.427
6.20.
Japan notes that if the United States has already collected the definitive duties, and liquidated an entry, before expiration of the RPT, it cannot be required to undo that action through repayment of the duties.428 However, if at the end of the RPT, the United States has not yet taken action to collect the definitive duties, and liquidate an entry, its future actions in so doing must be based on an importer-specific assessment rate in a periodic review that has been brought into conformity with WTO law. In Japan's view, the United States has omitted to take any action to bring the periodic reviews into conformity with WTO law, and ensure that the importer-specific assessment rate provides a WTO-consistent basis for duty collection after the end of the RPT.429
6.21.
At the Panel meeting with third parties, Japan focused on two issues: (1) the scope of these compliance proceedings with respect to subsequent periodic reviews; and (2) the prospective character of the implementation action sought by the European Communities ("EC").430
6.22.
Japan noted that the United States argues that periodic reviews not expressly addressed by the DSB's recommendations and rulings are outside the scope of these proceedings. Japan asserted it had demonstrated, at length, that this Panel has jurisdiction over these periodic reviews, which were identified in the EC's Panel Request.431 Japan did not repeat its written arguments in its opening statement but highlighted, briefly, several key points regarding the scope of Article 21.5 of the DSU. Japan also notes that the United States has failed to address Japan's written arguments.432
6.23.
Japan observed that the United States argues that the subsequent periodic reviews challenged by the EC are not "measures taken to comply" within the meaning of Article 21.5 of the DSU and, therefore, are outside the scope of these compliance proceedings.433 According to the United States, this is because the reviews in question are "separate and distinct"434 and "[n]one of the[se] other 'measures'... was the basis for a DSB recommendation or ruling."435 The United States requests this Panel to find instead "that the only measures within the terms of reference of this proceeding are the 15 original investigations and 16 administrative reviews" that were the basis of the recommendations and rulings of the DSB.436 However, as Japan demonstrated, there is no support for the United States' arguments.437 On the contrary, Article 21.5 panels and the Appellate Body have specifically found "separate and distinct" measures – that is, measures not challenged in the original proceedings – to fall within the scope of Article 21.5 of the DSU when those measures are closely connected to the original measures.438
6.24.
In the present dispute, Japan has shown that a close connection exists between the subsequent periodic reviews and the original measures that are the subject of the DSB's recommendations and rulings.439 In US – Softwood Lumber IV (Article 21.5), the Appellate Body also concluded that the new measure at issue – that is, the subsequent periodic review – "directly affected" the United States' compliance with the DSB's recommendations and rulings.440 Similarly, the periodic reviews challenged by the EC in the present dispute have a direct effect on the United States' compliance by moving the United States away from compliance with each successive review undertaken under a given anti-dumping order.441
6.25.
Moreover, as Japan explained442, the United States' claim that measures covered by Article 21.5 of the DSU are those "taken in the direction of, or for the purpose of achieving compliance [with the recommendations and rulings of the DSB]"443 is devoid of support. In fact, the Appellate Body reached the exact opposite conclusion in US – Softwood Lumber IV (Article 21.5). Recognizing that Article 21.5 of the DSU provides a mechanism by which to assess compliance, while also accepting that implementing Members may fail to adopt any compliance measures, the Appellate Body concluded that "measures taken to comply" may include measures that move away from, and do not have the objective of achieving, compliance.444 Japan notes that the United States did not respond to Japan's argument in its Rebuttal Submission.445
6.26.
Finally, contrary to the United States' claim, Japan asserts that the timing of the adoption of a subsequent measure is not the decisive criterion in determining whether that measure is covered under Article 21.5 of the DSU. Otherwise, a Member would be able to circumvent Article 21.5 proceedings by adopting new measures, even ones very closed connected to the original measures, prior to the adoption of the DSB's recommendations and rulings. Moreover, as the Appellate Body has emphasized, a measure may be subject to Article 21.5 of the DSU, even though it was not adopted with the intention of complying with the DSB's recommendations and rulings. The crucial consideration is whether, viewed as a whole, sufficiently close links exist between the original measure and the new measure.446 Furthermore, with respect to the facts surrounding the periodic reviews taken before the adoption of the DSB's recommendations and rulings, Japan notes that an important temporal connection exists between these reviews and the recommendations and rulings because, after adoption, the United States issues liquidation instructions and payment notices pursuant to these reviews. Thus, besides the substantive connections already addressed, these measures enjoy important temporal links with the DSB's recommendations and rulings.447
6.27.
In short, as discussed in greater detail in Japan's written submission, the periodic reviews challenged by the EC are closely connected to the original measures that are the subject of the DSB's recommendations and rulings and therefore are within the jurisdiction of this Panel.448
6.28.
According to Japan, the question before the compliance Panel is whether the United States must amend the WTO-inconsistent periodic reviews at issue by the end of reasonable period of time or "RPT" in order to ensure that, after the end of the RPT, any definitive anti-dumping duties are collected pursuant to revised review determinations that are consistent with Article 9.3 of the Anti-Dumping Agreement.449 The United States contends that, on implementation, it was not required to take any action to change the WTO-inconsistent periodic reviews with respect to imports that had occurred before the end of the RPT. As regards these imports, the United States believes that it can collect definitive duties, after the end of the RPT, on the basis of periodic reviews that should have been brought into conformity with WTO law by that time.450 The United States argues that "the text of the GATT 1994 and the Anti-Dumping Agreement confirms that it is the legal regime in existence at the time that an import enters the Member's territory that determines whether the import is liable for the payment of anti-dumping duties."451 In support of this argument, the United States relies on Articles VI:2 and VI:6(a) of the GATT 1994, and Articles 8.6, 10.1, 10.6, and 10.8 of the Anti-Dumping Agreement.452 The United States' reliance on these provisions, however, is misplaced.453
6.29.
In Japan's view, these provisions establish that the importation of goods is an event that triggers potential liability to pay anti-dumping duties. Furthermore, the provisions set forth obligations limiting the retroactive application of an anti-dumping measure. The United States appears to believe that, provided it respects these rules, no other WTO obligations apply to its actions after importation, including the determination of the amount of definitive anti-dumping duties due.454
6.30.
The United States' argument ignores, in particular, Article 9.3 of the Anti-Dumping Agreement, the very provision that the United States was found to have violated. Under that provision, irrespective of the "legal regime", or legal framework, that applies to an individual import on the date of importation, a Member is required to take action, long after importation, to ensure that the amount of definitive anti-dumping duties collected does not exceed the margin of dumping. The mere fact that a Member correctly applies the provisions cited by the United States on importation does not mean that it is liberated from its obligations under Article 9.3 to ensure that the amount of definitive anti-dumping duties collected does not exceed the margin of dumping.455
6.31.
The same holds true on implementation. For these purposes, Japan assumes that, at the time of importation, the United States correctly applied the legal provisions it cites with respect to the entries covered by the WTO-inconsistent periodic reviews at issue. However, by so doing, the United States was not absolved of its duty to comply with other provisions of the Anti-Dumping Agreement, including Article 9.3, when conducting the periodic reviews with respect to those entries. Likewise, having initially failed to comply with Article 9.3, the United States is not exonerated from its duty to bring the periodic reviews into conformity with Article 9.3 simply because, at the time of importation, it respected the provisions it cites.456
6.32.
The existence of the review procedure in Article 9.3, which is always carried out long after importation, demonstrates another fallacy in the United States' argument. To recall, the United States argues that the "legal regime" that applied at the time of importation determines "whether [an] import is liable" for anti-dumping duties, and a Member is not required to change that "legal regime" during implementation.457 The premise of this argument is that altering the "legal regime" that applied at the time of importation would retrospectively "undo" a legal situation definitively fixed on importation.458
6.33.
Japan considers that the United States' argument is wrong. The "legal regime" that applies to an import at the time of importation is merely provisional, and notably does not even include the contested periodic reviews that were adopted, under Article 9.3, long after importation. The United States itself recognizes that, at the time of importation, the importing Member establishes only that an import is potentially liable for duties. Indeed, the United States even argues that, on importation into the United States, no anti-dumping duties are paid, and a cash deposit is paid merely as a form of security, pending the determination and collection of definitive duties some timeafter importation.459
6.34.
Whether the cash deposit is regarded as a security or as anti-dumping duties, Japan agrees with the following statement:

"The United States argues that in no case is assessment – whether at the cash deposit rate or otherwise – conducted at the time of entry, and in all cases the cash deposit collected at the time of entry is a baseline proxy of the amount that may ultimately be assessed, and is never itself the final liability."460

6.35.
In other words, Japan asserts, the United States accepts – as it must – that, at the time of importation, solely a potential liability for duties arises, and this potential liability "is never itself the final liability". Thus, the "legal regime" that applies to an entry at the time of importation is a provisional regime that serves merely as a "baseline proxy" pending the subsequent determination of the "final liability".461 The consequence of the provisional character of the "legal regime" in place at the time of importation is that, at that time, the importing Member does not definitively establish any right to collect a specific amount of anti-dumping duties. Instead, when a periodic review occurs, that right is established much later in the procedure under Article 9.3.462
6.36.
For example, in the United States' system, at the time of importation, a cash deposit is paid for the duties potentially due on the imported merchandise. Only later, in a subsequent periodic review, is the "final liability" established in the importer-specific assessment rate – which may be more or less than the cash deposit rate – and definitive duties are subsequently collected on each import at the importer-specific assessment rate. A WTO-consistent periodic review may even determine that no duties are due on entries that were potentially liable for duties at the time of importation, which leads to a refund of the deposit.463 Thus, a periodic review under Article 9.3 establishes a new "legal regime" that replaces the provisional regime that applied, at the time of importation, pursuant to other provisions of the Anti-Dumping Agreement and the GATT 1994.464
6.37.
As a result, Japan argues, there is a logical inconsistency in the United States' argument. Its excuse for not correcting the WTO-inconsistent periodic reviews is that the provisional "legal regime" that applied on importation as a "baseline proxy" cannot be changed. However, that provisional "legal regime" hasalready been changed by the periodic reviews at issue, which establish the "final liability" for anti-dumping duties.465 Thus, again, the United States' arguments ignore the significance of Article 9.3. First, as noted above, as a matter of law, Article 9.3 imposes obligations on the United States additional to those it cites;466 and second, as a matter of fact, the contested periodic reviews carried out under Article 9.3 hadalready changed the provisional "legal regime" that the United States now argues must be preserved.467
6.38.
Japan, therefore, sees no basis in law or in fact for the United States' argument that the periodic reviews cannot be brought into conformity with WTO law simply because a long-since-changed provisional "legal regime" must be preserved. Indeed, the fact that the United States has already changed the provisional "legal regime" once – when it adopted the contested periodic reviews – demonstrates that the alleged need to preserve the provisional "legal regime" is, in reality, not an impediment to changing the "legal regime" again, by bringing the periodic reviews into conformity with WTO law.468
6.39.
Finally, the "legal regime" in existence at the time of importation is not without significance because it fixes the universe of imports that are potentially liable to anti-dumping duties. Bringing the periodic reviews into conformity with WTO law does not alter that universe – if and when the periodic reviews are brought into conformity with WTO law, the same entries that were potentially liable to duties at the time of importation will continue to be potentially liable to duties following implementation. However, the amount of definitive duties collected on these entries, after the end of the RPT, cannot exceed a WTO-consistent margin of dumping, as required by Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.469 In sum, given the provisional character of the "legal regime" in place at the time of importation, the United States is wrong to suggest that requiring a Member to bring a periodic review into conformity with WTO law by the end of the RPT would change a legal situation definitively fixed at the time of importation.470
6.40.
For Japan, the United States' argument that its implementation obligations apply solely to new entries that occur on or after the end of the RPT produces absurd consequences that nullify the disciplines in Article 9.3 of the Anti-Dumping Agreement.471 By definition, new entries that occur on or after the end of the RPT are not covered by the WTO-inconsistent periodic reviews at issue, which relate solely to past entries. The new entries would necessarily be subject to a new periodic review that, in the United States' view, would have to be challenged in a new WTO proceeding. Yet, if that new review were WTO-inconsistent, the United States contends that no implementation obligations would apply because the new review, by definition, covers entries that occurred before the end of the new RPT.472 In short, the United States' argument creates a "Catch-22" that deprives exporting Members of the protection afforded by Article 9.3: viewed from the perspective of the end of the RPT, a WTO-inconsistent periodic review always relates to past entries, whereas the WTO implementation obligations with respect to that review could apply solely to future entries.473
6.41.
Japan asserts that the consequence of this argument is that an individual "as applied" periodic review is totally immune from the disciplines in Article 9.3. Ignoring the requirements of that provision, a Member could always determine a WTO-inconsistent "margin of dumping" in a review, and there would be no obligation to bring the periodic review into conformity with WTO law because, by definition, the WTO-inconsistent periodic review relates to entries that occurred before the end of the RPT. Implementing the review with respect to future entries would be both impossible and meaningless because these entries are not subject to the review at issue. The United States' circular argument, therefore, eviscerates Article 9.3.474
6.42.
The United States' argument also reduces to a nullity its obligation to bring the WTO-inconsistent reviews into conformity with WTO law. Despite the explicit terms of the recommendations and rulings made regarding the WTO-inconsistent periodic reviews, the United States believes that no action is required with respect to these measures because they relate to past entries.475
6.43.
In Japan's view, the decisive issue in deciding whether the United States must modify the WTO-inconsistent periodic reviews is whether these reviews continue to produce legal effects after the end of the RPT. If a review continues to operate after that date, it must be modified to ensure that it is applied in the future in a WTO-consistent fashion.476 Japan's written submission explains how the importer-specific assessment rate in a periodic review continues to be legally operational until definitive duties are collected, and entries liquidated, on the basis of the review.477 Thus, where the United States collects definitive duties on entries covered by a contested periodic review after the end of the RPT, it does so by applying the importer-specific assessment rate determined in the review478.479
6.44.
Accordingly, Japan considers that with respect to any periodic reviews for which there are unliquidated entries at the end of the RPT, the DSB's recommendations and rulings require the United States to bring the measure into conformity with WTO law to ensure that it is applied in a WTO-consistent fashion after the RPT expires. In short, after the end of the RPT, the United States' subsequent actions taken pursuant to the contested periodic reviews must be WTO-consistent. The United States should have ensured that they were WTO-consistent by re-calculating the importer-specific assessment rate without zeroing by the end of the RPT.480
6.45.
Japan emphasizes that, by correcting the importer-specific assessment rate, the United States would not retrospectively "undo" a legal situation definitively fixed at an earlier time. The EC's claims focus on situations where liquidation had not occurred by the end of the RPT. Prior to liquidation, the United States has not collected any definitive anti-dumping duties. Thus, there is no question of repaying duties that have already been definitively collected on an entry. Nor does the EC seek to reduce retrospectively the cash deposit collected on the entries in question. Instead, the implementation of DSB's recommendations and rulings ensures the WTO-consistency of the United States' future actions in collecting definitive duties for the first time after the end of the RPT.481
6.46.
Concerning the equal footing between the retrospective duty assessment system and the prospective duty assessment system, Japan disagrees with the United States' argument that this interpretation places "retrospective" duty assessment systems at a disadvantage compared with "prospective" systems.482 The same interpretive principles apply to both systems. A periodic review may occur under either system. If that periodic review is found to be WTO-inconsistent, it must be brought into conformity with WTO law to the extent that the review remains legally operational after the end of the RPT. In other words, even in a prospective duty assessment system under Article 9.3.2, once the DSB finds that a final liability determined through this system is inconsistent with certain provisions of the anti-dumping agreement, as long as the entries concerned have not been liquidated at the time of expiration of the RPT, the importing Member is required to re-calculate the margin of dumping and apply this newly calculated margins in the coming liquidation procedures in order to comply with the DSB's recommendation and rulings. In both systems, a periodic review could continue to produce legal effects well after the end of the RPT because, for example, a Member's actions pursuant to that review are delayed by domestic litigation regarding the review.483
6.47.
As Japan described in its third party submission and this oral statement, in order to comply with the DSB's recommendation and rulings concerning the periodic reviews, first, the United States is not allowed to liquidate entries subject to this proceedings with the margins of dumping calculated with zeroing after the end of RPT. Second, the United States was required to take positive actions, i.e.,recalculation of the margins of dumping without zeroing, by the end of the RPT in order to ensure that the USDOC and the USCBP would not liquidate these entries in a WTO inconsistent manner.484

3. Korea

6.48.
Korea observes that it has systemic interests in the interpretation and application of various provisions of the Anti-Dumping Agreement, which, individually and collectively, prohibit the utilization of the zeroing practice in all proceedings regulated by the Anti-Dumping Agreement. Therefore, Korea reserved its third party rights pursuant to Article 10.2 of Understanding on Rules and Procedures Governing the Settlement of Dispute ("DSU").485
6.49.
In Korea's view, although the Appellate Body unequivocally held that the USDOC's application of "zeroing" in both the original investigations and subsequent reviews constitute violation of relevant provisions of the Anti-Dumping Agreement, the United States simply failed to implement the recommendations. The United States resorts to various technical elements of its domestic procedure to avoid the implementation, to delay the implementation as much as possible or to effectively neutralize the effect of the decision of the Appellate Body in the original dispute.486 Korea therefore supports the arguments raised by the EC in its first submission dated 11 January 2008. Korea offers its comments below on certain core issues discussed in the submissions of the disputing parties. For the interest of brevity, Korea only focuses on some key issues in Korea's opinion. This should not be interpreted as Korea approving US positions in other issues omitted in this submission.487
6.50.
Korea notes that, in its decision of April 18, 2006, the Appellate Body held that the utilization of zeroing by the United States Department of Commerce ("USDOC") in challenged administrative reviews constitutes violation of Article 9.3 of the Anti-Dumping Agreement.488 The Appellate Body thus recommended that the United States bring the measure into conformity with its obligations under the Anti-Dumping Agreement. The EC and the United States agreed upon an RPT of 11 months, which ended on 9 April 2007.489
6.51.
Regarding 16 administrative reviews challenged in the original dispute, however, Korea contends that the United States effectively ignored the recommendation of the Appellate Body. The United States now attempts to justify its position by arguing that in each administrative review case, a prior administrative review is superseded by a subsequent review, and that since the administrative reviews challenged in the original dispute do not exist any more, the United States is not required to do anything to implement.490 In Korea's view, however, the US position completely misconstrues the operating mechanism of an administrative review and seriously threatens to undermine the basic purpose of the dispute settlement procedure of the WTO. Such interpretation would make it impossible for a Member, who successfully challenged an administrative review by another Member, to get a viable remedy.491
6.52.
It appears that the United States equates the completion of a new administrative review with the termination of the previous review. In Korea's view, however, that is not the case. Unlike other instances where a measure is terminated, an administrative review does not simply disappear when a new, subsequent review is under way or completed. The results of the previous review still affect interested parties and subsequent, equally critical, procedures.492 For instance, a cash deposit rate (that is, inflated by zeroing) will continue to be applied before it is replaced with a new one, which directly affects foreign respondents and importers of the subject merchandise. Likewise, a zero margin in one review may be combined with previous or subsequent zero margins to potentially lead to revocation of the underlying order.493 A zero or low margin in an administrative review is also an important factor to be taken into account when the underlying order is subject to a sunset review494495
6.53.
Therefore, Korea considers that by all accounts, an administrative review has not been terminated yet simply because there is a new administrative review going on or completed. An administrative review found to be WTO-inconsistent thus equally requires adequate implementation by the losing party irrespective of existence or completion of a subsequent review or reviews.496
6.54.
In Korea's opinion, each administrative review examined in the original dispute constitutes a distinct measure that has not been terminated yet and that has a continuing effect to the foreign manufacturers or importers. By maintaining that the previous reviews have been superseded by subsequent reviews, the United States simply attempts to create a fiction which does not reflect reality. As a matter of fact, as a measure an administrative review can only be terminated when the underlying order is terminated, either through a sunset review, a changed circumstances review or for some other grounds.497
6.55.
Furthermore, Korea contends, the US position would lead to bizarre consequences. If we adopt the US logic, no Member could successfully challenge an administrative review at the WTO dispute settlement procedure or even if the Member is successful, it cannot hope for an effective remedy. Given that an administrative review takes about a year followed by continuing administrative reviews on an annual basis, it is almost certain that there is always a new review going on or completed by the time a panel procedure regarding an administrative review of a Member is completed.498 Thus, it would be like "chasing a ghost" from the perspective of the Member challenging the measure. A challenged measure is always gone or terminated by the time a panel reaches its decision and the Member is required to initiate a new dispute to challenge a subsequent review, which would also be gone by the time that panel reaches its decision. Such being the case, the US position effectively insulates administrative reviews from any meaningful oversight by a panel or the Appellate Body. Given the significant role an administrative plays in the operation of domestic Anti-dumping proceedings of Members and detailed obligations laid out in the Anti-Dumping Agreement relating to administrative reviews, such a position should be flatly rejected.499
6.56.
In the light of the above, Korea requests the Panel to reject the US position that all administrative reviews originally challenged did not require any action on the part of the United States simply because there were subsequent reviews afterwards. Korea requests the Panel to hold that the United States failed to implement the recommendation in this respect.500
6.57.
Korea asserts that for a losing Member to comply with the recommendation of the Appellate Body, the Member must "withdraw" or "eliminate" the measure, or take otherwise comparable action, before the expiration of the RPT. If the challenged measure continues for whatever reason after the lapse of the RPT, the Member has simply failed to comply with the recommendation.501 In the original dispute, the United States agreed to an RPT of 11 months and it ended on 9 April 2007. Therefore, if any aspect of the challenged measure which has been confirmed by the panel and the Appellate Body to be WTO-inconsistent continues after 9 April 2007, it simply constitutes US failure to comply with the recommendation.502
6.58.
In this case, the record evidence proves that the USDOC continued to apply the zeroing practice for original investigations and administrative reviews after 9 April 2007. The United States, therefore, simply failed to implement the recommendation in due course.503 Here again, however, the United States attempts to avoid the required implementation by imposing a technical "timing" element. In its 129 Determinations, the USDOC states that the effect of the Determinations will apply only to entries made on or after the date on which the USTR directs the USDOC to implement an adverse ruling of the DSB (9 April 2007 in this case).504 In other words, as long as particular subject merchandise entered the United States customs territory before 9 April 2007, the merchandise will not be affected by the 129 Determinations and will be subject to model or simple zeroing, even if the liquidation or other consummation of procedures occurs after the date.505
6.59.
Korea considers that what was challenged and found to be WTO-inconsistent in the original dispute was a "measure" called "zeroing." The original dispute was not about dates of entries or any other date for that matter. The United States cannot try to minimize or circumvent the impact of the DSB recommendation by simply establishing an arbitrary entry date deadline.506 In Korea's view, it does not and should not matter when an entry date was for a particular subject product in the current process. What matters instead is whether a challenged measure which was found to be WTO-inconsistent is still maintained even if the RPT has lapsed. As long as the measure continues as of the date of the RPT expiration, the Member has failed to implement the recommendation.507 In this case, the USDOC continues to apply the zeroing methodology for certain original investigations and administrative reviews even after 9 April 2007. This should be dispositive in this inquiry and the Panel should find for the EC for this issue.508
6.60.
Korea argues that in conducting a sunset review, the margins and results of the original investigations and administrative reviews are regarded by the USDOC as key factors in reaching a likelihood determination.509 If applicable margins or results are inflated as a result of the application of zeroing and if the inflated data are then taken into account in a sunset review, such a sunset review also constitutes violation of relevant provisions of the Anti-Dumping Agreement, such as Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement.510
6.61.
In Korea's view, the sunset reviews of the USDOC cannot be separated from previous anti-dumping proceedings. Rather, considering the way it is implemented, sunset reviews are more or less an extension of previous findings or prediction based on previous findings, to the extent the USDOC relies on dumping margins calculated in a prior original investigation or an administrative review as the basis for the sunset review's likelihood determination. Therefore, Korea submits that the violation of these provisions is unavoidable.511
6.62.
Korea considers that despite the Appellate Body's decisions and recommendations to bring its measures into conformity, the United States has simply failed to do so. Nor have the USDOC's 129 Determinations adequately addressed the decisions and recommendations of the Appellate Body. The United States repeatedly attempts to locate loopholes in DSB recommendations and technical requirements in its domestic statutes for an apparent reason: to refuse to accept the decisions of the Appellate Body.512
6.63.
At the Panel meeting with third parties, Korea agreed with the EC that, not only an affirmative action to implement an adverse ruling of the Appellate Body, but also omissions and deficiencies thereof clearly fall under the jurisdiction of an implementation panel. Korea notes that the EC is challenging in this proceeding not only an affirmative action by the United States (i.e.,its Determinations under 129), but also omissions of the United States to take a necessary step to comply with the decisions of the Appellate Body.513
6.64.
Furthermore, what the EC seeks in this proceeding is a prospective remedy. The EC is not asking the Panel to provide a remedy that applies retrospectively. All it points out is that the United States continues to fail to eliminate the zeroing practice at issue after the lapse of the RPT (i.e.,9 April 2007). This clearly constitutes a request for a prospective remedy.514 Korea respectfully submits that for the reasons stated above the Panel should hold that the United States failed to comply with recommendations of the DSB in the original dispute.515

4. Norway

6.65.
As a third party to this dispute, Norway addresses the following issues discussed in the First Written Submission of the EC and United States:

• What measures are included in the scope of this proceeding – in other words – what measures are within the Panel's jurisdiction; and

• The extension of the measures challenged in the original dispute pursuant to sunset review proceedings which relied on dumping margins calculated with the use of zeroing.516

6.66.
Norway notes the EC claims that in addition to the measures that the United States recognizes as being taken to comply, also measures that have confirmed, superseded and replaced the original measures may be included in the scope of the current proceedings.517 The United States, on the other hand, sets out that the EC attempts to "include certain determinations within the terms of reference of this proceeding (…) that are not measures taken to comply".518 In addition, the United States claims that the administrative reviews and the sunset reviews are not properly identified in the Panel request submitted by the EC.519 This point will not be discussed by Norway.520
6.67.
Norway observes that Article 21.5 of the Dispute Settlement Understanding (DSU) determines the scope of a Panel's jurisdiction in compliance proceedings. Panels and the Appellate Body have ruled on the scope of this Article several times, and set out the correct legal interpretation to be given to the provision.521 It follows from the wording of Article 21.5 that both positive acts taken to comply and omissions are covered. The Appellate Body confirmed this in US – Softwood Lumber IV (21.5 – Canada).522 A complaining Member may thus challenge measures that have been adopted to comply with the recommendations and rulings of the DSB ("consistency"), but also lack of such measures ("existence").523 Further, Panels and the Appellate Body have underlined that it is not up to the complaining Member alone to determine what constitute a measure taken to comply. Rather, it is for the panel to make this determination.524 To assist a panel in making a decision on what is a measure taken to comply, the Appellate Body has identified some additional criteria, requiring the panel to scrutinize the relationship between the relevant measures and to examine the timing, nature and effects of the various measures.525
6.68.
The EC claims that the United States after the end of the reasonable period of time continued to take positive acts, including administrative review investigations, assessment instructions and final liquidations, based on zeroing.526 The EC is of the opinion that the Panel may examine these acts as parts of the current proceeding, and it "challenges the omissions by the United States to take the necessary measures to comply in this case".527 The United States disagrees with the view set out by the EC, and contends that none of the subsequent review proceedings and assessment instructions mentioned by the EC are measures taken to comply528
6.69.
As is set out above, both omissions and positive acts are covered by Article 21.5. Any subsequent administrative reviews, assessment instructions and liquidations based on zeroing must in Norway's opinion be viewed as evidencing omissions to comply with the recommendations and rulings by the DSB, and as such be within the Panel's jurisdiction. The United States should after the reasonable period of time have stopped collecting anti-dumping duties calculated with the use of zeroing in connection with any of the measures that were part of the original dispute, as well as in connection with any administrative review of the dumping margins in these cases. The same assessment goes for the contested sunset reviews: The United States was under an obligation to recalculate without the use of zeroing the previous dumping margins, in order to rely in these margins when assessing the likelihood of recurrence of dumping in sunset review proceedings. The omission to do so falls within the Panel's jurisdiction.529
6.70.
The United States argues that the determinations attacked by the EC were not part of the original panel proceeding, and that there consequently are no DSB recommendations and rulings relating to these determinations, and that the determinations cannot fall within the scope of Article 21.5. Regarding this argument, Norway would like to point out that the panel in US – Subsidies on Upland Cotton (21.5 – Brazil) found that even if a measure has not been the subject of DSB's recommendations and rulings in the original proceeding, a "claim relating to a measure that has sufficiently close nexus with the measure taken to comply or with the DSB recommendations and rulings in the original proceeding can be within the scope of Article 21.5.530
6.71.
As mentioned, the Appellate Body has set out three elements – nature, effect and timing – as additional criteria when assessing whether a measure which is not declared by the respondent to be a "measure taken to comply" nevertheless may be characterized as such. In Norway's opinion, a consideration of these three elements with regard to the current case, supports the view that the determinations that constitute the contested omissions must be evaluated as having a sufficiently close relationship with the recommendations and rulings of the DSB to be included in the scope of the proceeding.531
6.72.
As regards nature, there can be no doubt that there exist a clear link between the measures in the original dispute and the contested administrative and sunset reviews. The dumping determinations (with zeroing) that were found to violate the Anti-Dumping Agreement in the original dispute are the ones that are reviewed and continued in the contested reviews. The effect of these administrative and sunset reviews is to continue the violations of the Anti-Dumping Agreement through measures that supersede or replace the measures that were the subject of the original dispute.532
6.73.
Norway would also like to point to the effect of the line of argument set out by the United States: If these determinations were not to fall within the scope of the proceeding, a new panel would need to be started for each administrative review, and when another administrative review superseded the first, another panel would have to be started. This would run counter to the aim of Article 21.5, which is "to promote the prompt compliance with DSU recommendations and rulings and the consistency of "measures taken to comply" with the covered agreements by making it unnecessary for a complainant to begin new proceedings and by making efficient use of the original panelist and their relevant experience".533
6.74.
With regard to the timing element, the United States argues that "determinations made by a member prior to the adoption of a dispute settlement report are not taken for the purpose of achieving compliance and cannot be within the scope of an Article 21.5 proceeding".534 In Norway's view, the timing of a review is not the determining factor when it comes to whether or not it is a "measure taken to comply".535 The important point is rather whether it was completed and/or continued to have effects after the end of the reasonable period of time.536
6.75.
In light of the above, it is Norway's opinion that all measures referred to in EC's First Written Submission fall within the scope of the Panel's jurisdiction as provided for in Article 21.5 of the DSU, including measures that have confirmed, superseded and/or replaced the original measures.537
6.76.
Norway notes that the EC contends that the United States has extended the duration of the measures challenged in the original dispute pursuant to sunset review proceedings concluded partly before and partly after the expiry of the reasonable period of time, by relying on past dumping margins calculated with the use of zeroing in determining the likelihood of dumping in those cases.538 The EC submits that the United States by doing so violated Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement.539
6.77.
Norway contends that the Appellate Body has held that all dumping margins in sunset reviews conducted in accordance with Article 11.3, must conform to the disciplines of Article 2.4. If the margins are calculated using a methodology that is inconsistent with Article 2.4, then this could give rise to an inconsistency not only with Article 2.4, but also with Article 11.3.540 The Appellate Body has confirmed that this also applies where the investigating authority relies on margins calculated (with the use of zeroing) during periodic reviews.541
6.78.
Based on the above, Norway considers that the United States has violated Article 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement by relying on past dumping margins calculated with zeroing, in determining the likelihood of dumping in the sunset review proceedings related to measures challenged in the original dispute.542 Norway respectfully requests the Panel to examine carefully the facts presented by the parties to this case in light of its arguments, in order to ensure a proper and consistent interpretation of the DSU and the Anti-Dumping Agreement.543

VII. INTERIM REVIEW

7.1.
On 12 August 2008, the Panel issued its Interim Report to the Parties. On 9 September 2008, both parties submitted requests for the review of precise aspects of the Interim Report, and on 16 September 2008, the parties submitted comments on each other's requests for review. In addition, on 23 September 2008, the United States submitted a letter in response to the EC Comments, and the European Communities submitted a letter in response on 26 September 2008. Neither party requested an interim review meeting.
7.2.
This section of our Report summarizes each party's request for interim review as well as our response to the arguments made at the interim review stage, wherever we felt that an explanation was necessary. Due to changes as a result of interim review, the numbering of paragraphs and footnotes in the Final Report has changed from the Interim Report. The parties' requests and comments referred to sections, paragraph numbers and footnotes in the Interim Report. For the sake of clarity, we have indicated the corresponding paragraphs and footnotes in the Final Report where changes have been made. We have also made additional editorial corrections to the Interim Report for the purposes of clarity and accuracy.

A. EC REQUESTS FOR REVIEW

7.3.
The European Communities requests that we include, in the description of the measures at issue contained in paragraph 3.2 of the Interim Report, the "US omissions or deficiencies when complying with the DSB's recommendations and rulings", which it submits it has brought before us in addition to contesting US measures in the form of certain Section 129 Determinations and subsequent reviews (including cash deposits and liquidations resulting from the measures at issue in the original dispute and subsequent reviews).544 The United States objects to the EC request, arguing that neither such omissions nor deficiencies were set forth as distinct measures in the EC panel request or First Written Submission, and considers that paragraph 62 of the EC First Written Submission does not support its request.
7.4.
We note that the European Communities has, in its arguments before us, referred to the US omissions and deficiencies in the US implementation of the DSB's recommendations and rulings. Those references were, however, primarily made in the context of the EC arguments that all the measures challenged by the European Communities, and in particular the subsequent reviews, fall within our terms of reference. Yet, it is clear from the EC requests for findings and from Section VIII of our report that part of the "measures" placed by the European Communities before us are indeed not positive acts, but rather omissions on the part of the US in bringing itself into compliance with the DSB's recommendations and rulings. We have therefore made the addition to paragraph 3.2 suggested by the European Communities, but have qualified it by the addition of the term "related", to better reflect the subsidiary role of such "omissions" in the EC arguments.
7.5.
The European Communities requests that we include, in paragraphs 4.1 and 5,185 of the Interim Report, a reference to its request for a finding concerning the Panel's composition. The United States did not comment on the EC request for review in this respect. We have made the inclusion suggested by the European Communities in what are now paragraphs 4.2 and 5,185 of the Final Report.
7.6.
The European Communities requests, and we have made, an addition to what is now paragraph 8.22, to reflect an EC argument that the United States seems to have correctly understood the measures covered by this dispute when referring to Charts I and II of the Annex to the EC panel request in its First Written Submission. As it is clear that this paragraph reproduces the EC arguments before the Panel, we see no need to use the alternative language suggested by the United States in its Comments on the EC request. In addition, the European Communities also requests that we insert, after the third sentence of paragraph 8.31 of the Interim Report, a cross-reference to this same paragraph 8.22. The United States objects to this EC request. We decline to make the change requested by the European Communities. The European Communities has provided no justification for its request in this respect. Paragraph 8.31 of the Interim Report sets out the Panel's interpretation of Article 6.2 (as opposed to the parties' arguments) and, as pointed out by the United States, the change suggested by the European Communities would modify the sense of this paragraph.
7.7.
The European Communities requests that we make certain changes to the description of the measures at issue by the original panel and the Appellate Body in paragraphs 8.67-8.71 of the Interim Report.
7.8.
First, the European Communities requests that we specify, in paragraph 8.67 of the Interim Report, that the footnote at the end of paragraph 8.1(a) of the report of the original panel refers back to the findings contained in paragraph 7.32 of that same report which, as indicated in paragraph 8.66 of the Interim Report, refers back to footnote 119. The United States does not comment on this EC request, and we made the modification suggested by the European Communities to what is now paragraph 8.66.
7.9.
Second, the European Communities requests that we modify paragraph 8.69 of the Interim Report, substituting the words "refer to this footnote directly or indirectly" to the words "refers either to this footnote608 or to Exhibits EC-16 to EC-31609", and making corresponding changes to footnotes 608 and 609 in the Interim Report, to reflect the fact that all the paragraphs cited refer directly or indirectly to footnote 202. The United States suggests alternative language. Rather than making the change suggested by the European Communities, we have amended what are now footnotes 610 and 611 to reflect the fact that even where the original panel refers to Exhibits EC-16 to EC-31, by virtue of cross-references, the reference to these Exhibits in turn, eventually refers back to footnote 202.
7.10.
Third, the European Communities requests that we add, at the beginning of paragraph 8.70 of the Interim Report, a reference to footnote 9 of the Appellate Body report concerning the original investigations at issue in the original dispute, and which refers to paragraph 2.6 and footnote 119 of the report of the original panel. The United States objects to the change proposed by the European Communities, on the ground that paragraph 8.70 of the Interim Report concerns administrative reviews, not original investigations. We decline to make the addition suggested by the European Communities. Our report includes a discussion of the Appellate Body's description of the administrative reviews at issue because, with respect to administrative reviews, it was the findings of the Appellate Body that were adopted by the DSB. The Appellate Body did not disturb the panel's findings on the EC "as applied" claims with respect to original investigations; we therefore see limited relevance in describing the Appellate Body's description of these measures in the introductory section of its report. We now explain this in new footnote 612. In any case, the Appellate Body merely refers back to paragraph 2.6 and footnote 119 of the report of the original panel, which are already reproduced in paragraph 8.63 of the Final Report.
7.11.
Fourth, the European Communities requests that we include, in footnote 612 to paragraph 8.71 of the Interim Report, additional references to other paragraphs of the Appellate Body Report where, the European Communities indicates, the Appellate Body also referred to original investigations and administrative reviews "at issue". The United States objects to the EC request. It submits that paragraph 8.71 pertains to administrative reviews and that some of the additional paragraphs listed by the EC concern original investigations; others concern the Appellate Body's summarization of either the EC or the US arguments. We have, in response to the EC request, made it clear that the list contained in what is now footnote 613 is not exhaustive (it lists those paragraphs most relevant to the Appellate Body's findings with respect to the EC "as applied" claims concerning administrative reviews). Consistent with the preceding paragraph, we see no need to make reference to the Appellate Body's description of the measures at issue with respect to the EC claims concerning original investigations.
7.12.
Finally, the European Communities requests that we include, before paragraph 8.71 of the Interim Report, a reference to its Notice of Appeal in the original dispute, which described the measures at issue by reference to paragraph 2.6 of the report of the original panel, and that we indicate that the US did not bring any claims against such a description before the Appellate Body. The United States submits that the EC's own description of the measures at issue has no place in this portion of the report. In addition, the US contests the EC assertion that "the United States did not contest such a description before the Appellate Body".As the United States points out, this section of our report describes the description of the measures at issue by the panel and the Appellate Body in the original dispute. While we consider that the EC's panel request in the original dispute sheds light on the scope of the measures at issue (see paragraph 8.74 of the Final Report), in our view the EC's Notice of Appeal did not have the effect of delimiting the scope of the original proceeding. Indeed, the EC's Notice of Appeal described the measures at issue by reference to paragraph 2.6 of the report of the original panel. As a result, we decline to make the addition suggested by the European Communities.
7.13.
The European Communities requests that we add language at the end of paragraph 8,114 of the Interim Report in order to fully reflect its arguments. The United States does not object to this request of the European Communities, and we have made the addition suggested by the European Communities in what is now paragraph 8,113. The European Communities also requests that we insert the words "based on zeroing" in the text of paragraph 8,119 of the Interim Report. The United States objects to this proposed change, which it submits would change the meaning of the Panel's finding. While the EC request concerns, as the United States points out, our findings, we consider that the addition suggested by the European Communities eliminates an ambiguity which existed in the text of the Interim Report and better reflects the intent behind our findings. We have therefore made the change requested by the European Communities in what is now paragraph 8,118.
7.14.
The European Communities requests that, in order to provide a complete description of the issues not contested by the United States on this point, the Panel make a reference, at the end of footnote 897of the Interim Report to the fact that the United States has not contested the 75 per cent figure provided by the European Communities. The United States objects to the EC request, submitting that, as indicated in footnote 897 of the Interim Report, the European Communities failed to support the 75 per cent figure with any documentary evidence and failed to even make a prima facie case. Therefore, the United States considers that no response from it was necessary on this point. We have, in light of the parties' comments, clarified what is now footnote 905 by noting the fact that the United States did not comment on the 75 per cent figure presented by the European Communities. We have also made it clear that our conclusion that the European Communities has made a prima facie case that the volume of "dumped imports" decreased by virtue of the Section 129 determinations is not dependent on the evidence submitted by the European Communities with respect to the precise volume of imports that could no longer be regarded as dumped.
7.15.
The European Communities requests that, in order to fully reflect its argument on this point, we insert the term "cooperating" in paragraph 8,280of the Interim Report to qualify the terms "exporters and producers". The United States did not comment on this EC request. We do not consider that the addition requested by the European Communities is warranted. What is now paragraph 8,281 contains our findings on the scope of Article 9.4. Its primary aim is not to reproduce the detail of the EC argument. Further, making the addition suggested by the European Communities would detract the reader from the point that this paragraph seeks to make, i.e., the contrast between disciplines with respect to the calculation of the "all others" rate itself (the EC argument) and disciplines concerning the ceiling applicable to the "all others" rate (our interpretation of Article 9.4).

B. US REQUESTS FOR REVIEW

7.16.
The United States requests that we eliminate the references to the original panel in the fourth and fifth sentences of paragraph 8,107 of the Interim Report. The United States submits that it was the Appellate Body, and not the panel in the original dispute that relied on the rationale discussed in the fifth sentence of paragraph 8,107, and that the original panel did not find that the definition of dumping in Article 2 contained a general obligation not to zero. The European Communities objects to the US request and disagrees with the US view that the original panel did not rely on the rationale quoted in the fifth sentence of paragraph 8,107. In addition, the European Communities submits that the United States fails to read the original panel report as modified by the Appellate Body Report, which is what was adopted by the DSB. The European Communities further submits that the present panel is correct to observe that the considerations that have played a role in prior panel and Appellate Body reports condemning zeroing are fundamentally slightly different ways of expressing the same basic point, reflecting coherent reasoning that respects the overall design and architecture of the relevant provisions and the Anti-Dumping Agreement and Article VI of the GATT 1994, considered as a whole. We agree with the United States that paragraph 8,107 of the Interim Report primarily reflected the Appellate Body's reasoning in the original dispute. We have, in order to clarify the situation, added a discussion of the rationale for the original panel's finding with respect to zeroing in original investigations in new paragraph 8,106. That being said, we agree with the European Communities concerning the reasoning of the panel and Appellate Body, and believe it is clear from new paragraph 8,106 that the panel and the Appellate Body both relied in their reasoning on a basic requirement to calculate dumping for the product as a whole, and to take into account all intermediate comparisons where such comparisons are made by the investigating authority, which derives from Article 2.1 of the Anti-Dumping Agreement, and also finds expression in Article 2.4.2 ("all comparable export transactions").
7.17.
The United States suggests that the Panel clarify the first sentence of paragraph 8,175 of the Interim Report by deleting the words "the date of the final assessment of the duties, i.e." The United States submits that this phrase does not specifically characterize either of the two dates to which the Panel refers, and that it creates ambiguity as to the Panel's view of the appropriate dates. The European Communities objects to the US request in this respect. The European Communities considers that the phrase at issue does not create ambiguity, and that its deletion would imply that the Panel would only provide a partial explanation of its views. In addition, the European Communities notes that the Panel refers to "final assessment of duties" in other paragraphs of the Interim Report.545 We do not consider that the phrase at issue creates any real ambiguity as to our views on the relevant date. When read in light of paragraph 8,174, it is clear that the relevant date is that of the determination of the amount of anti-dumping liability due. We have now made this more explicit. Further, we consider it useful to maintain the phrase at issue because the purpose of the first sentence of paragraph 8,175 is to explain that such a determination occurs either at the time of the conclusion of the administrative review proceedings or, where such proceedings are not requested, on the date on which the right to request such a review has lapsed. In addition, where an administrative review proceeding is rescinded, the relevant date would be that of the rescission of the proceeding. This has now been made clear in what is now footnote 769.
7.18.
The United States submits that the last clause of the fifth sentence of paragraph 8,192 of the Interim Report, ("even where the court proceedings were unsuccessful in challenging the final duty liability determination"), could be misinterpreted to mean that the outcome of litigation is somehow relevant to the date of implementation, and suggest that we replace it with "as a result of court proceedings". In addition, the United States submits that the relevant date of implementation appears less clear in the phrase "at the time of the administrative review proceedings" contained in paragraph 8,193 of the Interim Report. In order to be consistent with our finding that the relevant date for implementation is the date of the final determination, the United States suggests that we use the formulation "the date that the United States made its final administrative review determination". The European Communities objects to these US requests. The European Communities considers that the United States bases its request on an incorrect interpretation of footnote 798 of the Interim Report, and submits that the reference to "court proceedings" in paragraph 8,192 of the Interim Report is clearly made in the context of the Panel's rebuttal of the EC's theory of implementation and, thus, does not mean that the Panel implied that "the outcome of litigation is somehow relevant to the date of implementation". Finally, the European Communities considers that the reference to "at the time of the administrative review proceedings" in paragraph 8,193 of the Interim Report is sufficiently clear.
7.19.
We decline to make the changes requested by the United States. We do not agree with the United States that paragraph 8,192 of the Interim Report, as drafted, suggests that the outcome of the litigation is relevant to the date of implementation, and note in this respect, our use of the term "even" at the beginning of the phrase at issue. Likewise, we see no need to modify paragraph 8,193 of the Interim Report as requested. In this respect, we have now made it clear in what is now footnote 769 that we do not use the term "final determination" to distinguish between the issuance of the "Final Results" and any "Amended Results" in the administrative review process.
7.20.
The United States argues that our finding, set forth in paragraphs 8,211-214 and 8,127 of the Interim Report, that the 2004-2005 administrative review in case 6 falls within our terms of reference is contrary to our finding that our terms of reference only properly include definitive duty determinations made after the end of the reasonable period of time. The United States also submits that we have elsewhere emphasized that the relevant date for implementation is that on which the administering authority makes the decision of final liability (paragraph 8,174 of the Interim Report). The United States notes that while the final determination of the 2004-2005 review in case 6 was published in the Federal Register on 10 April 2007, it was signed by the USDOC on 4 April 2007. The United States considers that it is this date that is relevant under the Panel's line of reasoning because that is the date on which the USDOC made its substantive decision of final liability Furthermore, the United States argues that the date of the USDOC's amended final determination (9 May 2007) cannot legitimately be construed as the date the USDOC made its decision because the sole purpose of that amended determination was to make ministerial corrections to the substantive decision made on 4 April 2007. The United States submits that, were the Panel to include this determination within its terms of reference by virtue of the date of the amended final determination, it would in effect be requiring the USDOC to remake a substantive determination that was made prior to the end of the reasonable period of time, and solely as a result of the USDOC's decision to recognize and correct ministerial errors that have nothing to do with the substantive issues being argued before this Panel. As a result, the United States requests that we find that the determination falls outside our terms of reference and otherwise not make any findings with respect to this determination in our Final Report.
7.21.
The European Communities objects to the US request for review, and submits that, as stated in paragraph 8,127 of the Interim Report, the Panel's terms of reference include subsequent reviews "adopted" following the date when the original reports were adopted by the DSB. Thus, the assessment review at hand (conducted in 2007) clearly falls under the Panel's terms of reference. Further, the European Communities observes that the United States mistakenly assumes that the Panel took into account the date on which the investigating authority "makes the decision of final liability". Yet, it is evident from Interim Report that the Panel took into account the date when the results of the assessment proceeding were published in the Federal Register, as this is the moment when the results of the assessment review are made public to all interested parties, and the date as of which new cash deposits are established. The European Communities also notes that the results of the amendment published on 9 May 2007 did not modify the cash deposits resulting from the original determination made on 10 April 2007: the notice published in the Federal Register on 9 May 2007 states that "The Department will also notify CBP of the revised cash deposit rate for FSAB, effective upon publication of these amended final results of the review". Thus, the amended cash deposit entered into force on 9 May 2007. Consequently, since the original and the amended determinations were published after the end of the reasonable period of time, the European Communities requests that the Panel reject the US request for review.
7.22.
We see no reason to modify our finding that the 2004-2005 administrative review in case 6 falls within our terms of reference and that the US obligation to implement extended to that determination. First, as is clear from what is now paragraph 8,121, we consider that this review falls within our terms of reference because it was published following the adoption of the DSB's recommendations and rulings. Second, we have, in our findings with respect to the temporal scope of the US obligation to implement, made it clear that it is the date of the determination of the final anti-dumping liability that is the relevant date to determine the US obligation to implement. Here, the final anti-dumping liability was determined on the date of the amended administrative review determination, since that determination changed the margin of dumping established for Fagersta in the original administrative review determination from 20.42 per cent to 19.36 per cent, and thus changed its liability for anti-dumping duties. See also, in this respect, new footnote 769. Further, we consider that the relevant date cannot, in this context, be the date of the internal decision-making process, but rather, has to be the date on which a measure takes effect, i.e., the date of publication.
7.23.
The United States requests that we amend footnote 825 to paragraph 8,219 of the Interim Report and suggests alternative language to clarify it. The European Communities considers that the original footnote reads well and reflects the US arguments. The European Communities also suggests alternative language, should the Panel wish to modify the footnote. We agree with the United States that the footnote could be better formulated and have clarified what is now footnote 819.
7.24.
The United States requests that we reverse our findings on the injury determinations in cases 2, 3, 4 and 5 (paragraphs 8,252-8.270 of the Interim Report). The main elements of the lengthy argument submitted by the United States on this issue are as follows: First, the United States submits that we need not address the EC claims with respect to "injury", and that our findings in this respect will do nothing to help resolve the dispute, given that the AD orders at issue have been revoked. Next, United States submits that the injury determinations are not within our terms of reference as they are not "measures taken to comply". The United States also argues that the Appellate Body Report in US – Oil Country Tubular Goods Sunset Reviews (Article 21.5), on which, the United States argues, we rely to support our findings, is distinguishable from the instant compliance proceeding. In addition, the United States argues that there is no obligation in the Anti-Dumping Agreement automatically to revise an injury determination in light of a revised dumping determination. In the US view, other provisions of the Anti-Dumping Agreement, specifically Articles 11.2 and 11.3, provide a vehicle to review an injury determination in order to address developments arising after the issuance of the determination. The United States concludes by noting that how it complies with DSB recommendations and rulings is up to the United States and that, in this case, it conducted sunset reviews of the orders that took into account the USDOC's Section 129 determinations, and led to the revocation of the orders.
7.25.
The European Communities objects to the US request. The European Communities considers that the Panel was required to make the findings at issue given that, at the time of the Panel's establishment, the orders were still in place. The European Communities also submits that, contrary to what the United States asserts, our findings did not concern the original injury determinations per se: rather, our findings concerned the US failure to reassess the injury determinations in light of the new volumes of dumped imports when keeping the anti-dumping duties in place as a result of the Section 129 Determinations. The European Communities adds that a compliance panel can examine the "totality" of claims relating to the consistency of "measures taken to comply" with the covered agreements (continuing violations, new violations and consequential violations of the covered agreements) and that, in this case, it argued that its claims related to new measures (i.e., the Section 129 Determinations) against which new claims could be made. In this respect, the US obligation to reassess the injury determinations derives from the original DSB recommendation to bring its measures into conformity with the Anti-Dumping Agreement; if the measures taken to comply do not comply with the Agreement, then the United States cannot argue that there is no obligation to revise its injury determinations as a consequence of the revised dumping determinations. Finally, the European Communities argues that the United States has, in its request for review, submitted new evidence, and made new arguments that were not made previously during this compliance proceeding – for instance, the European Communities submits that the United States never argued that the injury determinations were not measures taken to comply, and cannot do so at the interim review stage.
7.26.
We note first that the US request for review contains a number of arguments which were not made, or at least were not developed, during the course of this proceeding. For instance, while the United States argued during the course of the proceeding that there were no DSB recommendations and rulings concerning the issue of "injury", the United States did not previously explicitly assert that the EC claims regarding injury concerned measures which are not "measures taken to comply". The purpose of the interim review stage is not to allow a party to raise new arguments or develop arguments which were at most merely alluded to during the course of the proceeding. That said, we consider it useful to address certain of the points made by the United States in its request for review.
7.27.
First, while it may be permissible for the United States to bring its measures into conformity through the conduct of sunset reviews resulting in the revocation of the orders as a general matter, in this case, as of the date of establishment of this panel, the orders remained in force. As we explain in our findings, it is for that reason, i.e., the fact that the United States had allegedly not brought itself into conformity as of the date of the Panel's establishment, that we consider that the US measures at issue fall within our terms of reference. The US argument that it could bring itself into conformity in the manner it chose, in this case, through the revocation of the orders as a result of the sunset review determinations, overlooks that temporal element of the US obligation to bring itself into conformity with its obligations. We need not comment further on the US arguments that it can do nothing more to bring itself into conformity; we have already addressed this issue in paragraph 8,249 of the Report. We have, however, substantially revised that same paragraph to make it clear that while we consider that the US measures taken to comply fall within our terms of reference, we consider that we, as any other panel, retain the discretion to make, or not make, findings with respect to the claims and measures falling within our terms of reference (the "matter" referred to us by the DSB).
7.28.
We have already addressed, at paragraph 8,258 of our Report, the US arguments (already made in its Response to Panel Question 51) concerning the Appellate Body Report in US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina). The Appellate Body Report in that case concerns more than the scope of the measure take to comply, the aspect of the decision to which the United States limits its comments; it also addresses the applicability of the "stare decisis" principle enunciated in EC – Bed Linen (Article 21.5 – India). This latter element is the one which was specifically addressed in the report at paragraphs 8,258-8.259. Finally, and related to this, even though in our view the United States did not, in the course of this proceeding, argue that the EC claims concerned measures that are not "measures taken to comply", for the sake of completeness, we have now addressed that issue explicitly in our findings. See what is now paragraph 8,264.

C. REQUESTS BY BOTH PARTIES CONCERNING THE SAME ASPECTS OF THE INTERIM REPORT

7.29.
The European Communities requests that the Panel make certain changes to paragraphs 8,139 and 8,140 of the Interim Report in order to avoid a potential contradiction between these two paragraphs. The European Communities requests that we modify the first sentence of paragraph 8,140 of the Interim Report to read "even if the EC has made a prima facie case" or, alternatively, that we delete the first part of the first sentence of paragraph 140, and start with "[H]owever, we cannot make..."
7.30.
In its own request for review, the United States submits that the European Communities has not supplied any evidence to demonstrate that zeroing was actually employed in calculating the margins relied upon in the sunset reviews at issue and has therefore not made a prima facie case in this respect. For this reason, the United States does not believe that there exists a basis for our conclusion that the margins relied upon in the sunset reviews were calculated by using zeroing and requests that we delete the last sentence of paragraph 8,139. In its Comments on the EC request, the United States indicates that it considers that both the last sentence of paragraph 8,139 and the first sentence of paragraph 8,140 are not relevant to the Panel's finding because the Panel ultimately declines to make a finding as to the contested sunset reviews. The United States also agrees with the EC's alternative suggestion to modify the first sentence of paragraph 8,140. The European Communities objects to the US request to delete the last sentence of paragraph 8,139, and disagrees with the US view that it has failed to make a prima facie case that zeroing was actually employed in the margins relied upon in the sunset reviews at issue.
7.31.
We have examined the parties' requests to amend paragraphs 8,139-8.140 of the Interim Report, as well as their comments on each other's request, and decline to amend either of these paragraphs. We consider that they are clear and accurately reflect our reasoning.
7.32.
Both parties submit that paragraph 8,208 of the Interim Report contains a factual error: the rate challenged by the European Communities in the 2004-2005 administrative review in case 1 stems from the 2004-2005 administrative review, not from the original investigation. Each party suggests alternative language. We agree that as originally drafted, what is now paragraph 8,207 suggested that the Panel was referring to the cash deposit rate from the 2004-2005 review in the sentence identified by the parties. We have reformulated this paragraph, and the following paragraph, in order to eliminate that confusion.

VIII. FINDINGS

A. ORDER OF THE PANEL'S ANALYSIS

8.1.
Our findings are organized as follows: In the next few pages, we recall the basic principles that govern the exercise of our authority under Article 21.5 of the DSU. Next, we examine two preliminary issues. The first concerns claims of the European Communities in relation to the composition of this Panel. The second concerns US requests for preliminary rulings, in which the United States requests us to find that "subsequent" administrative and sunset reviews, taken in relation to the same AD orders as the measures at issue in the original dispute, and with respect to which the European Communities makes claims, are not properly before us.
8.2.
We will then proceed to examine the substance of the EC claims insofar as they are within our terms of reference. We will first consider the EC claims with respect to all the measures which the European Communities includes in its panel request; these claims concern whether the United States has complied with the recommendations and rulings of the DSB in the original dispute. Lastly, we will address EC claims concerning the consistency of certain US measures taken to comply (specific Section 129 determinations) with the Anti-Dumping Agreement and the GATT 1994.

B. RELEVANT PRINCIPLES REGARDING STANDARD OF REVIEW, TREATY INTERPRETATION AND BURDEN OF PROOF

1. Rules of treaty interpretation

8.3.
Article 3.2 of the DSU provides that the dispute settlement system serves to clarify the provisions of the covered agreements "in accordance with customary rules of interpretation of public international law". It is generally accepted that these customary rules are reflected in Articles 31-32 of the Vienna Convention on the Law of Treaties. Article 31(1) of the Vienna Convention provides:

"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. Standard of review

8.4.
Article 11 of the DSU provides the standard of review applicable in WTO panel proceedings in general. This provision imposes upon panels a comprehensive obligation to make an "objective assessment of the matter before it". Article 11 of the DSU provides, in relevant part:

"The function of panels is to assist the DSB in discharging its responsibilities under this Understanding and the covered agreements. Accordingly, 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, and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements."

8.5.
Article 17.6 of the Anti-Dumping Agreement sets forth a special standard of review applicable to disputes under that Agreement. It provides that:

"(i) in its assessment of the facts of the matter, the panel shall determine whether the authorities' establishment of the facts was properand whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned;

(ii) the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations."

8.6.
Taken together, Article 11 of the DSU and Article 17.6 of the Anti-Dumping Agreement establish the standard of review this Panel must apply with respect to both the factual and the legal aspects of the present dispute.

3. Burden of proof

8.7.
The general principles regarding the allocation of the burden of proof in WTO dispute settlement require that a party claiming a violation of a provision of a WTO agreement by another Member assert and prove its claim.546 These rules apply equally to proceedings under Article 21.5 of the DSU.547 The European Communities, as the complaining party, must therefore make a prima facie case of violation of the relevant provisions of the WTO agreements it invokes, which the United States must refute. A prima facie case is one which, in the absence of effective refutation by the other party, requires a panel, as a matter of law, to rule in favour of the party presenting the prima facie case. We also note, however, that it is generally for each party asserting a fact, whether complainant or respondent, to provide proof thereof.548 In this respect, therefore, it is also for the United States to provide evidence supporting the facts which it asserts.
8.8.
The Appellate Body recently discussed the application of the general rules on the allocation of the burden of proof in the context of Article 21.5 of the DSU as follows:

"The text of Article 21.5 expressly links the 'measures taken to comply' with the recommendations and rulings of the DSB concerning the original measure. A panel's examination of a measure taken to comply cannot, therefore, be undertaken in abstraction from the findings by the original panel and the Appellate Body adopted by the DSB. Such findings identify the WTO-inconsistency with respect to the original measure, and a panel's examination of a measure taken to comply must be conducted with due cognizance of this background. Thus, the adopted findings from the original proceedings may well figure prominently in proceedings under Article 21.5, especially where the measure taken to comply is alleged to be inconsistent with WTO law in ways similar to the original measure. In our view, these considerations may influence the way in which the complaining party presents its case, and they may also be relevant to the manner in which an Article 21.5 panel determines whether that party has discharged its burden of proof and established a prima facie case."549

C. EC CLAIMS WITH RESPECT TO THE COMPOSITION OF THE PANEL

8.9.
We first address an issue raised by the European Communities in its Second Written Submission concerning the composition of this Panel. The European Communities considers that this is an issue which the Panel has an inherent jurisdiction and the duty to examine ex officio by providing a proper interpretation of the DSU. The United States argues that the EC claims in this respect are not within the terms of reference of the Panel because they are not part of the "matter" referred to the DSB by the European Communities in this dispute, and that this claim is not about a measure identified in the EC Article 21.5 panel request.

1. Main arguments of the parties

8.10.
The European Communities550argues that the Panel was improperly constituted under Articles 8.3 and 21.5 of the DSU. The European Communities notes that with the agreement of the parties pursuant to Article 8.3 of the DSU, the original panel included citizens of the Members whose governments are parties the dispute. When this Article 21.5 panel was established, two members of the original panel were unavailable. During the ensuing composition process, the United States withdrew its agreement pursuant to Article 8.3 to the service of citizens of Members whose governments are parties to the dispute. The European Communities argues that it "had to accede" to the appointment of three new panelists in order for composition to proceed, whilst protesting that it was not consistent with the DSU and without prejudice to its rights.
8.11.
Substantively, the European Communities argues that under Articles 8.3 and 21.5 of the DSU, when panelists of the original dispute are available to serve in a 21.5 proceedings, they cannot be unilaterally removed from the panel by one of the parties. In the EC view, the original agreement under Article 8.3 DSU cannot be revoked at any stage of the dispute proceedings, including the compliance panel stage. The European Communities finds contextual support for its interpretation of Article 8.3 of the DSU in Article 8.6, pursuant to which parties shall not oppose panelists other than for "compelling" reasons. According to the European Communities, the nationality of a panelist may not constitute a "compelling" reason to dismiss him, when both parties have already agreed to him serving on any panel concerned with the dispute. The European Communities also finds further support for its arguments in the object and purpose of the DSU, which includes the prompt and effective settlement of disputes (Article 12) by independent panelists (Article 8.2), resulting in binding panel reports (Article 17). The European Communities argues that the Panel has an inherent jurisdiction and a duty to rule ex officio on the propriety of its own composition, and requests the Panel to find that composition was not consistent with Articles 21.5 and 8.3 of the DSU.
8.12.
The United States551 considers that the EC claim is not within the terms of reference of the Panel because it is not part of the "matter" referred to the DSB by the European Communities in this dispute, and that this claim is not about a measure identified in the EC Article 21.5 panel request – in fact, the United States questions whether such a claim could ever fall within the scope of a panel's terms of reference.552

2. Evaluation by the Panel

8.13.
The European Communities claims that Articles 8.3 and 21.5 of the DSU were violated in the panel composition process and that, as a result, this Panel was improperly composed.553 Should we agree with the European Communities that we may rule on the issue of our own composition and agree with the EC arguments on substance, we would have to conclude that we have no jurisdiction to examine and rule on the other EC claims in this dispute.
8.14.
The EC claims and arguments raise the question whether a panel may rule on the propriety or consistency with the DSU of its own composition. It is surprising that it is the complaining party in this dispute that raises this issue. But in any event, we do not believe that we need to address this question comprehensively.
8.15.
We note that this Panel was composed by the Director-General of the WTO pursuant to the provisions of Article 8.7 of the DSU. That paragraph provides:

"If there is no agreement on the panelists within 20 days after the date of the establishment of a panel, at the request of either party, the Director-General, in consultation with the Chairman of the DSB and the Chairman of the relevant Council or Committee, shall determine the composition of the panel by appointing the panelists whom the Director-General considers most appropriate in accordance with any relevant special or additional rules or procedures of the covered agreement or covered agreements which are at issue in the dispute, after consulting with the parties to the dispute. The Chairman of the DSB shall inform the Members of the composition of the panel thus formed no later than 10 days after the date the Chairman receives such a request." (emphasis added)

8.16.
The European Communities has failed to point to any provision of the DSU, and we know of none, that would give us authority to make a finding or ruling with respect to the application, by the Director-General of the WTO, of the provisions of the DSU regarding panel composition contained in Article 8.7.554
8.17.
Article 8.7 is clear that whenever there is no agreement between the parties, the ultimate power to compose the panel rests with the Director-General of the WTO. Consequently, we refrain from ruling on the substance of the EC claim with respect to the composition of this panel by the Director-General.555

D. US REQUEST FOR PRELIMINARY RULINGS

8.18.
The United States makes a request for preliminary rulings, based on two grounds. First, the United States argues that the European Communities seeks to include within the terms of reference of this proceeding measures that were not identified in the EC Article 21.5 request for the establishment of a panel as required by Article 6.2 of the DSU. Second, the United States argues that the European Communities makes claims with respect to determinations that are not measures taken to comply with the recommendations and rulings of the DSB in the original proceeding. Specifically, the United States challenges the inclusion, by the European Communities, of claims concerning administrative reviews that were not at issue in the original proceedings and of claims concerning sunset reviews.
8.19.
We examine, in turn, each of the two grounds raised by the United States, starting with the US argument that some measures were not identified by the European Communities in its Article 21.5 panel request.

1. Whether the European Communities makes claims with respect to measures that were not identified in its panel request

(a) Main arguments of the parties

8.20.
The United States556 notes that Article 6.2 of the DSU provides that a panel request shall "identify the specific measures at issue". The United States submits that the key passage of the EC Article 21.5 panel request in this respect is paragraph 7.557 The United States asserts that this paragraph plainly states that the measures at issue in this proceeding are the 15 original investigations and 16 administrative reviews that were at issue in the original proceeding. The United States notes that the European Communities, in its submissions, states that the measures listed in the Annex to its Article 21.5 panel request fall within the terms of reference of the Panel. According to the United States, the only reference in the EC Article 21.5 panel request to the Annex is in paragraph 7 ("Details of the reviews in question are set out in the annex"), and that paragraph is clear that the subsequent reviews listed in the Annex are not themselves "measures in question", but only "related to" the "measures in question". For the United States, the European Communities seeks to expand the terms of reference beyond the specific measures identified in its panel request to transform the "reviews", referenced in its panel request as separate and distinct from the "measures at issue", into "measures" within the terms of reference. Therefore, the United States argues, any "measures" other than those reviews are not "measures" subject to findings in this proceeding.
8.21.
The European Communities558asks the Panel to reject the US arguments. The European Communities considers that the United States either ignores or misconstrues the express terms of paragraph 7 of its Article 21.5 panel request when it asserts that the phrase "measures in question" in that paragraph, which refers to the 15 original investigations and 16 administrative reviews at issue in the original dispute, does not encompass the measures that the European Communities seeks to place before this compliance panel. The European Communities submits that the express terms of paragraph 7 refer to "the reviews related to the measures in question", and expressly cross-reference the Annex to the panel request, which lists the measures that the European Communities does place before this compliance panel.
8.22.
In any event, the European Communities considers that it has adequately identified the measures at issue in this dispute in its panel request. The European Communities refers to the Appellate Body Report in US – FSC (Article 21.5 – EC II), where the Appellate Body observed that in order to identify the "specific measures at issue" in an Article 21.5 proceeding, the complaining party must (i) cite the recommendations and rulings made by the DSB in the original dispute, which have allegedly not been complied with, and (ii) identify with sufficient detail the measures allegedly taken to comply with those recommendations and rulings, as well as any omissions or deficiencies therein, or state that no such measures have been taken. The EC panel request fully meets these requirements. The EC request identifies not only the positive acts taken by the United States to comply, but also the omissions and deficiencies in the US compliance: paragraphs 4 and 7 of the EC Article 21.5 panel request state that the "US continues to impose, collect, or liquidate anti-dumping duties at a rate inflated by 'zeroing' beyond 9 April 2007" and that "the US has continued zeroing in the reviews related to the measures in question. The United States has not eliminated zeroing in these reviews...". Moreover, for the purpose of further detailing the omissions and deficiencies, the EC panel request includes an Annex listing "subsequent reviews" carried out by the United States in connection with the 15 original investigations and 16 administrative reviews referred to in the original dispute. Finally, the European Communities argues that the list of "subsequent reviews" contained in the Annex is sufficiently clear so that the United States can know of the measures which are the object of this proceeding. The European Communities observes that the United States seems to have correctly understood the measures covered by this dispute when referring to Charts I and II of the Annex in its First Written Submission.559
8.23.
In response, the United States submits that the European Communities elected, in its panel request, to refer to the determinations in the 15 original investigations and 16 administrative reviews at issue in the original proceeding as "measures", which the United States considers is a term of art having a particular meaning in the context of Article 6.2 DSU, but only referred to all other determinations in that request as "reviews". The European Communities appears to assume that the words "related to" transform the "reviews" into "measures" included within the terms of reference for purposes of its panel request. However, nowhere does the panel request state that those reviews are in fact the measures in question. Further, the United States submits that the reviews are "actions", not omissions, so a fair reading of the panel request does not allow subsequent reviews to be read into the panel request.560 In response to the EC argument that the US ability to reference the reviews in the Annex is somehow evidence that those reviews are measures, the United States argues that the question is not whether the European Communities listed the reviews. Rather, it is whether the European Communities identified those reviews asmeasures for purposes of this proceeding. Finally, while the European Communities contends that its reference to "omissions" brings the reviews in the Annex within the terms of reference, an omission is a failure to act, not an action; the reviews are "actions"; and the reviews are therefore not omissions. Thus, a fair reading of the panel request does not allow subsequent reviews to be read into the word "omission."

(b) Main arguments of the third parties

8.24.
Japan561 believes that the EC panel request specifically identified the periodic and sunset reviews that are related to the original measures. Japan notes that the US First Written Submission itself states that the EC panel request "identifies" the very measures that the United States simultaneously says were not "identified".562 Thus, for Japan, the United States takes issue with the fact that the EC panel request does not state that the reviews are "measures in question", even though it specifically "identifies" them. Japan notes that paragraph 7 of the panel request explains that the reviews specifically identified in the Annex were related to the original measures and describes these reviews as being "in question", the very words that the United States says were not used by the European Communities in connection with the measures.

(c) Evaluation by the Panel

8.25.
Article 6.2 of the DSU provides that:

"The request for the establishment of a panel shall be made in writing. It shall indicate whether consultations were held, identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly...." (emphasis added)

The Appellate Body confirmed, in its Report in US – FSC (Article 21.5 – EC II), that the Article 6.2 requirement to identify the measures at issue in the panel request applies in the context of an Article 21.5 compliance dispute. The Appellate Body observed that:

"in order to identify the "specific measures at issue" and to provide "a brief summary of the legal basis of the complaint" in a panel request under Article 21.5, the complaining party must identify, at a minimum, the following elements in its panel request. First, the complaining party must cite the recommendations and rulings that the DSB made in the original dispute as well as in any preceding Article 21.5 proceedings, which, according to the complaining party, have not yet been complied with. Secondly, the complaining party must either identify, with sufficient detail, the measures allegedly taken to comply with those recommendations and rulings, as well as any omissions or deficiencies therein, or state that no such measures have been taken by the implementing Member. Thirdly, the complaining party must provide a legal basis for its complaint, by specifying how the measures taken, or not taken, fail to remove the WTO-inconsistencies found in the previous proceedings, or whether they have brought about new WTO-inconsistencies..."563

8.26.
In US – FSC (Article 21.5 – EC II), the United States had argued that the European Communities failed to properly identify certain of the measures at issue in its second Article 21.5 panel request.564 Thus the issue before the Appellate Body was that of the identification of measures (the second element identified by the Appellate Body in the paragraph quoted above); the Appellate Body characterized this issue as "whether the EC panel request put the United States on sufficient notice that a challenge was being brought against the continued operation of" the measure at issue in the first compliance dispute.565
8.27.
The US arguments before us are, similarly, limited to the issue of the identification of the measures in the EC panel request. Consequently, we must determine whether the EC panel request sufficiently put the United States on notice that it was bringing a challenge against the measures listed in the Annex to that panel request, which the parties and we have, in the course of this proceeding, referred to as "subsequent reviews". The other consideration is, in our view, whether the EC panel request clearly defines the scope of this compliance dispute.566 Expressed differently, we need to determine whether the EC Article 21.5 panel request creates uncertainty as to the measures that are the subject of this compliance proceeding.
8.28.
The parties agree that the paragraph of the EC Article 21.5 panel request that is relevant to the issue of the identification of the "subsequent reviews" as measures at issue in this dispute is paragraph 7, which reads as follows:

"With regard to the 15 original investigations and 16 administrative reviews, the US has continued zeroing in the reviews related to the measures in question. The United States has not eliminated zeroing in these reviews though they determine the cash deposit rate currently applicable, and/or are relied upon to maintain the AD measure or to impose, collect or liquidate anti-dumping duties at a rate inflated by zeroing after 9 April 2007. Details of the reviews in question are set out in the annex. For the reasons set out above, this is inconsistent with Article 2, including 2.1, 2.4 and 2.4.2, Article 9.3, and Article 11, including 11.1, 11.2 and 11.3 (since, by relying on zeroed dumping margins, the United States did not properly determine that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury) of the AD Agreement and Articles VI:1 and VI:2 of the GATT 1994."567

8.29.
It is obvious from the text of paragraph 7 that the purpose of this paragraph is to indicate that the European Communities considers that the fact that the United States continued to zero in the "subsequent reviews" listed in the Annex is inconsistent with a number of provisions of the Anti-Dumping Agreement and of the GATT 1994. In other words, it is clear that the purpose of that paragraph is to identify the "subsequent reviews" as measures at issue, and it does so by stating that the United States "has continued zeroing" and "has not eliminated zeroing" in the reviews listed in the Annex.
8.30.
The United States draws a contrast between the use in paragraph 7 of the term "measures" or "measures in question", which the European Communities employs when referring to the measures (15 original investigations and 16 administrative reviews) at issue in the original proceeding, and the description of "subsequent reviews", in the same paragraph of the panel request, as "reviews related to the measures in question". As part of this argument, the United States asserts that the term "measures" is a term of art having a particular meaning in the context of Article 6.2 DSU.568 The United States also submits that "the question is not whether the European Communities listed the reviews. The question is whether the European Communities identified those reviews as measures for purposes of this proceeding".569
8.31.
Insofar as the United States may be ascribing particular significance to the use, by the European Communities, of the term "measure" only in relation to the 31 determinations at issue in the original dispute, we consider that the US arguments are overly formalistic. Article 6.2 does not mandate the use of any particular term in identifying the measures at issue. What that provision requires is that the panel request state with sufficient precision the measures that the complainant is bringing before the panel, so that the respondent is put on notice of which measures are challenged and no uncertainty remains on the scope of the dispute. Whether in doing so the complainant uses the term "measure" is, in our view, at most secondary. Reading the EC Article 21.5 panel request as a whole, as we must570, we find that it clearly expresses the EC intent to place the "subsequent reviews" before us as part of the "specific measures at issue" in this compliance dispute.
8.32.
In light of the above, we find that the EC Article 21.5 panel request sufficiently identifies the "subsequent reviews" as "measures at issue" in this dispute and we therefore decline to make the ruling under Article 6.2 of the DSU requested by the United States.

2. Whether the "subsequent reviews"571 fall within our terms of reference

(a) Arguments of the parties

8.33.
The United States submits that the subsequent reviews are not "measures taken to comply" and therefore do not fall within the Panel's terms of reference. The United States requests the Panel to find that the only measures within the terms of reference of this proceeding are the 15 original investigations and 16 administrative reviews at issue in the original dispute.572 The United States argues that there must be an express link between the alleged measures taken to comply and the recommendations and rulings of the DSB, and that not every measure that has some connection with, or could have some impact upon a measure taken to comply may be scrutinized in an Article 21.5 proceeding. Rather, only those measures "taken in the direction of, or for the purpose of achieving compliance [with the recommendations and rulings of the DSB]" fall within the competence of an Article 21.5 panel.573
8.34.
The United States argues that the European Communities seeks to add to the Panel's terms of reference reviews that are distinct from the measures that were the subject of the DSB recommendations and rulings. With respect to administrative reviews, only the 16 administrative reviews at issue in the original proceeding were the subject of DSB recommendations and rulings; none of the other measures the European Communities seeks to include in these proceedings was the basis for a DSB recommendation or ruling. Further, the European Communities, in its original panel request, identified USDOC determinations in 16 administrative reviews, but challenged particular margins in those determinations. The European Communities also challenged multiple reviews arising out of the same AD order. Thus, in the original proceeding, the European Communities treated each review as a separate measure, and challenged specific margins in such measures and, in its original panel request, recognized that a determination in one administrative review is separate and distinct from a determination made in a subsequent administrative review. For the United States, this is consistent with the fact that in an investigation and in each administrative review, the USDOC examines different facts for a different time period, and a different set of transactions. The European Communities cannot bring entirely new and distinct review determinations concerning different periods of time into the scope of this proceeding simply because these determinations involved the same subject merchandise.
8.35.
The United States also argues based on the timing of the subsequent reviews. First, the United States contests the inclusion by the European Communities of administrative review determinations that pre-date the adoption of the DSB recommendations and rulings.574 Relying on the Appellate Body’s statement in US – Softwood Lumber IV (Article 21.5 – Canada) that "[a]s a whole, Article 21 deals with events subsequent to the DSB's adoption of recommendations and rulings in a particular dispute",575 the United States considers that determinations that pre-date the adoption of a dispute settlement report are not taken for the purpose of achieving compliance and cannot be within the scope of an Article 21.5 proceeding. The United States notes that some of the disputed determinations even pre-date the revised panel request in the original dispute, meaning that the European Communities is seeking to include in this proceeding determinations that it could have challenged, but did not challenge, in the original dispute.576
8.36.
The United States argues that the European Communities attempts to use this proceeding to obtain the effect of an "as such" finding with respect to administrative reviews when it argues that the US implementation obligations with respect to the "as applied" claims extend to distinct determinations which supersede the measures at issue in the original dispute. The United States notes that only "as applied" findings were made with respect to administrative reviews in the original dispute and thus there are no DSB recommendations or rulings relating to "as such" findings. With respect to sunset reviews, the United States recalls that the European Communities did not challenge any sunset review in the original proceeding and thus, there are no DSB recommendations or rulings relating to sunset reviews. The United States argues that, as a consequence, the sunset reviews identified in the EC Article 21.5 panel request cannot be within the terms of reference of this Panel.577
8.37.
The European Communities578 considers that all the measures referred to in its submissions (i.e., the measures mentioned in the Annex to its Panel request, in addition to the Section 129 determinations explicitly designated by the United States as "measures taken to comply") fall within the scope of this proceeding. The European Communities submits that a complaining party in an Article 21.5 proceeding can challenge either a Member's implementing actions (i.e., measures which have been adopted) or their omissions (i.e.,measures which should have been adopted) – an Article 21.5 proceeding is not only about the consistency of a measure taken to comply with the covered agreements, but also about the existence of such a measure.
8.38.
The European Communities first argues that the subsequent reviews and assessment instructions with respect to the measures challenged in the original dispute are measures which were covered by the DSB's recommendations and rulings in the original dispute and adds that the "measures taken to comply" necessarily flow from the particular "recommendations and rulings" in question. The European Communities argues that in the present case, the "as applied" measures challenged in the original dispute were described as: (i) the 15 original investigations, including "any amendments" and "each of the assessment instructions issued pursuant to any of the 15 Anti-Dumping Duty Orders" and (ii) the 16 administrative reviews, including "any amendment" and "each of the assessment instructions issued pursuant to any of the 16 Notices of Final Results".579 Therefore, the United States was required to bring the 15 original investigations and 16 administrative reviews at issue in the original dispute, including any amendments and assessment instructions, into conformity. The European Communities considers, in particular, that the United States has failed to take the necessary measures to eliminate zeroing in the subsequent reviews – it has continued using the same methodology which was found inconsistent with the Anti-Dumping Agreement and the GATT 1994 by the reports adopted by the DSB when carrying out dumping determinations in subsequent review proceedings referring to the measures at issue in the original dispute. The European Communities also submits that the United States cannot now reopen an issue that was already settled by the panel and the Appellate Body in the original dispute. The European Communities asserts that the United States had tried without success to change the description of the measures when the original panel issued the descriptive part of its report, but that the panel considered that the description of the measures was clear and respected the EC description of the measures, including any amendments and any assessment instructions.580 The European Communities further argues that the ordinary meaning of the term "amendment" is "change, modification", which is not limited only to "corrections", as the United States submits.
8.39.
The European Communities also submits that the omissions and deficiencies by the United States are also covered by this proceeding and that, accordingly, the Panel is called upon to examine the existence (or non-existence) of measures taken to comply by the United States, in particular by examining the subsequent review proceedings listed in the Annex to the Panel Request. The complainant in an Article 21.5 case can challenge either a Member's implementing actions (measures that have been adopted, i.e.,measures taken to comply) or omissions (measures which should have been adopted, i.e.,measures which do not exist).581 The European Communities considers that the Section 129 determinations are insufficient to comply with the DSB recommendations and rulings because the United States has continued using zeroing when calculating the duties to be collected and establishing new cash deposits with respect to the measures challenged in the original dispute (including those listed in the Annex as subsequent measures), and because the United States has relied on the dumping margins calculated with zeroing when finding a likelihood of recurrence of dumping in sunset review proceedings. In this sense, in addition to challenging certain Section 129 determinations, the European Communities challenges the omissions by the United States to take the necessary measures to comply. According to the European Communities, the United States, on 9 April 2007, (i) should have stopped taking any positive acts providing for the collection of anti-dumping duties based on zeroing in connection with any of the measures at issue in the original dispute, and thus, with respect to the "subsequent reviews",582 and (ii) should have recalculated, without zeroing, the previous dumping margins based on zeroing in order to rely on them in assessing likelihood of dumping in sunset review proceedings with respect to the measures at issue in the original proceedings. According to WTO jurisprudence, a measure that essentially replaces an earlier measure remains within the terms of reference of an original panel.583 The European Communities asserts that an Article 21.5 panel must be in a position to assess whether an annual administrative review (or sunset review) that confirms and supersedes the original determination relating to the same anti-dumping duty and the same methodology (i.e., zeroing) constitutes a "continuing violation".
8.40.
For the European Communities, the consequence of concluding that the subsequent administrative and sunset reviews are not before the panel would be that the US system of duty assessment is turned into a moving target that escapes from AD disciplines: each administrative review would have to be the subject of a new panel request, and by the time the panel, Appellate Body and implementation procedures were completed, another administrative review would have overtaken the results of any Section 129 determination. Such a result would run contrary to the purpose and objective of Article 21.5 of the DSU.584
8.41.
In the alternative, the European Communities argues that even if the subsequent reviews were to be considered as separate determinations or different measures than those covered by the DSB's recommendations and rulings in the original dispute, they can be regarded as "measures taken to comply" because they are closely connected with the 15 original investigations and the 16 administrative reviews in the original dispute.585 The European Communities relies on the panel report in US – Upland Cotton (Article 21.5 – Brazil) and the Appellate Body Report in US – Softwood Lumber IV (Article 21.5 – Canada) for the proposition that measures with a sufficiently close nexus to the measures taken to comply or with the DSB recommendations and rulings fall within the scope of Article 21.5 proceedings. The European Communities argues that the nature of the subsequent reviews is, in essence, the same as the measures (original investigations and administrative reviews) in the original dispute (i.e.,collect anti-dumping duties and establish cash deposits based on zeroing) and that the violation originally challenged (the use of zeroing when calculating dumping margins) still remains in the subsequent review proceedings. Further, the subsequent review proceedings relate to the same products, the same countries and the same exporting companies; they are a continuation of the 15 original investigations and 16 administrative reviews at issue in the original dispute, whose effects based on zeroing still remain in place after the end of the reasonable period of time. The European Communities submits that the United States itself admits this close relationship when it argues that the subsequent reviews (and/or the revocation of the original orders) relieves it of any obligation to act in order to comply with the DSB's recommendations and rulings. But for these reviews, the United States would have been required to revise the challenged measures. As to timing, the close relationship between the subsequent review proceedings remains, regardless of when they were issued; the fact that a measure predates the adoption of the reports by the DSB cannot exclude per se such a measure from the scope of compliance proceedings.
8.42.
The European Communities responds to the US argument that it is attempting to use this Article 21.5 proceeding to obtain the effect of an "as such" finding586 by asserting that it is not arguing in general that the US implementation obligations with respect to the "as applied" claims extend to distinct determinations – for example related to other products or other sub-regions of the European Communities, or entirely new original investigations. Rather, what the European Communities argues is that, in this particular case, since the subsequent reviews and assessment instructions were part of the measures challenged in the original dispute, the US implementation obligations with respect to the "as applied" claims extend to any subsequent determination and assessment instruction in connection with the measures in the original dispute, as well as the related US omissions or deficiencies. In other words, the scope of the "as applied" finding covered, in the EC view, every instance of application (and omission or deficiency) of the zeroing methodology by the United States with respect to any amendments (which in the EC view includes subsequent reviews) and assessment instructions, relating to the 15 original investigations and 16 administrative reviews, since those were part of the measures originally challenged "as applied". Limiting the "as applied" finding as the United States suggests would in the EC view lead to absurd results: it would imply that an investigating authority could adopt new measures to replace the one found to be WTO-inconsistent but containing exactly the same violations. In addition, the European Communities argues that the distinction between "as such" and "as applied" findings should not be mechanistically applied in this case.587 Regardless of the characterisation of the findings made by the Panel and the Appellate Body in the original dispute, the DSB's recommendations and rulings clearly stated that the zeroing methodology applied by the United States in the 15 original investigations and the 16 administrative reviews was inconsistent with Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994. When it applied the same zeroing methodology in the subsequent reviews listed in the Annex to the Panel Request, the United States failed to comply with the DSB's recommendation to bring the measures into conformity with its obligations.
8.43.
With respect to sunset reviews, the European Communities makes essentially the same arguments as it makes in relation to administrative reviews:588 the DSB recommendations and rulings also covered any amendments to the 15 original investigations and 16 administrative reviews. By their nature, the European Communities argues, sunset review proceedings are amendments to the original measures because they restart the application of the duty for another five years and, thus, they were covered by the DSB's recommendations and the findings in the original dispute. The European Communities also argues that, like the administrative reviews, the sunset reviews listed in the Annex are "measures taken to comply" since they are closely connected to the original investigations and administrative reviews in the original dispute.
8.44.
The United States, in response, maintains that the EC contentions that (i) the subsequent reviews were part of the terms of reference of the original proceeding, (ii) that they are measures taken to comply, and (iii) that they are "omissions", are mutually contradictory. The United States notes in addition that the European Communities argues that measures taken to comply both exist and do not exist, at the same time. These propositions are, the United States submits, mutually contradictory.589 The European Communities cannot have it both ways – if the United States failed to comply by "omission", then any corresponding finding against the United States should be that a measure was not taken to comply, not that subsequent determinations are inconsistent with the US obligations.
8.45.
The United States refutes the EC argument that the subsequent reviews were part of the original proceedings as "amendments" to the 15 original investigations and 16 administrative reviews at issue in the original dispute. The United States submits that the term "amendment" had a precise meaning in the original dispute: it referred to corrections to the measures identified in the original proceeding e.g. to correct for ministerial errors590 or amendments resulting from domestic litigation, but not to subsequent determinations, which involve different entries, different time periods, and perhaps even different parties. This is evidenced by the EC panel request in the original dispute: in that request, the European Communities referred to specific determinations as "amended",591 but listed as separate "cases" the investigation and the administrative review relating to the same order and listed separately multiple administrative reviews relating to the same order. Thus, the original EC panel request confirms that the term "amendments" did not refer to subsequent reviews. Similarly, the United States argues that sunset reviews are not amendments to the original measures; sunset reviews do not determine anti-dumping liability, they are not mere corrections or removal of errors from an investigation, but rather are a separate determination for a separate purpose based on different facts and evidentiary standards.
8.46.
In addition, the United States asserts that the original "as applied" claims of the European Communities could not have been as broad as it contends: most of the subsequent determinations did not exist at the time of establishment of the original panel (19 March 2004).592 They could therefore not have been part of the original panel's terms of reference.593 Likewise, the DSB's recommendations and rulings could not have covered any liquidation instructions that were not issued as of 19 March 2004.594
8.47.
The United States argues, in response to the EC view that the determinations are "closely connected" to the measures at issue in the original proceeding, that the Appellate Body has stated that not every measure that has "some connection with", "could have an impact on" or could "possibly undermine" a measure taken to comply may be scrutinized in an Article 21.5 proceeding. The United States notes that in US – Softwood Lumber IV(Article 21.5 – Canada), the Appellate Body found it significant that the United States acknowledged that the "methodology used by the USDOC in the First Assessment Review was adopted 'in view of' the recommendations and rulings of the DSB." This was evident from the fact that the Section 129 determination and the determination in the first administrative review both closely corresponded to the expiration of the reasonable period of time, which provided the USDOC with the ability to take account of the DSB's recommendations and rulings in the first administrative review. The situation in this dispute is different: in this dispute, many of the "subsequent" determinations were made prior to the adoption of the DSB's recommendations and rulings. The United States maintains that they could not have taken into consideration the recommendations and rulings of the DSB, and the European Communities has failed to provide any evidence that these subsequent determinations were adopted "in view" of the DSB's recommendations and rulings.
8.48.
The United States notes that two of the subsequent determinations identified by the European Communities were in changed circumstances reviews, and were made before the adoption of the DSB's recommendations and rulings; moreover, both determinations addressed whether one company was successor in interest to another company, and was therefore entitled to that company's cash deposit rate – the USDOC did not recalculate any margins of dumping in these two changed circumstances reviews. The remaining 36 determinations were administrative reviews; the USDOC made its determinations in 26 of these reviews before the adoption of the DSB's recommendations and rulings. Of the 10 remaining determinations, 4 gave no indication that the USDOC's treatment of non-dumped sales was an issue in the review; another four were made before the end of the reasonable period of time, and in those, the USDOC made clear that the determinations were not being issued in view of the recommendations and rulings. The United States further indicates that in one of the two remaining determinations, the 2005-2006 administrative review in Stainless Steel Bar from the United Kingdom, no party specifically raised the issue of non-dumped sales (although one party raised the issue of the recalculation of the all others rate from the Section 129 determination). In the last administrative review, the 2004-2005 administrative review in Hot Rolled Steel from the Netherlands, the Section 129 determination resulted in the revocation of the AD order. The United States considers that it therefore had no further obligation with respect to the Appellate Body's specific "as applied" finding, which was made only with respect to the original investigation in that determination. Moreover, that administrative review determination cannot be said to have been made "in view of" the DSB's recommendations and rulings since the USDOC clearly stated that it did not consider that the DSB's recommendations and rulings required it to take any action with respect to the treatment of non-dumped sales in that review, in particular because it considered that the challenged reviews were no longer in effect as each of the reviews at issue in the original dispute had been superseded by a subsequent administrative review.595
8.49.
The United States also notes that the original EC "as applied" claims did not include any challenges to determinations in sunset reviews. Consequently, neither the original panel, nor the Appellate Body, made any findings in this dispute with respect to sunset reviews.596
8.50.
Further, the United States recalls that an "as applied" challenge concerns the "application of a general rule to a specific set of facts"; by contrast, an "as such" claim challenges instruments of a Member that have general effect, and seeks to prevent a Member from engaging in certain conduct ex ante. The European Communities complains of the "continued" use of the allegedly "same methodology" that was the subject of DSB recommendations and ruling "when carrying out dumping determinations in the subsequent review proceedings"; that is, the European Communities complains of the general and prospective application of the so-called zeroing methodology, and is attempting to gain the benefit of an "as such" finding when the Appellate Body declined to make one.
8.51.
Finally, the United States submits that the legal and factual distinctions between the two types of proceedings with respect to the issue of zeroing are more relevant here than was the case in Softwood Lumber, in which the issue was the pass-through of subsidies, and the legal basis for the panel's consideration did not differ as between the investigation and the administrative review. With respect to the issue of zeroing, however, there is a distinction between "model zeroing" in investigations and "simple zeroing" in reviews. This distinction flows through to the legal bases for the findings against zeroing – which rely significantly on the text of Article 2.4.2 and, in particular, the phrase "all comparable export transactions" in the context of investigations. In the context of reviews, however, that textual basis is absent and the Appellate Body has, instead, relied on the term "product" and the non-textual phrase "product as a whole" to find that a margin of dumping cannot be calculated in a proceeding using zeroing. Given the distinctions in the factual and legal basis for the findings on investigations as compared to reviews, it would be inappropriate for the Panel to find that there is a sufficiently close nexus to address the subsequent reviews in an Article 21.5 proceeding.

(b) Arguments of the third parties

8.52.
Norway considers that all the measures referred to in the EC First Written Submission fall within the scope of the Panel's jurisdiction. It recalls that both positive acts taken to comply and omissions are covered by Article 21.5, and considers that that any subsequent administrative reviews, sunset reviews, assessment instructions and liquidations based on zeroing must be viewed as evidencing "omissions" on the part of the United States.597 Like the European Communities, Norway also relies on US – Upland Cotton (Article 21.5 – Brazil). It recalls that, in that case, the Appellate Body set out three elements – nature, effect and timing – as additional criteria when assessing whether a measure which is not declared by the respondent to be a "measure taken to comply" nevertheless may be characterized as such. In Norway's opinion, a consideration of these three elements with regard to the current case leads to the conclusion that the subsequent reviews have a sufficiently close relationship with the recommendations and rulings of the DSB to be included in the scope of this proceeding. With regard to the timing element, Norway points out that in US – Softwood Lumber IV (Article 21.5 – Canada), the Appellate Body assessed a measure resulting from a review that was initiated before the adoption of the report. The timing of a review is not the determining factor when it comes to whether it is a measure taken to comply; the important point is rather whether the review was completed and/or continued to have effects after the end of the reasonable period of time. Finally, Norway submits that following the line of argument set out by the United States would lead to the need to start a new panel for each administrative review, and when another administrative review superseded the first, another panel would have to be started. This would run counter to the aim of Article 21.5 of the DSU.
8.53.
Japan agrees with the European Communities that the "subsequent" periodic and sunset reviews are covered by this proceeding. Japan recalls that Article 21.5 proceedings may involve either acts and omissions (or a combination of both) and that, contrary to what is argued by the United States, the Appellate Body has indicated that not only measures that formed the basis of DSB recommendations and rulings or measures that have been taken in the direction of compliance or with the objective of achieving compliance fall under the scope of Article 21.5. Rather, Article 21.5 proceedings may include closely connected measures that are "separate and distinct" from the original measures. Japan recalls that, in US – Softwood Lumber IV (Article 21.5 – Canada), the Appellate Body examined the connection between the measures challenged under Article 21.5 and the original measures under what it describes as a "nexus-based test" that paid attention to (i) the nature or subject-matter of the measures; and (ii) the "effects" of the challenged measures on United States compliance with the DSB's recommendations and rulings. Applying these criteria, Japan asserts that the links between the original and subsequent measures in this dispute are virtually the same as those that led the Appellate Body, in US – Softwood Lumber IV (Article 21.5 – Canada), to conclude that a subsequent periodic review was subject to the Article 21.5 proceedings.598
8.54.
Japan considers that, contrary to the US argument, the DSB's recommendations and rulings are not converted into rulings on an "as such" measure as a result of the position taken by the European Communities and Japan. Only a very small subset of all US periodic reviews is challenged by the European Communities in these proceedings – those subsequent reviews that are closely connected to the DSB's recommendations and rulings (same product, same exporters, same order or "proceeding", same "specific component": zeroing). Japan also considers that the United States itself admits that the various measures are closely connected when it argues that each of the reviews at issue in the original dispute has been "superseded" by subsequent administrative review determinations (an argument of the United States with which Japan does not agree). Accepting the US position would mean that the WTO dispute settlement system cannot effectively resolve disputes regarding the application of calculation methodologies in AD proceedings.
8.55.
With respect to the US arguments on timing, Japan argues that the United States incorrectly assumes that the timing of a measure's adoption is decisive under Article 21.5 because a measure can only be "taken" with the intent "to comply" after the date of adoption of the DSB's recommendations and rulings. Yet, it is well-established that a measure may be "taken to comply" even if the Members intent in taking the measure was not "to comply". Were Article 21.5 not to apply to measures adopted prior to adoption by the DSB of the relevant report(s), it would be straightforward for the implementing Member to force the complainant to begin new dispute settlement proceedings by adopting closely connected measures, prior to adoption by the DSB of the relevant report(s), that undermine or prevent compliance. The case-law under Article 6.2 of the DSU also suggests that the United States is incorrect in arguing that closely connected measures adopted during a WTO dispute, but prior to adoption, must be split into separate WTO proceedings. Past panels and the Appellate Body599 have, in assessing the scope of a panel's jurisdiction, focused on the substantive connection, with respect to the disputed component, between an original measure and a replacement or amendment measure adopted at any stage after the consultations request. The Appellate Body's approach in US – Softwood Lumber IV (Article 21.5 – Canada) is very similar. In sum, the case-law shows that a series of closely linked measures adopted over time – starting with the original measures, continuing with measures adopted during consultations, the original proceedings, and into implementation – may all relate to "fundamentally the same 'dispute'", and all be subject to the DSB's recommendations and rulings in that dispute, provided they are substantively the same.

(c) Evaluation by the Panel

(i) Introduction

8.56.
The US request for preliminary rulings raises the issue of the scope of Article 21.5 proceedings, and more specifically, the issue of which measures may be examined by an Article 21.5 panel to assess the responding Member's implementation of DSB recommendations and rulings.
8.57.
Article 21.5 of the DSU provides, in relevant part, that:

"Where there is disagreement as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings such dispute shall be decided through recourse to these dispute settlement procedures, including wherever possible resort to the original panel."

8.58.
The parties fundamentally disagree as to whether the "subsequent reviews" – administrative reviews, changed circumstances reviews, and sunset reviews listed in the Annex to the EC Article 21.5 request for the establishment of a panel, as well as related "assessment instructions" fall within the scope of this proceeding. The following table lists, in the right hand column, the subsequent reviews included in the Annex to the EC panel request, and in the left hand column, the measure at issue in the original dispute with which each is associated (numbers 1-15 are the original determinations challenged in the original dispute, numbers 16-31 are the administrative reviews challenged in the original dispute):

Measures at issue in the original disputeSubsequent reviews
1. Certain Hot-Rolled Carbon Steel from the Netherlands Administrative reviews: 3 May 2001 – 31 October 2002 (69FR 43801, 22 July 2004) 4.8%
1 November 2002 – 31 October 2003 (70FR 18366, 11 April 2005) 4.42%
1 November 2004 – 31 October 2005 (72FR 34441, 22 June 2007) 2.26%
2. Stainless Steel Bar from France Administrative reviews: 1 March 2003 – 29 February 2004 (70 FR 46482, 10 August 2005) Ugitech 14.98%
1 March 2004 – 28 February 2005 (71 FR 30873, 31 May 2006) Ugitech 9.68%
Sunset Review: DOC Final Determination (72 FR 30772, 4 June 2007)
3. Stainless Steel Bar from Germany Administrative reviews: 2 August 2001–28 February 2003 (69 FR 32982, 14 June 2004) BGH 0.52%
1 March 2004–28 February 2005 (71 FR 52063, 1 September 2006) BGH 0.73%
Sunset Review: DOC Preliminary Determination (72 FR 29970, 30 May 2007)
4. Stainless Steel Bar from Italy Administrative reviews: 2 August 2001– 28 February 2003 (69 FR 32984, 14 June 2004) Foroni 4.03% Ugine 33%
Sunset Review: DOC Final Determination (72 FR 30772, 4 June 2007)
5. Stainless Steel Bar from the United Kingdom Administrative review: 1 March 2005 – 28 February 2006 (72 FR 15106, 30 March 2007) Enpar Special Alloys 33.87%
Sunset Review: DOC Final Determination (72 FR 30772, 4 June 2007)
6. Stainless Steel Wire Rod from Sweden Administrative reviews: 1 September 2004 – 31 August 2005 (72 FR 26337, 9 May 2007) Fagersta 19.36%
Sunset Review: Continuation order, (69 FR 50167, 13 August 2004)
7. Stainless Steel Wire Rod from Spain Administrative review: 5 March 1998 – 31 August 1999 (66 FR 10988, 21 February 2001) Roldan SA 0.8%
Sunset Review: Continuation order, (69 FR 50167, 13 August 2004)
8. Stainless Steel Wire Rod from Italy Sunset Review: Continuation Order (69 FR 50167, 13 August 2004)
9. Certain Stainless Steel Plate in Coils from Belgium See case 18 below
10. Stainless Steel Sheet and Strip in Coils from France See cases 25 & 26 below Measure revoked July 2004 (70 FR 44894, 4 August 2005)
11. Stainless Steel Sheet and Strip in Coils from Italy See cases 21 & 22 below
12. Stainless Steel Sheet and Strip in Coils from the United Kingdom Measure revoked: July 2004 (70 FR 44894, 4 August 2005)
13. Certain Cut-to-Length Carbon-Quality Steel Plate from France Measure revoked: February 2005 (70 FR 72787, 7 December 2005)
14. Certain Cut-to-Length Carbon-Quality Steel Plate from Italy Sunset review: Continuation Order (70FR 72607, 6 December 2005).
15. Certain Pasta from Italy See cases 19 & 20 below
16. Industrial Nitrocellulose from France Two subsequent administrative reviews were rescinded, covering the periods: 1 August 2000 – 31 July 2001 1 August 2002 – 31 July 2003 Measure revoked: (69 FR 52231, 25 August 2004)
17. Industrial Nitrocellulose from the United Kingdom Two subsequent administrative reviews were rescinded, covering the periods: 1 July 2001 – 30 June 2002 1 July 2002 – 30 June 2003
Changed circumstance review (December 2003) confirmed the rate of 3.06% to apply to Troon Investments, successor to ICI
Measure revoked: (69 FR 52231, 25 August 2004)
18. Stainless Steel Plate in Coils from Belgium Two subsequent reviews resulting in change to rate: 1 May 2002 – 30 April 2003 (70FR 2999, 19 January 2005) 2.71%
1 May 2003 – 30 April 2004 (70FR 72789, 7 December 2005) 2.96%
Sunset Review: Continuation Order (70 FR 41202, 18 July 2005)
19. Certain Pasta from Italy Ferrara: Order revoked in February 2005 following third consecutive review where the company had de minimis rate (70 FR6832, 9 February 2005)
Pallante: Order revoked in November 2005 following third consecutive review where the company had de minimis rate (70 FR71464, 29 November 2005)
PAM: Two subsequent reviews resulting in change to rate: 1 July 2001 – 30 June 2002 (69 FR 6255, 10 February 2004) 45.49%
1 July 2002 – 30 June 2003 (70 FR 6832, 9 February 2005) 4.78%
Sunset review: DOC Final Determination (72 FR 5266 5 February 2007)
20. Certain Pasta from Italy Pastifi Garofalo: One subsequent review resulting in change to rate: 1 July 2001 – 30 June 2002 (69 FR 22761, 27 April 2004) 2.57% One review rescinded covering period: 1 July 2002 – 30 June 2003
21. Stainless Steel Sheet Strip Coils from Italy See case 22
22. Stainless Steel Sheet Strip Coils from Italy Two subsequent reviews resulting in change to rate: 1 July 2001 – 30 June 2002 (68 FR 69382, 12 December 2003) 1.62%
1 July 2002 – 30 June 2003 (70FR 13009, 17 March 2005) 3.73%
Sunset review: Continuation Order (70 FR 44886, 4 August 2005)
23. Granular Polytetrafluorethylene from Italy See case 24
24. Granular Polytetrafluorethylene from Italy Two subsequent administrative reviews were rescinded, covering the periods: 1 August 2002 – 31 July 2003 1 August 2003 – 31 July 2004 Changed circumstance review (May, 2003) confirmed the rate of 12.08% to apply to Solvay Solexis, successor to Ausimont
1 subsequent review resulting in change to rate: 1 August 2004 – 31 July 2005 (72FR 1980, 17 January 2007) 39.13%
Sunset review: Continuation Order (70 FR 76026, 22 December 2005)
25. Stainless Steel Sheet Strip Coils from France See case 26
26. Stainless Steel Sheet Strip Coils from France 3 subsequent reviews resulting in change to rate: 1 July 2001 – 30 June 2002 (68 FR 69379, 12 December 2003) 2.93%
1 July 2002 – 30 June 2003 (70 FR 7240, 11 February 2005) 9.65%
1 July 2003 – 30 June 2004 (71 FR 6269, 7 February 2006) 12.31%
Measure revoked: (70 FR 44894, 4 August 2005)
27. Stainless Steel Sheet Strip Coils from Germany See case 28
28. Stainless Steel Sheet Strip Coils from Germany 4 subsequent reviews resulting in change to rate: 1 July 2001 – 30 June 2002 (69FR 6262, 10 February 2004) 3.72%
1 July 2002 – 30 June 2003 (69 FR 75930, 20 December 2004) 7.03%
1 July 2003 – 30 June 2004 (70 FR 73729, 13 December 2005) 9.5%
1 July 2004 – 30 June 2005 (71 FR 74897, 13 December 2006) 2.45%
Sunset review: Continuation Order (70 FR 44886, 4 August 2005)
29. Ball Bearings from France SKF: 4 subsequent reviews resulting in change to rate: 1 May 2001 – 30 April 2002 (68 FR 43712, 24 July 2003) 6.70%
1 May 2002 – 30 April 2003 (69 FR 55574, 15 September 2004) 5.25%
1 May 2003 – 30 April 2004 (70 FR 54711, 16 September 2005) 8.41%
1 May 2004 – 30 April 2005 (71 FR 40064, 14 July 2006) 12.57%
Sunset Reviews: Continuation Order (71 FR 54469, 15 September 2006)
30. Ball Bearings from Italy FAG: 4 subsequent reviews resulting in change to rate: 1 May 2001 – 30 April 2002 (68 FR 35623, 16 June 2003) 2.87%
1 May 2002 – 30 April 2003 (69 FR 55574, 15 September 2004) 4.79%
1 May 2003 – 30 April 2004 (70 FR 54711, 16 September 2005) 5.88%
1 May 2004 – 30 April 2005 (71 FR 40064, 14 July 2006) 2.52%
SKF: 4 subsequent reviews resulting in change to rate: 1 May 2001 – 30 April 2002 (68 FR 35623, 16 June 2003) 5.08%
1 May 2002 – 30 April 2003 (69 FR 55574, 15 September 2004) 1.38%
1 May 2003 – 30 April 2004 (70 FR 54711, 16 September 2005) 2.59%
1 May 2004 – 30 April 2005 (71 FR 40064, 14 July 2006) 7.65%
Sunset Reviews: Continuation Order (71 FR 54469, 15 September 2006)
31. Ball Bearings from the United Kingdom NSK Bearings: No subsequent administrative reviews
Barden: 1 subsequent administrative review rescinded for period: 1 May 2001 – 30 April 2002 2 subsequent reviews resulting in change to rate: 1 May 2002 – 30 April 2003 (69 FR 55574, 15 September 2004) 4.10%
1 May 2003 – 30 April 2004 (70 FR 54711, 16 September 2005) 2.78%
Sunset Reviews: Continuation Order (71 FR 54469, 15 September 2006)

8.59.
The European Communities argues that the subsequent reviews fall within our terms of reference for three reasons:

(a) The subsequent reviews are covered by the DSB's recommendations and rulings as "amendments" to the original investigations and administrative reviews at issue in the original dispute since the measures at issue in the original dispute included "any amendments" and "any assessment instructions" to the 15 original investigations and 16 administrative reviews challenged by the European Communities in that proceeding;

(b) The subsequent reviews fall within the terms of reference as "omissions" or "deficiencies" in the US implementation of the DSB recommendations and rulings;

and, in the alternative:

(c) The subsequent reviews are "measures taken to comply" because of the close nexus that exists between these reviews and the measures at issue and the DSB's recommendations and rulings in the original dispute.

8.60.
We examine each of the EC arguments in turn.

(ii) Whether the subsequent reviews are "amendments" to the measures at issue in the original dispute

8.61.
The European Communities' first line of argumentation is that the original dispute "covered" not only the 15 original investigations and 16 administrative reviews specifically identified in the context of the original dispute, but also any amendments thereto and any "assessment instructions", and that the subsequent reviews are such "amendments". The United States rejects the EC arguments in this respect, and submits that the use of the term "amendments" in the original proceeding – in particular in the EC request for the establishment of the original panel – referred to amendments in the form of corrections for ministerial errors or corrections adopted following litigation in US courts.600
8.62.
We must, to resolve this question, first examine the findings of the panel and of the Appellate Body in the original dispute.
8.63.
In the descriptive part of its report, at paragraph 2.6 of its report, the original panel identified the measures challenged by the European Communities in the context of its "as applied" claims as follows:

"the 15 Notices of Final Determinations of Sales at Less Than Fair Value, including any amendments, and including all the Issues and Decision Memoranda to which they refer, and all the Final Margin Program Logs and Outputs to which they in turn refer, for all the firms investigated; each of the 15 Anti-dumping Duty Orders; each of the assessment instructions issued pursuant to any of the 15 Anti-dumping Duty Orders; and each of the USITC final injury determinations.21... the 16 Notices of Final Results of Antidumping Duty Administrative Reviews, including any amendments, and including all the Issues and Decision Memoranda to which they refer, and all the Final Margin Program Logs and Outputs to which they in turn refer, for all the firms investigated; and each of the assessment instructions issued pursuant to any of the 16 Notices of Final Results." 22

21 Exhibits EC-1 to EC-15; EC-First Written Submission, paras. 48-56, 63 and 102; EC-Rebuttal Submission, para. 55.

22 Exhibits EC-16 to EC-31; EC-First Written Submission, paras. 57-61, 148 and 211.; EC-Rebuttal Submission, para. 91."601 (underline added)

8.64.
Exhibits EC-1 to EC-15 include documents and information of the type referred to in this paragraph with respect to the 15 original investigation proceedings challenged by the European Communities in the original case; Exhibits EC-16 to EC-31 contain similar documents and information with respect to the 16 administrative reviews at issue in the original dispute. The documents contained in the Exhibits correspond to the various measures or aspects thereof602 listed by the European Communities in its request for establishment in the original dispute. The EC panel request in the original dispute603 contained two Annexes: Annex I listed original investigation "cases", with different columns for (1) the DOC Final Determination in the case, (2) the Final USITC Determination, and (3) the Final AD Order. Further specifics were provided: rates for each exporter and what the rate without zeroing would allegedly be. Similarly, Annex II listed the administrative review "cases", with columns identifying (1) the reference to the publication of the Final Results, (2) the exporter(s) concerned and the relevant dumping margin found, and (3), the period covered by the review. Later, still in the descriptive part of its report, the original panel described the findings sought by the European Communities with respect to its "as applied" claims by referring to the "original investigations" "identified" and "periodic reviews" "listed" in the relevant EC Exhibits.604
8.65.
In describing again the EC requests for findings with respect to its "as applied" claims in the "Findings" section of its report, the original panel used a slightly different formulation and referred to the "cases and measures" "listed" in the EC exhibits.605 In the same "Findings" section of its report, when addressing the EC claims with respect to the identified original investigations, the original panel indicated that the European Communities claimed that:

"the United States has acted inconsistently with its WTO obligations in 15 anti-dumping investigations listed in Exhibits EC-1 to EC-15119..."

Footnote 119 identifies the 15 original investigations and notes:

"The measures at issue also include the anti-dumping duty order and any amendments, including the assessment instructions, and the USITC injury determination. EC-First Written Submission, para. 63."606

8.66.
In its findings, and in its conclusions, the original panel refers back to footnote 119 when describing the measures at issue, and uses the terms "the anti-dumping investigations at issue". For instance, the panel concludes in para. 7.32 that:

"In light of the foregoing considerations, the Panel finds that the United States has acted in breach of Article 2.4.2 of the AD Agreementwhen in the anti-dumping investigations at issue132..."

132 Supra, footnote 119."607

In the final section of its report ("Conclusions and recommendations"), the panel refers once again to the original investigations listed in Exhibits EC-1 to EC-15 by reference to paragraph 7.32 (which, again, refers to footnote 119):

"In light of our findings above, we conclude that:

The United States acted inconsistently with Article 2.4.2 of the AD Agreement when in the anti-dumping investigations listed in Exhibits EC-1 to EC-15 USDOC did not include in the numerator used to calculate weighted average dumping margins any amounts by which average export prices in individual averaging groups exceeded the average normal value for such groups.382

382 Supra, para. 7.32."608

8.67.
The findings of the original panel with respect to the EC claims concerning administrative reviews describe the measures at issue in similar fashion:

"The European Communities requests the Panel to find that the United States has acted inconsistently with its WTO obligations in 16 'anti-dumping duty administrative review' proceedings listed in Exhibits EC-16 to EC-31202..."

Footnote 202 identifies the 16 administrative review proceedings and notes:

"The European Communities indicates that in addition to the Final Results of the administrative review, the measures at issue include the amendments to these Final Results and that the Final Results of the administrative review refers to the accompanying Issues and Decision Memorandum, which in turn refers to the Margin Calculations, i.e., the Final Margin Program Log and Outputs for the firms investigated, and to the assessment instructions. EC-First Written Submission, para. 148."609

Later, when referring to the measures challenged by the European Communities in its findings with respect to the EC claims concerning administrative review, the original panel again refers either to this footnote610 or to Exhibits EC-16 to EC-31.611

8.68.
The Appellate Body, in the introductory section of its report, describes the measures at issue with respect to the EC "as applied" claims concerning administrative reviews, by referring to the description of the measures in the report of the panel and to Exhibits EC-16 to EC-31:

"The administrative reviews challenged by the European Communities are listed in Exhibits EC-16 through EC-31 submitted by the European Communities to the Panel. Further details may be found in para. 2.6 and footnote 202 to para. 7,110 of the Panel Report."612

8.69.
In its analysis of the EC appeal with respect to the findings of the original panel concerning the EC "as applied" claims with respect to administrative reviews, the Appellate Body refers to the "administrative reviews of anti-dumping duty orders listed in Exhibits EC-16 through EC-31",613 or to "the administrative reviews at issue".614
8.70.
This description of the measures at issue by the original panel and the Appellate Body is consistent with the Annexes to the EC request for the establishment of the panel, in which it lists 15 original investigation proceeding "cases" or "measures" and 16 administrative review proceeding "cases" or "measures" and lists a number of aspects of each such case.
8.71.
The EC arguments before us focus on the fact that both the original panel and the Appellate Body described the measures at issue as including "amendments" to the 15 original investigations and 16 administrative review "cases". While we agree with the European Communities as to the description of the measures at issue, we cannot agree with the European Communities that these references to "amendments" encompass any subsequent determinations in the same "case", in the form of subsequent administrative reviews or sunset reviews. A close examination of the EC panel request in the original dispute and of the reports of the original panel and of the Appellate Body shows that what the European Communities challenged in its "as applied" claims in that case, and therefore what the panel and the Appellate Body actually ruled on, was the use of zeroing in calculating margins of dumping in the context of specific "determinations", either original investigations or administrative reviews, which the European Communities had explicitly identified.
8.72.
While, in the abstract, the term "amendment" might be understood to include any subsequent measure that bears some relationship to or somehow modifies the measures that were specifically identified in the original dispute as the measures at issue, we are of the view that, in the circumstances of this dispute, the term "amendment" must be read as referring to amendments of the nature identified by the United States – amendments to correct the original investigation and administrative review determinations specifically identified by the European Communities to correct for ministerial or similar errors615 or, in some cases, to amend the determination following US court rulings.616
8.73.
The EC argument that the term "amendment" extends to the subsequent reviews finds, in our view, no support in the manner in which the measures at issue were described in the original dispute. Put simply, even assuming that it could have done so, the European Communities did not frame its claims, in the original dispute, as a challenge of (i) specific original investigations (or administrative reviews), including various "aspects" of these determinations and (ii) any subsequent determinations that might be adopted by the USDOC in the context of the same AD order. It limited itself to the former, and did not raise the latter.
8.74.
We find, in this respect, the EC request for the establishment of the panel in the original dispute, to be of particular assistance. We recall that the terms of reference of a dispute are dependent on a party's request for the establishment of a panel – measures not "identified" in that request are not before the panel, and therefore are not the subject of any DSB recommendations and rulings. The EC request for the establishment of a panel in the original dispute sheds light, we believe, on the meaning of the term "amendment" in the context of the original dispute. Paragraph 3.2 of that request reads:

"In the specific anti-dumping proceedings annexed to the present request, the United States applied the methodologies and the laws, regulations, administrative procedures and measures described under point 2 above. [i.e., pertaining to "zeroing"]. In consequence, the European Communities considers that the determinations of dumping by DOC, the determinations of injury by the United States International Trade Commission, the imposition of definitive duties in the original investigations and the outcome of the administrative review investigations as detailed in the annexes are inconsistent with the AD Agreement...." (underline added).

8.75.
As indicated above, Annex I to the EC original panel request listed original investigation "cases", with different columns for (1) the DOC Final Determination in the case, (2) the Final USITC Determination, and (3) the Final AD Order. Similarly, Annex II provided a list of the administrative review "cases", with columns identifying (1) the reference to the publication of the Final Results, (2) the exporters concerned and the relevant dumping margin found, and (3), the period covered by the review. The European Communities treated subsequent administrative reviews under the same AD order as separate "cases". There are five instances where the European Communities listed two successive administrative reviews as separate "cases"; equally, Annex II includes some administrative reviews adopted pursuant to an original investigation included in Annex I (e.g., cases 21 and 22 of Annex II are two successive administrative reviews pertaining to the original investigation reported in Annex I as case 11).617
8.76.
There is no indication that the subsequent administrative reviews were included by the European Communities as "amendments" – they are clearly identified as distinct measures. The two Annexes also include specific references to "amendments". In each case, the "amendment" referred to in the Annex is an amendment of the specific measure listed to correct for ministerial errors and/or as a result of litigation in US courts.618
8.77.
In our view, there is no doubt the EC panel request in the original dispute did not ascribe to the term "amendment" the broad meaning that the European Communities now ascribes to it.
8.78.
The European Communities argued, in its Opening Statement, that the United States had tried, without success, to change the description of the measures when the panel in the original dispute issued its descriptive part, but that the original panel declined to do so, considering that the description of the measures was clear and respected the EC description of the measures.619 The European Communities referred us to paragraphs 6.12-6.13 of the report of the original panel, which read as follows:

"The United States requests the Panel to replace paragraph 2.6 of the Report with paragraph 2.4 of the original draft descriptive part of the Report. The United States objects in particular to the inclusion in this paragraph of references to three kinds of 'measures': (1) the Issues and Decision Memoranda; the (2) Final Margin Program Logs and Outputs; and (3) assessment instructions. The United States considers that these three measures are not part of the request for establishment of a panel. The European Communities objects to the amendments suggested by the United States.

When read in light of the relevant paragraphs of the First Written Submission of the European Communities, as referred to in footnotes 21 and 22 of the Report, it is clear to us that paragraph 2.6 of the Report does not treat the Issues and Decision Memoranda, the Final Margin Program Logs and Outputs, and the assessment instructions as three separate categories of measures but as aspects of the measures at issue. Thus, paragraph 2.6 of our Report does not imply that we are presented with a request for separate findings on the Issues and Decision Memoranda, the Final Margin Program Logs and Outputs and the assessment instructions. While it is certainly true that there is no express mention of these 'measures' in the request for the establishment of a panel, they clearly form part of the measures mentioned in that document. Therefore, we have not made the change requested by the United States." (footnotes omitted, underline added)

8.79.
The European Communities contends that the original panel's decision in this regard demonstrates that the term "amendments" includes subsequent reviews. We do not believe paragraphs 6.12-6.13 can be read this broadly. At the most, the original panel's decision may suggest that the original panel considered that these "aspects" of each of the measures at issue were covered by the reference to "amendments".620 It does not in any way suggest that subsequent determinations in the form of original investigations or administrative reviews are "amendments". In fact, the discussion in paras. 6.12-6.13 of the report of the original panel reinforces our view that the "amendments" at issue in the original dispute did not include any subsequent administrative review or sunset review: in the second paragraph, the original panel indicates that it considered that the "measures" before it were each of the 15 original investigations and 16 administrative reviews at issue, and that it viewed each of the Issues and Decision Memoranda, the Final Margin Program Logs and Outputs, or assessment instructions not as "measures" but as "as aspects of the measures at issue".
8.80.
In sum, we reject the EC view that the term "amendments" covers any subsequent review adopted under the same AD order as either an original investigation or administrative review specifically challenged in the original proceeding.621 The conclusion suggested by the European Communities simply cannot be reconciled with the manner in which the European Communities itself framed the measures at issue in the original dispute.622
8.81.
We note that the European Communities refers us to the Appellate Body report in Chile – Price Band in which, it argues, the Appellate Body "interpreted the reference to 'amendments' or 'any amendments' as part of the measures at issue in panel requests in broad terms".623 The European Communities notes that in its report in that case, the Appellate Body stated:

"If the terms of reference in a dispute are broad enough to include amendments to a measure—as they are in this case—and if it is necessary to consider an amendment in order to secure a positive solution to the dispute—as it is here—then it is appropriate to consider the measure as amended in coming to a decision in a dispute".624

8.82.
The European Communities also argues that, following the same approach, the panel in US – Shrimp (Thailand) concluded that the inclusion of the language "any amendments or extensions to the [measure at issue]" in Thailand's panel request was "broad enough" to allow for the inclusion of a modification of the original measure.625
8.83.
Both of the reports referred to by the European Communities concern the question of whether amendments to the measures at issue in an original dispute, which are adopted during the course of panel proceedings, may fall within that panel's terms of reference. The Appellate Body in Chile – Price Band found that the amendment at issue in that dispute should be considered as part of the measure at issue for two reasons. First, the "amendment" at issue clarified the legislation that established the measure at issue and did not change the original measure into something different from what was in force before the amendment.626 Second, as noted by the European Communities, the panel request in that case was broad enough to cover "amendments" to the measure at issue.627 The US – Shrimp(Thailand) panel reached a similar conclusion on similar grounds. It found that the amendment at issue in that case "seeks to clarify the legislation that established the measure at issue and does not change the essence of the original measure into something different than what was in force before its issuance".628
8.84.
Besides the fact that we are not, in this case, dealing with an amendment to a measure in the course of an original proceeding, but rather, to disputed allegations that certain subsequent measures are "amendments" to a measure found to be WTO-inconsistent in an original proceeding, one additional notable difference exists between the situation in the present dispute and those relied on by the European Communities. For the parallel drawn by the European Communities between these cases and the situation at hand to be apt, the subsequent reviews – administrative reviews and sunset reviews – allegedly before us would have had to merely clarify the terms of the original investigations or (and, in certain cases) administrative reviews that were at issue in the original dispute, without modifying the essence or the effects of these measures. We do not understand the European Communities to advocate such an extreme position, nor, in our view, would such a position be tenable. Thus, the analogy drawn by the European Communities is, in our view, inapposite.

(iii) Whether the subsequent reviews fall within our terms of reference as "omissions" or "deficiencies" in the US implementation of the DSB's recommendations and rulings

8.85.
The European Communities also argues that the subsequent reviews listed in the Annex to its Article 21.5 panel request fall within our terms of reference as "omissions" or "deficiencies" in the US implementation of the DSB's recommendations and rulings.629
8.86.
We understand this argument to be primarily dependent on the EC argument that the subsequent reviews are "amendments" to the measures at issue in the original dispute, an argument we have rejected. Even if the European Communities intends this argument to be self-standing, and it is far from clear from the EC arguments that this is the case, we do not consider that we need to address it separately in the context of determining whether the subsequent reviews fall within our terms of reference. We examine in the next section of our report whether the subsequent reviews are measures taken to comply because they are closely connected with the measures at issue in the original dispute and/or the DSB's recommendations and rulings. We conduct this analysis in view of the fact that our authority extends not only to those acts which the United States has taken to comply, including allegedly the subsequent reviews adopted after the expiry of the reasonable period of time, but also to those acts which the United States allegedly should have taken to bring itself into compliance. As a result, any "omission" or "deficiency" of the United States in the form of a subsequent review would be captured in the analysis below and we do not consider that the characterization of the EC claims as challenging omissions and deficiencies in the US implementation can broaden the scope of this proceeding to measures which we otherwise determine not to fall within our terms of reference. We recall in this respect that we are, at this stage, addressing the procedural question of whether the subsequent reviews fall within the scope of this proceeding as measures that should be regarded as "measures taken to comply", and not the substantive question of whether the United States has omitted to comply with the DSB's recommendations and rulings, a question which we address below, in section E of our findings.

(iv) Whether the subsequent reviews are measures taken to comply because they have a sufficiently close nexus with the measures at issue in the original dispute and the DS B recommendations and rulings

Relevant legal principles

8.87.
We now turn to the EC argument that the "subsequent reviews" and any associated assessment instructions are "measures taken to comply" because they bear a sufficiently close nexus with, or are closely connected to, the DSB's recommendations and rulings, and with the measures at issue in the original proceeding. In making this argument, the European Communities relies in particular on the reports of the panel in US – Upland Cotton and of the Appellate Body in US – Softwood Lumber IV (Article 21.5 – Canada).
8.88.
The terms of Article 21.5 DSU themselves "delimit a particular category of measures that fall within the scope of proceedings conducted pursuant to that provision";630 Article 21.5 proceedings "do not concern just any measures of a Member of the WTO, rather, Article 21.5 proceedings are limited to 'those measures taken to comply with the recommendations and rulings' of the DSB."631 Further, Article 21.5 proceedings concern a disagreement as to either the existence or the consistency with a covered agreement of such measures taken to comply – "or a combination of both, in situations where the measures taken to comply, through omissions or otherwise, may achieve only partial compliance."632 One of the preliminary steps in an Article 21.5 proceeding is therefore to decide whether the measures challenged by the claimant are "measures taken to comply" with the DSB's recommendations and ruling and therefore fall within the terms of reference of the compliance panel.
8.89.
Further, not only measures taken "in the direction of", or "for the purpose of achieving" compliance may fall within the competence of an Article 21.5 panel. In US – Softwood Lumber IV (Article 21.5 – Canada), the Appellate Body noted that "[o]n its face... the phrase 'measures taken to comply' seems to refer to measures taken in the direction of, or for the purpose of achieving, compliance".633 But crucially, the Appellate Body added that :

"The fact that Article 21.5 mandates a panel to assess 'existence' and 'consistency' tends to weigh against an interpretation of Article 21.5 that would confine the scope of a panel's jurisdiction to measures that move in the direction of, or have the objective of achieving, compliance. These words also suggest that an examination of the effects of a measure may also be relevant to the determination of whether it constitutes, or forms part of, a 'measure[] taken to comply'".634

8.90.
WTO panels and the Appellate Body have made it clear that it is for the Article 21.5 panel to determine whether a given measure is a "measure taken to comply": while an implementing Member's characterization of a measure as being one "taken to comply" should be taken into consideration by the panel, it is not determinative.635 Equally, the compliance panel is not bound by the complainant's characterization of a measure as being one "taken to comply".636
8.91.
As noted by the parties and third parties to this dispute, a number of prior WTO panels and the Appellate Body have found that measures not characterized by the implementing Member as being taken to comply nonetheless were within their terms of reference, on the basis of the close connection of those measures with either the "declared" measures taken to comply, the measures at issue in the original dispute, and/or the DSB's recommendations and rulings.
8.92.
In Australia – Salmon (Article 21.5 – Canada),637 the compliance panel determined that an import ban on salmonids enacted by the Australian State of Tasmania during the course of its proceedings, and therefore not explicitly identified in Canada's Article 21.5 panel request, fell within its terms of reference. The panel reasoned that if a compliance panel were to leave it to the full discretion of the implementing Member to decide whether or not a measure is one "taken to comply", that implementing Member could avoid any scrutiny of certain measures "even where such measures would be so clearly connected to the panel and Appellate Body reports concerned, both in time and in respect of the subject-matter, that any impartial observer would consider them to be measures 'taken to comply'".638
8.93.
The panel in Australia – Leather II (Article 21.5 – US) applied a similar approach to find that it could examine a measure that it found to be "inextricably linked" to the steps taken by the implementing Member to comply with the DSB's recommendations and rulings, in view of both its timing and its nature.639 This dispute concerned the implementation, by Australia, of a DSB recommendation to "withdraw the subsidy", a grant, in that case, under Article 4.7 of the SCM Agreement. In addition to challenging the measure that Australia declared it had taken to comply (a partial repayment of the grant), the United States also included in its claims a new loan granted to the grant beneficiary's parent company. Australia argued that the loan was not "part of the implementation of the DSB rulings and recommendations" and was not part of the measures that had been notified to the DSB. The panel rejected Australia's objections:

"The 1999 loan is inextricably linked to the steps taken by Australia in response to the DSB's ruling in this dispute, in view of both its timing and its nature. In our view, the 1999 loan cannot be excluded from our consideration without severely limiting our ability to judge, on the basis of the United States' request, whether Australia has taken measures to comply with the DSB's ruling."640

8.94.
The Appellate Body upheld a similar conclusion by the panel in US – Softwood Lumber IV (Article 21.5 – Canada).641 In the original proceeding in that case, the panel and the Appellate Body had found that the calculation of the amount of the subsidy in the final CVD determination on softwood lumber from Canada was inconsistent with the SCM Agreement due to the USDOC's failure to conduct a "pass-through" analysis in respect of certain sales. A few days before the expiration of the reasonable of time, the USDOC published a Section 129 determination to implement the DSB recommendations and rulings, in which it performed a pass-through analysis; the rate of subsidization established in the determination became the new cash deposit rate. Four days later, the USDOC published the final results of the first administrative review in the same case, which established a new cash deposit rate. In the review, the USDOC applied the same pass-through analysis that it had used in the Section 129 determination, stating that it did so in view of the findings made in the original dispute. The compliance panel held that the USDOC's treatment of pass-through in the first administrative review, but not the administrative review determination in its entirety, fell within its terms of reference because (i) it was clearly connected to the panel and Appellate Body reports concerning the Final CVD Determination, and (ii) it was inextricably linked to the treatment of pass-through in the Section 129 determination. On appeal, the Appellate Body endorsed the "nexus-based" test used by the panel and upheld its application in the particular circumstances of the dispute.642 The United States had argued on appeal that the determination in the First Assessment Review was not a measure taken to comply. In explaining that a panel's mandate under Article 21.5 is not necessarily limited to examining those measures declared to be "taken to comply" by the responding party, the Appellate Body indicated that:

"[S]ome measures with a particularly close relationship to the declared 'measure taken to comply', and to the recommendations and rulings of the DSB, may also be susceptible to review by a panel acting under Article 21.5. Determining whether this is the case requires a panel to scrutinize these relationships, which may, depending on the particular facts, call for an examination of the timing, nature, and effects of the various measures. This also requires an Article 21.5 panel to examine the factual and legal background against which a declared 'measure taken to comply' is adopted. Only then is a panel in a position to take a view as to whether there are sufficiently close links for it to characterize such an other measure as one 'taken to comply' and, consequently, to assess its consistency with the covered agreements in an Article 21.5 proceeding."643

8.95.
More recently, the panel in US – Upland Cotton (Article 21.5 – Brazil) considered that:

"[A] claim relating to a measure that has a sufficiently close nexus with the measure taken to comply or with the DSB recommendations and rulings in the original proceeding can be within the scope of Article 21.5 even where that measure itself has not been the subject of DSB recommendations and rulings in the original proceeding."644

8.96.
In that case, the panel considered that a claim rejected by the original panel in a finding that was reversed by the Appellate Body, but with respect to which the Appellate Body found itself unable to complete the analysis in the original proceeding, was within its terms of reference. The panel found that the measures in question were measures with a "particularly close relationship to the declared measure taken to comply and to the recommendations and rulings of the DSB"; in making this finding, it relied on the Appellate Body's findings in US – Softwood Lumber IV (Article 21.5 – Canada). The Appellate Body upheld the panel's conclusion that the measures at issue fell within the panel's terms of reference, based on a different reasoning. The Appellate Body considered that its reasoning in US – Softwood Lumber (Article 21.5 – Canada) was not applicable in the instant case: the dispute in Lumber concerned the identification of closely connected measures so as to avoid circumvention, whereas in Cotton the issue was whether a single programme may be permissibly atomized for the purposes of Article 21.5 review.645646
8.97.
We consider that a nexus-based analysis, as articulated in Australia – Leather II (Article 21.5 – US), Australia – Salmon (Article 21.5 – Canada) and US – Softwood Lumber (Article 21.5 – Canada) is useful in examining which measures challenged by a complainant properly fall within the scope of an Article 21.5 proceeding. A number of considerations are at play in such an analysis. First, because of the necessary link with the original dispute and given that adopted panels and Appellate Body reports constitute a final resolution of the dispute between the parties647, there are inherent limits on the claims that may be submitted to an Article 21.5 panel.648 Yet, it is equally clear that "these limits should not allow circumvention by Members by allowing them to comply through one measure, while, at the same time, negating compliance through another".649 We also recall that Article 21.5 proceedings cover not only a Member's actions to implement DSB recommendations and rulings, but also its omissions – i.e.,its failure to take actions to do so. Finally, Article 3.3 of the DSU provides that one of the objectives of the WTO dispute settlement process is the "prompt settlement" of disputes.650 These considerations, in our view, favour the resolution of claims before an Article 21.5 panel where the contested measures are closely connected with the measures at issue in the original dispute or with the steps taken by the Member to implement the DSB's recommendations and ruling.651

Application of a nexus-based test in the context of trade remedy disputes

8.99.
We now examine, whether, in light of the facts before us, the subsequent reviews challenged by the European Communities are so closely connected to the measures at issue in the original dispute and to the DSB's recommendations and rulings as to warrant that we take them into consideration in assessing the US implementation of the DSB's recommendations and rulings. To do so, we first examine the links, in terms of their nature and of their effects, that exist in general between, on the one hand, the subsequent reviews challenged by the European Communities and, on the other hand, the measures at issue in the original dispute and the recommendations and rulings of the DSB. Next, we consider the links, in terms of the timing of the determinations at issue, to the US implementation of the DSB's recommendations and rulings. Finally, we apply these principles to each of the subsequent reviews challenged by the European Communities to determine whether each review falls within our terms of reference.
8.100.
We note at the outset that the European Communities asks that we "not mechanistically" apply the distinction between "as such" and "as applied" findings.652 By this, we understand the European Communities to mean that we should disregard the fact that only "as applied" findings resulted from the original dispute with respect to administrative reviews; in other words, that all the subsequent administrative reviews are before us because they involve the use of zeroing.653 Conversely, the United States submits that accepting the EC argument that the subsequent reviews fall within our terms of reference would convert the ruling of the Appellate Body with respect to administrative reviews into an "as such" finding. We observe in this respect that the findings of the Appellate Body regarding the administrative reviews at issue in the original dispute were "as applied" findings, that the European Communities itself had made a distinction, in the original dispute, between its "as applied" and its "as such" claims, and that in any case, the US obligation to implement with respect to administrative reviews flows from these findings of the Appellate Body, and these findings only. There is indeed, as the United States notes, a risk that by the application of a nexus-based analysis, a compliance panel would in effect broaden the scope of the DSB's recommendations and rulings adopting the findings made in the original dispute. We have, in conducting our analysis, paid particular attention to the fact that the findings with respect to zeroing in the original dispute concerned the use of zeroing in the specific original investigations and administrative reviews at issue in that case, and not the US zeroing methodology "as such".654 Proceeding in this manner does not amount to applying the "as such" vs. "as applied" distinction mechanistically, it only reflects the nature of the findings made in the original dispute.

Nature and effects

8.101.
We note that administrative reviews, sunset reviews and other types of reviews such as new shipper reviews or changed circumstances reviews are conducted in the ordinary course of the application of antidumping and countervailing duty laws by Members operating retrospective duty assessment systems. Similarly, Members operating prospective duty assessment systems routinely conduct sunset and other types of reviews, as well as refund proceedings. For an administrative review or sunset review to be considered to have a "close connection" with the DSB's recommendations concerning a measure at issue in the original proceeding, the mere fact that the Member made a determination in a review involving the same products and countries as the AD measure that was found to be WTO-inconsistent in the original dispute cannot be sufficient. It is obvious that not every determination made in the context of a given AD proceeding – which can span several years, if not decades – is subject to review by an Article 21.5 panel for the mere reason that another, previous, determination made in the same proceeding was found to be WTO-inconsistent in an original WTO dispute at an earlier point in time. It is only where a specific aspect of the "subsequent" determination is closely related to the violation found in the original dispute, and affects the Member's implementation of the DSB's recommendations and rulings in respect of that violation, that that specific aspect of the subsequent determination may, under certain circumstances, be subject to review in the context of a compliance proceeding. Here, our analysis is limited to the question of whether the use of zeroing in the calculation of margins of dumping in the subsequent reviews bears a sufficiently close nexus or close connection to the findings of the panel and Appellate Body in the original dispute so as to warrant our consideration of that precise aspect of the subsequent reviews. No other aspect of the subsequent reviews is before us.
8.102.
We recall that in US – Softwood Lumber IV (Article 21.5 – Canada), the panel and the Appellate Body found that close links existed, in terms of the nature and effects, between the three measures at issue – the original determination found to be WTO-inconsistent in the original proceeding, the Section 129 determination made by the United States to implement the DSB's recommendations and rulings, and the results of the first administrative review. All three were CVD proceedings conducted by the USDOC, concerning the same product, from the same country, and all three involved the calculation of the rate of subsidization; further the same, new "pass-through" methodology applied by the USDOC to implement the DSB's recommendations in the Section 129 determination was also used in the first administrative review. The panel and the Appellate Body also took account of the effects of the publication of the results of the first administrative review, in particular, the fact that the cash deposit rate established in the Section 129 determination was replaced by that calculated in the first administrative review.655
8.103.
In general terms, the successive determinations of different types are made in the context of a single trade remedy proceeding, involving the imposition and assessment of anti-dumping duties on imports of a particular subject product, from the same country. They all concern the imposition and collection of anti-dumping duties under a particular anti-dumping order. In this sense, these determinations form part of a continuum of events and measures that are all inextricably linked; indeed, this continuum is largely determined by the provisions of the Anti-Dumping Agreement.
8.105.
The United States submits, in this respect, that the legal bases for the findings of the panel and Appellate Body regarding original investigations and administrative reviews in the original dispute differed. The original panel found that the use of "model zeroing" in the original investigations at issue, and the US "zeroing methodology" as it relates to original investigations, were inconsistent with Article 2.4.2 of the Anti-Dumping Agreement, while the Appellate Body found that the use of "simple zeroing" in the administrative reviews at issue was inconsistent with Articles 9.3 of the Anti-Dumping Agreement and VI:2 of the GATT 1994. The United States notes that, by contrast, in US – Softwood Lumber (Article 21.5 – Canada), the legal basis for the obligation to conduct a "pass-through" analysis in a countervailing duty proceeding did not vary depending on whether the issue arose in an investigation or an assessment review.657 While the United States is correct in this respect, it overlooks a fundamental aspect of the findings of the original panel and of the Appellate Body.
8.106.

The original panel relied on the Appellate Body's conclusion, in EC – Bed Linen and US – Softwood Lumber V, that when a margin of dumping is calculated on the basis of multiple averaging by model type, the margin of dumping for the product in question must reflect the results of all such comparisons, including weighted-average export prices that are above the normal value for individual models.658 The Appellate Body, in EC – Bed Linen, had found that Article 2.4.2 requires that "margins of dumping" be established with respect to the product under investigation as a whole, on the basis of a comparison including all comparable export transactions. The Appellate Body similarly concluded in US – Softwood Lumber V that "dumping" and "margins of dumping" can only be established for the product under investigation as a whole. It reached that conclusion on the basis of, inter alia, Article VI:1 of the GATT 1994 and Article 2.1 of the Anti-Dumping Agreement (noting that both provisions refer to the dumping of "product(s)"). The Appellate Body thus reasoned that the result of all comparisons at the sub-group level must be included in calculating a margin of dumping for the product as a whole. The panel and the Appellate Body, in the original dispute in the present case, recognized the same basic obligation deriving from the definition of "dumping" and "margin of dumping" under Article 2 of the Anti-Dumping Agreement – namely, that the margin of dumping, under that provision, must be calculated for the "product as a whole", and consequently, that "if the margin of dumping is calculated on the basis of multiple comparisons made at an intermediate stage, it is only on the basis of aggregating all these intermediate results that an investigating authority can establish the margins of dumping for the product as a whole".659 Thus, while the panel and the Appellate Body's findings of inconsistency were made under different legal provisions, they were premised on the same fundamental obligation under the Anti-Dumping Agreement, following from the definition of the term "margin of dumping" under the Agreement.

8.107.
The original dispute concerned 15 original investigation determinations and 16 administrative review determinations, whereas the subsequent reviews are of two types – administrative reviews and sunset reviews.660 There are four different relationships between the measures at issue in the original dispute and the subsequent reviews at issue:

(a) In some cases, the measure at issue in the original dispute was an original investigation and the subsequent review challenged is an administrative review;

(b) In others, the measure at issue in the original dispute was an original investigation and the subsequent review challenged is a sunset review;

(c) In yet other cases, both the measure at issue in the original dispute and the subsequent review challenged are administrative reviews;

(d) Finally, in some cases, the measure at issue in the original dispute is an administrative review and the subsequent review challenged is a sunset review.