DS: European Union — Anti-Dumping Measures on Imports of Fatty Acid from Indonesia

This dispute concerns Indonesia's complaint against the anti-dumping measures applied by the European Union on imports of fatty acid from Indonesia following an anti-dumping investigation conducted by the European Commission and an allegedly unwritten measure that the European Commission is claimed to have used in calculating dumping margins.

Claims related to withdrawal of the written application

With respect to Indonesia's claim challenging the European Commission's continuation of the anti-dumping investigation despite the withdrawal of the written application without first making a separate determination that the conditions in Article 5.6 of the Anti-Dumping Agreement were met, the Panel found that the European Commission did not act inconsistently with Article 5.6 because this Article applies only to the initiation of an investigation and does not set out rules of application in the course of the investigation.

Regarding Indonesia's claims of non-uniform and unreasonable administration of Article 9(1) of the EU Basic Anti-Dumping Regulation and Article 14(1) of the EU Basic Anti-Subsidy Regulation following the European Commission's continuation of the anti-dumping investigation while terminating an allegedly parallel countervailing duty investigation, the Panel found that the European Commission did not act inconsistently with Article X:3(a) of the GATT 1994.

Claims related to dumping margin calculations

Concerning Indonesia's claims challenging the European Commission's decision to rely on profits, and selling, administrative and general (SG&A) expenses for certain models of the product under investigation which were derived from domestic sales of those models that were made in low volumes, the Panel found that the European Commission did not act inconsistently with Articles 2.2, 2.2.2, 9.2 and 9.3 of the Anti-Dumping Agreement or Articles X:3(a) and VI:2 of the GATT 1994.

With respect to Indonesia's claims challenging an error made by the European Commission resulting from a failure to correctly convert the currency of certain transactions, the Panel found that the European Commission's error was inconsistent with Article 2.4.1 of the Anti-Dumping Agreement. Based on this finding, the Panel also found that the European Commission acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.

Claims related to the unwritten measure

Regarding Indonesia's claims challenging an allegedly unwritten measure that the European Commission is asserted to have used in calculating dumping margins, the Panel found that the European Commission did not act inconsistently with Articles 2.2.2 and 2.2 of the Anti-Dumping Agreement and Article X:3(a) of the GATT 1994 because Indonesia had not established that any such unwritten measure existed.

Claims related to injury determination

With respect to Indonesia's claims challenging the European Commission's evaluation of the state of the domestic industry based on various factors set out in the Anti-Dumping Agreement, the Panel found that the European Commission did not act inconsistently with Articles 3.1 and 3.4 of the Anti-Dumping Agreement.

Other claims

Regarding Indonesia's claims under Article 1 of the Anti-Dumping Agreement and Article VI of the GATT 1994 as a consequence of the alleged substantive violations under these Agreements, having found the substantive inconsistencies with Articles 2.4.1 and 9.3 of the Anti-Dumping Agreement, the Panel upheld Indonesia's claim under Article 1 of the Anti-Dumping Agreement. However, the Panel rejected the consequential claim under Article VI of the GATT 1994.