DS: Colombia — Anti-Dumping Duties on Frozen Fries from Belgium, Germany and the Netherlands
This summary has been prepared by the Secretariat under its own responsibility. The summary is for general information only and is not intended to affect the rights and obligations of Members.
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Summary of the dispute to date
The summary below was up-to-date at
Complaint by the European Union
On 15 November 2019, the European Union requested consultations with Colombia regarding the anti-dumping duties imposed by Colombia on imports of potatoes, prepared or preserved (otherwise than by vinegar or acetic acid), frozen (frozen fries), originating in Belgium, the Netherlands and Germany.
The European Union claimed that the measures appear to be inconsistent with:
- Articles 1, 2.1, 2.4, 2.4.1, 2.6, 3.1, 3.2, 3.4, 3.5, 3.6, 3.7, 3.8, 5.1, 5.3, 5.4, 5.8, 6.1.2, 6.2, 6.4, 6.5, 6.5.1, 6.8, 6.9, 9.1, 9.2, 9.3, 11.1, 12.2, 12.2.2, 18.1 and paragraphs 3 and 6 of Annex II of the Anti-Dumping Agreement;
- Article 10 of the Customs Valuation Agreement; and
- Article VI of the GATT 1994.
Panel and Appellate Body proceedings
On 17 February 2020, the European Union requested the establishment of a panel. At its meeting on 28 February and 5 March 2020, the DSB deferred the establishment of a panel.
At its meeting on 29 June 2020, the DSB established a panel. Brazil, China, Honduras, India, Japan, the Russian Federation, Türkiye and the United States reserved their third-party rights.
On 13 July 2020, the European Union and Colombia informed the DSB that they had agreed to Procedures for Arbitration under Article 25 of the DSU in this dispute (“Agreed Arbitration Procedures”). These procedures, which were subsequently revised on 20 April 2021, were entered into by the parties “to give effect to communication JOB/DSB/1/Add.12” (that is, the Multi-Party Interim Appeal Arbitration Arrangement Pursuant To Article 25 Of The DSU (MPIA)) and “to decide any appeal from any final panel report as issued to the parties in [this] dispute.”
Following the agreement of the parties, the panel was composed on 24 August 2020.
On 31 March 2021, the Chair of the panel informed the DSB that, taking into account the working procedures and the timetable prepared in consultation with the parties, including the parties' requests for additional time to prepare submissions, as well as certain procedural and logistical challenges presented by the global COVID-19 pandemic the panel did not expect to issue its final report to the parties before the fourth quarter of 2021.
On 29 August 2022, the panel, having consulted with the parties, adopted Additional Working Procedures to facilitate arbitration under Article 25 of the DSU (“Additional Working Procedures”). On the same day, the panel issued its final report to the parties and informed them that the panel report would be circulated to Members, following translation, on 19 September 2022.
Subsequently, the panel received a communication from Colombia requesting the panel to suspend its work in accordance with Article 12.12 of the DSU in order to facilitate arbitration under the Agreed Arbitration Procedures. According to these procedures, Colombia's request constituted a joint request by both parties. On 16 September 2022, the panel granted the request effective the same day, and determined not to circulate its final report to Members unless it was subsequently requested to resume its work within the time-period specified in Article 12.12 of the DSU.
Arbitration under Article 25 of the DSU
On 6 October 2022, Colombia filed a notice of recourse to Article 25 under the Agreed Arbitration Procedures. This notice, which the parties refer to as a “Notice of Appeal”, was circulated to the DSB on 10 October 2022. It included the full text of the final panel report transmitted by the panel to the parties, third parties and the pool of arbitrators and, absent circulation by the panel to Members, thereby made the panel report public.
The following is a summary of the panel report as included in Colombia's Notice of Appeal:
The dispute concerns anti-dumping measures applied by Colombia on imports of potatoes, prepared or preserved (otherwise than by vinegar or acetic acid), frozen, classified under tariff subheading 2004.10.00.00 (“frozen fries”) originating in Belgium, Germany, and the Netherlands.
With respect to the initiation of the investigation, the Panel found that Colombia acted inconsistently with Article 5.3 of the Anti-Dumping Agreement because the Colombian investigating authority (MINCIT) failed to examine whether the use of third-country sales prices, instead of domestic sales prices, for determining “normal value” as part of the initiation was “appropriate” in the specific facts and circumstances of the underlying investigation. The Panel either rejected or declined to consider the remainder of the European Union's claims under Article 5.3 challenging MINCIT's decision to initiate the investigation.
As to the European Union's challenge against the confidential treatment of information by MINCIT, the Panel found that Colombia acted inconsistently with Article 6.5 of the Anti-Dumping Agreement by granting confidential treatment to certain information in the revised application. The Panel also found that Colombia acted inconsistently with Article 6.5.1 of the Anti-Dumping Agreement because, inter alia, it failed to “require” the applicant to furnish non-confidential summaries of certain information deemed to be confidential.
With respect to the European Union's claims concerning MINCIT's alleged use of “facts available” for calculating margins of dumping, the Panel found that Colombia acted inconsistently with its obligations under Article 6.8 of the Anti-Dumping Agreement because MINCIT disregarded the export prices that the investigated companies had provided in their questionnaire responses, without determining that the conditions under Article 6.8 to resort to “facts available” were satisfied. The Panel did not consider it necessary to address the European Union's other claims challenging the use of facts available under paragraphs 3 and 6 of Annex II and Article 2.1 of the Anti-Dumping Agreement.
The Panel also concluded that Colombia acted inconsistently with Article 2.4 of the Anti-Dumping Agreement because MINCIT improperly denied certain exporters' requests for adjustments in the dumping calculations.
As to claims focused on MINCIT's injury and causation determinations, the Panel found that Colombia acted inconsistently with Articles 3.1, 3.2, 3.4, and 3.5 of the Anti-Dumping Agreement, because MINCIT included in its injury and causation determinations imports from the exporters that were determined to have final de minimis margins of dumping and final negative margins of dumping. Given this, the Panel was not called upon to make further findings on the other grounds presented by the European Union in support of its claims challenging MINCIT's analysis of the “price effects” under Articles 3.2 and 3.1; the impact on the domestic industry under Articles 3.4 and 3.1; and the causal link under Articles 3.5 and 3.1.
On 12 October 2022, Members were informed of the Arbitrators selected for this dispute and the election of the Chair (WT/DS591/8).
On 15 November 2022, the hearing in this Arbitration was held. Pursuant to procedures adopted by the Arbitrators for partial public viewing of the hearing, opening statements were video recorded for parties and third parties that waived the confidentiality of their statements. This video recording may be accessed at the following link by logging in with your WTO username and password. To register for a user name (a myWTO account), click here.
The final award was issued to the parties in English on 19 December 2022. On 21 December 2022, in accordance with Article 25.3 of the DSU, the award in three working languages of the WTO was notified to the DSB, the Council for Trade in Goods, and the Committee on Anti-Dumping Practices and circulated to Members.
Colombia challenged four findings of inconsistency by the Panel. With respect to the initiation of investigation, the Arbitrators agreed with the Panel that Colombia's interpretation of the phrase “where appropriate” in Article 5.2(iii) was not “permissible” within the meaning of Article 17.6(ii), but considered that the Panel applied the legal standard in an overly stringent manner. The Arbitrators considered that an unbiased and objective authority could have found the use of third-country sales prices in the application at issue to be “sufficient” to initiate the investigation. The Arbitrators therefore reversed the Panel's finding and found that the European Union had not established that Colombia acted inconsistently with the obligation under Article 5.3 of the Anti-Dumping Agreement to determine the “sufficiency” of evidence to justify the initiation.
With respect to MINCIT's confidential treatment of information, the Arbitrators found that the information at issue was “provided on a confidential basis” by the applicant and “treated” by MINCIT as confidential. The Arbitrators therefore upheld the Panel's finding that, given the lack of a showing of “good cause” for the confidential treatment, MINCIT acted in a manner inconsistent with Article 6.5 of the Anti-Dumping Agreement.
With respect to exporters' requests for adjustment, the Arbitrators disagreed with Colombia that part of the European Union's “packaging cost-related claim” under Article 2.4 fell outside the Panel's terms of reference because it was not identified in the panel request. Rather, the Arbitrators considered that the allegation at issue concerned factual details that led to Colombia's failure to perform a fair comparison and need not be spelt out in the panel request. The Arbitrators therefore upheld the Panel's finding that the claim fell within its terms of reference.
With respect to MINCIT's injury and causation determinations, Colombia contended that the term “dumped imports” in Article 3 refers to any imports for which an authority calculates a positive dumping margin, including de minimis margins (i.e. less than 2 %). The Arbitrators considered that such an interpretation would render ineffective the requirement under Article 5.8 to immediately terminate an investigation where an authority determines a de minimis dumping margin, and was not supported by other arguments based on context and negotiating history. The Arbitrators concluded that Colombia's interpretation was not “permissible” within the meaning of Article 17.6(ii), and upheld the Panel's finding that Colombia acted inconsistently with Articles 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping Agreement.
Reasonable period of time
On 20 January 2023, Colombia informed the DSB that it intended to implement the arbitrators' award in a manner that respects its WTO obligations and that it would need a reasonable period of time to do so.
On 10 March 2023, Colombia and the European Union informed the DSB that, pursuant to Articles 21.3(b) and 25.4 of the DSU, they had agreed that the reasonable period of time for Colombia to implement the recommendations of the arbitrators' award would expire on 5 November 2023.
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