European
Union – Anti-Dumping Measures on Biodiesel from
Argentina
NOTIFICATION OF AN APPEAL BY the European union
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES
AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
The following communication, dated 20 May 2016,
from the Delegation of the European Union, is being circulated to Members.
_______________
Pursuant to Article 16.4 of the
DSU the European Union hereby notifies to the Dispute Settlement Body its
decision to appeal to the Appellate Body certain issues of law covered in the
Panel Report and certain legal interpretations developed by the Panel in the
dispute European Union – Anti‑Dumping
Measures on Biodiesel from Argentina (WT/DS473). Pursuant to Rule
20(1) of the Working Procedures for Appellate Review, the European Union
simultaneously files this Notice of Appeal with the Appellate Body Secretariat.
For the reasons to be further
elaborated in its submissions to the Appellate Body, the European Union
appeals, and requests the Appellate Body to reverse the findings, conclusions
and recommendations of the Panel, with respect to the following errors
contained in the Panel Report:[1]
a.
the Panel erred
when finding that the European Union acted inconsistently with Article 2.2.1.1
of the Anti-Dumping Agreement by "failing to calculate the cost of
production of the product under investigation on the basis of the records kept
by the producers". As a result, the European Union requests the Appellate
Body to reverse the Panel's findings in
paragraphs 7.247, 7.248, 7.249 and 8.1(c)(i) of its Report, which are based on
its legally erroneous reasoning in paragraphs 7.220-7.246;[2]
b.
the Panel erred
when finding that the European Union violated Article 2.2 of the Anti‑Dumping
Agreement and Article VI:1(b)(ii) of the GATT 1994 by "using a "cost"
that was not the cost prevailing "in the country of origin", namely,
Argentina, in the construction of the normal value". As a result, the
European Union requests the Appellate Body to reverse
the Panel's findings in paragraphs 7.260 and 8.1(c)(ii) of its Report, which are based on its legally
erroneous reasoning in paragraphs 7.255-7.259;
c.
the Panel erred
when finding that the European Union acted inconsistently with Article 9.3
of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 by "imposing
anti‑dumping duties in excess of the margin of dumping that should have been
established under Article 2 of the Anti-Dumping Agreement". In view of
those errors, the European Union requests the Appellate Body to reverse the Panel's findings in paragraphs 7.367 and
8.1(c)(vii) of its Report, which are based on its legally erroneous reasoning
in paragraphs 7.357- 7.366.
__________
[1] Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for
Appellate Review this Notice of Appeal includes an indicative list of the
paragraphs of the Panel Report containing the alleged errors, without prejudice
to the ability of the European Union to refer to other paragraphs of the Panel
Report in the context of its appeal.
[2] Only for the avoidance of doubt, we clarify that we include in the
scope of our appeal the statement in the second sentence of paragraph 7.296 of
the Panel Report, to the effect that, supposedly, nothing in Article 2.4
provides guidance when it comes to considering how normal value and export
price should be determined, including the question of whether or not a standard
of reasonableness informs not just the term reflect but also the determination
of the costs associated with production and sale. We provide this clarification
without prejudice to our right to refer to and disagree with other aspects of
the Panel's reasoning in our submissions.