SUMMARY:

Decision:

The WTO Appellate Body has delivered a mixed verdict in Argentina's challenge to EU anti-dumping measures on biodiesel. The Appellate Body rejected Argentina's claims that part of the EU Basic Regulation on anti-dumping was WTO-inconsistent "as such". However, it affirmed that the EU anti-dumping measure on imports of biodiesel was WTO-inconsistent "as applied".

Significance of Decision:

This is an important ruling, as it reduces the discretion available to investigating authorities when they make determinations that a product is dumped, particularly where the authority considers that the records of the exporter or producer do not reasonably reflect the actual costs of production. The decision will be directly relevant to the ongoing debate about how investigations involving imports from China should be conducted following the December 11, 2016 expiration of the non-market economy ("NME") provision of China's WTO Protocol of Accession.

Article 2.1 of the Anti-Dumping Agreement provides in part that a product is considered to be "dumped" when it is "introduced into the commerce of another country at less than its normal value…." Other provisions of Article 2 set out rules on determining "normal" value, including by comparison to the cost of production in the country of origin. Article 2.2.1.1 provides, more specifically, that "costs shall normally be calculated on the basis of records kept by the exporter or producer under investigation".

In the present case, the EU considered that the costs recorded by the Argentine producers were distorted by the existence of Argentina's export tax system, and so it chose a surrogate price instead. The EU also argued that Article 2.2.1.1 is informed by a "standard of reasonableness" that allows an authority to disregard the records kept by the exporter or producer. The Appellate Body found that such a position had no textual support in Article 2.2.1.1, and rejected that notion of "an additional or abstract standard of 'reasonableness' that governs the meaning of 'costs'" in this provision.

The Appellate Body also found that when relying on any out-of-country information to determine the 'cost of production in the country of origin' under Article 2.2, an investigating authority may need to "adapt that information" to accurately determine the cost of production in the country of origin.

This ruling will form part of the ongoing discussion about the effect of the expiration of the NME provisions of China's WTO Accession Protocol. Under the NME practice, investigating authorities may use a methodology that is not based on a strict comparison with domestic prices or costs in China. A portion of these provisions will expire on December 11, 2016, but the Protocol does not clarify whether or how Members may continue to use NME methodologies after that. Some argue the Protocol requires the automatic "graduation" of China to market economy status under Members' national anti-dumping laws, while others argue the Protocol requires no change to investigating authorities' current NME practice in anti-dumping investigations of Chinese imports.

On October 19, 2016, the EU announced its intention to "propose a new anti-dumping methodology to capture market distortions linked to state intervention in third countries that mask the true extent of dumping practices". It added that "[w]here distortions are found, prices and cost will be disregarded for calculating dumping and the Commission will use other available benchmarks, including costs and prices in other economies". The EU proposal "will not grant 'market economy status' to any country but ensure that the EU's trade defence instruments are adapted to face the new challenges and legal and economic realities, while maintaining an equivalent level of protection".

The Appellate Body's decision will reduce the discretion of investigating authorities in anti-dumping investigations, particularly in the determination of cost of production. However, its effect on the NME debate remains to be determined.

REPORT:

A. Background

This dispute arose from an anti-dumping investigation on imports of biodiesel from Argentina and Indonesia. (Indonesia has challenged the EU measures separately in DS480.) The EU investigating authority concluded, among other things, that "the domestic prices of the main raw material used by biodiesel producers in Argentina were…lower than the international prices due to the distortion created by the Argentine export tax system and, consequently, the costs of the main raw material were not reasonably reflected in the records kept by the Argentinean producers…." The EU therefore disregarded "the actual costs of soya beans (the main raw material purchased and used in the production of biodiesel) as recorded by the companies concerned in their accounts" and used instead a "surrogate price for soybeans".

Argentina's challenge included "as applied" claims against the anti-dumping measure imposed by the EU on imports of biodiesel, as well as "as such" claims against a provision of the EU Basic Regulation related to the determination of dumping margins.

B. "As applied" claims against the EU anti-dumping measure

Investigating authority cannot disregard producers' records: there is no "abstract standard of reasonableness"

Argentina argued that the EU violated the Anti-Dumping Agreement in the investigation of imports of biodiesel by failing to calculate the cost of production of the product under investigation on the basis of the records kept by the producers.

Article 2.2.1.1 of the Anti-Dumping Agreement provides in part that "costs shall normally be calculated on the basis of records kept by the exporter or producer under investigation, provided that such records…reasonably reflect the costs associated with the production and sale of the product under consideration".

The Appellate Body found that the condition in Article 2.2.1.1 with respect to the records kept by the exporter or producer "suitably and sufficiently correspond to or reproduce those costs incurred by the investigated exporter or producer that have a genuine relationship with the production and sale of the specific product under consideration".

The EU argued that Article 2.2.1.1 is "informed by a standard of 'reasonableness' that permits an investigating authority to disregard the records kept by the exporter or producer if the authority determines that the costs in such records are not reasonable". The Appellate Body rejected this argument, saying that it failed to see "any textual support" in Article 2.2.1.1 for such a position. It added that "[t]o the extent that costs are genuinely related to the production and sale of the product under consideration in a particular anti-dumping investigation, we do not consider that there is an additional or abstract standard of 'reasonableness' that governs the meaning of 'costs'" in this provision.

The Appellate Body agreed with the Panel that the EU's determination "that domestic prices of soybeans in Argentina were lower than international prices due to the Argentine export tax system was not, in itself, a sufficient basis for concluding that the producers' records did not reasonably reflect the costs of soybeans associated with the production and sale of biodiesel, or for disregarding the relevant costs in those records when constructing the normal value of biodiesel". It therefore affirmed the Panel's ruling that the EU "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".

Surrogate price did not represent "cost of production in the country of origin"

Article 2.2 sets out rules to determine the margin of dumping, including by comparison with "the cost of production in the country of origin plus a reasonable amount for administrative, selling and general costs and for profits".

The Appellate Body found that the phrase "cost of production in the country of origin" in Article 2.2 of the Anti-Dumping Agreement and GATT Article VI:1 "do not limit the sources of information or evidence that may be used in establishing the cost of production in the country of origin to sources inside the country of origin". However, it stressed that "[w]hen relying on any out-of-country information to determine the 'cost of production in the country of origin' under Article 2.2, an investigating authority has to ensure that such information is used to arrive at the 'cost of production in the country of origin', and this may require the investigating authority to adapt that information".

In the context of the current dispute, the Appellate Body agreed with the Panel that "the surrogate price for soybeans used by the EU authorities to calculate the cost of production of biodiesel in Argentina did not represent the cost of soybeans in Argentina for producers or exporters of biodiesel". It therefore affirmed that the EU acted inconsistently with Article 2.2 of the Anti Dumping Agreement (and Article VI:1 of the GATT ) "by not using the cost of production in Argentina when constructing the normal value of biodiesel".

"Margin of dumping" must be calculated consistently with the disciplines of Article 2

Article 9.3 of the Anti-Dumping Agreement provides in part that "[t]he amount of the anti dumping duty shall not exceed the margin of dumping as established under Article 2". The Appellate Body quoted the EU position that "what the text of Article 9.3 requires is merely a comparison between the anti-dumping duties actually imposed and the dumping margin actually calculated by the investigating authority, irrespective of the investigating authority's possible errors when calculating the dumping margin" [original emphasis].

The Appellate Body rejected that interpretation, affirming the reasoning of the Panel that the "margin of dumping" in Article 9.3 "relates to a margin that is established in a manner subject to the disciplines of Article 2 and which is therefore consistent with those disciplines". It also upheld the Panel's determination that the EU breached Article 9.3 "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" and GATT Article VI:1.

Injury determination: EU non-attribution analysis upheld

Argentina had challenged the EU determination that the EU industry suffered injury as a result of the alleged dumped imports of biodiesel. The Panel upheld part of this challenge, but dismissed Argentina's claims against the EU's non-attribution analysis (i.e., injury caused by other factors must not be attributed to the dumped imports). The Appellate Body found "no error" in the Panel's application of the non-attribution provisions.

C. "As such" claims against the EU Basic Regulation dismissed

Argentina argued that part of Article 2(5) of the EU Basic Regulation was WTO-inconsistent as such. It made two "as such" claims, under Article 2.2.1.1 and Article 2.2 of the Anti-Dumping Agreement. Neither the Panel nor the Appellate Body accepted these claims.

Article 2(5) of the EU Basic Regulation provides that:

Costs shall normally be calculated on the basis of records kept by the party under investigation, provided that such records are in accordance with the generally accepted accounting principles of the country concerned and that it is shown that the records reasonably reflect the costs associated with the production and sale of the product under consideration.

If 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.

Argentina argued that under the second paragraph of this provision, when the EU authorities took the view that "the costs reported in an investigated producer's records reflect prices that are 'abnormally low' or 'artificially low' because of what they consider to be a 'distortion'", the Basic Regulation "requires the EU authorities to determine that the costs of production and sale of the product under investigation are not 'reasonably reflected' in the producer's records and, consequently, to reject or adjust those costs in establishing the investigated producer's costs of production and sale".

The Panel had rejected this claim. It agreed with the EU that Article 2(5) of the EU Basic Regulation "only lays down what the authorities can do – and allows them to exercise any one of the listed options for determining the costs of production – after they have made a determination…that the records do not reasonably reflect the costs" [original emphasis].

The Appellate Body agreed: "[l]ike the Panel, we do not see support in the text of the Basic Regulation, or in the other elements relied on by Argentina, for the view that it is in applying the second subparagraph of Article 2(5) that the EU authorities are to determine that the records of the party under investigation do not reasonably reflect the costs associated with the production and sale of the product under consideration when those records reflect prices that are considered to be artificially or abnormally low as a result of a distortion". The Appellate Body therefore rejected the claim that the second paragraph of Article 2(5) of the Basic Regulation was inconsistent with Article 2.2.1.1.

It similarly dismissed a claim against this provision under Article 2.2 of the Anti-Dumping Agreement. Argentina had argued that the second paragraph of Article 2(5) of the Basic Regulation mandated WTO inconsistent conduct.

The Appellate Body began its analysis of this issue by recalling its prior rulings on the "mandatory/discretionary" distinction:

Under the GATT 1947, panels distinguished between mandatory and discretionary legislation, finding that only legislation that mandated a violation of GATT obligations could be found to be inconsistent "as such" with those obligations. The distinction between mandatory and discretionary legislation turned on whether there was relevant discretion vested in the executive branch of government. The Appellate Body has since clarified that, as with any analytical tool, the importance of the "mandatory/discretionary" distinction may vary from case to case, and has, for this reason, cautioned against applying the distinction "in a mechanistic fashion".

It added that "the discretionary nature of the measure is no barrier to a challenge 'as such'". That said, the Appellate Body found that Argentina had not established that "where the costs of other domestic producers or exporters in the same country cannot be used, the EU authorities are required to use information from other representative markets that does not reflect the costs of production in the country of origin" [original emphasis]. It therefore rejected Argentina's claim that the Panel had acted inconsistently with its obligation under Article 11 of the Dispute Settlement Understanding to make an objective assessment of the matter before it.

Argentina made a second line of argument, that "even if the second subparagraph of Article 2(5) does not require WTO-inconsistent action, it is nevertheless WTO-inconsistent because it provides for the possibility that such action may be taken" [original emphasis]. The Appellate Body found that Article 2.2 of the Anti Dumping Agreement and Article VI:1 of the GATT "do not limit the sources of information or evidence that may be used in establishing the costs of production in the country of origin" but that "whatever the information that it uses, an investigating authority has to ensure that such information is used to arrive at the 'cost of production' 'in the country of origin'". Moreover, it reiterated that "[c]ompliance with this obligation may require the investigating authority to adapt the information that it collects".

Turning to the challenged EU measure, the Appellate Body found that "nothing in the second subparagraph of Article 2(5) of the Basic Regulation precludes the possibility that, when the EU authorities rely on 'information from other representative markets', they could adapt that information to reflect the costs of production in the country of origin, in a manner consistent with Article 2.2 of the Anti Dumping Agreement" and GATT Article VI:1. The Appellate Body affirmed the ruling of the Panel that "Argentina had not established that the second subparagraph of Article 2(5) of the Basic Regulation is inconsistent 'as such' with Article 2.2 of the Anti Dumping Agreement and Article VI:1(b)(ii) of the GATT 1994".

The Report of the WTO Appellate Body in European Union – Anti Dumping Measures on Biodiesel from Argentina (DS473) was released on October 6, 2016.