European Union – Anti-Dumping Measures on Biodiesel from Indonesia

Request for Consultations by Indonesia

The following communication, dated 10 June 2014, from the delegation of Indonesia to the delegation of the European Union and to the Chairperson of the Dispute Settlement Body, is circulated in accordance with Article 4.4 of the DSU.

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My authorities have instructed me to request consultations with the European Union in accordance with Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes ["DSU"], Article XXII:1 of the General Agreement on Tariffs and Trade 1994 ["GATT 1994"], and Articles 17.2 and 17.3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 ["the Anti-Dumping Agreement"], with respect to the following measures, including any subsequent amendments, replacements, related measures and implementing measures, which the Government of the Republic of Indonesia ["Indonesia"] considers to be inconsistent with the obligations of the European Union under the relevant provisions of the WTO Agreements:

I.      Article 2(5) and Article 2(6)(b) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community ["Basic AD Regulation"]^[1] as well as any subsequent amendments, replacements, implementing measures and related instruments or practices.

II.     The anti-dumping measures imposed by the European Union on imports of biodiesel originating in, inter alia, Indonesia,^[2] and the underlying investigation.

I.     Claims concerning the Basic AD Regulation^[3]

A.     The second paragraph of Article 2(5) of the Basic AD Regulation provides that "[i]f costs associated with the production and sale of the product under investigation are not reasonably reflected in the records of the party concerned, they shall be adjusted or established on the basis of the costs of other producers or exporters in the same country or, where such information is not available or cannot be used, on any other reasonable basis, including information from other representative markets." Indonesia considers that Article 2(5) of the Basic AD Regulation is inconsistent as such with, inter alia, the following provisions of the Anti-Dumping Agreement, the GATT 1994 and the Marrakesh Agreement Establishing the World Trade Organization ("Marrakesh Agreement"):

1.     Article 2.2 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994, because these provisions do not permit the adjustment or establishment of the cost of production on the basis of data or information other than that pertaining to the production in the country of origin.

2.     Articles 2.2 and 2.2.1.1 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994 because these provisions require that the costs be calculated on the basis of the records kept by the producers under investigation when such records are in accordance with the generally accepted accounting principles of the exporting country and reasonably reflect the costs associated with the production and sale of the product under consideration and do not permit the adjustment or replacement of the costs actually incurred by the producers under investigation by other costs, simply because they are considered to be artificially low, depressed or distorted; and because these provisions require that the costs used be associated with the production and sale of the product under consideration.