European Union - Anti-Dumping Measures on Biodiesel from Argentina (WT/DS473): Report of the Appellate Body

INTRODUCTION The European Union and Argentina each appeals certain issues of law and legal interpretations developed in the Panel Report, European Union – Anti- Dumping Measures on Biodiesel from Argentina (Panel Report). The Panel was established on 25 April 2014 to consider a complaint by Argentina with respect to two measures of the European Union: (i) the anti-dumping measure imposed by the European Union on imports of biodiesel originating in Argentina; and (ii) the second subparagraph of Article 2(5) 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 Regulation). The anti-dumping measure on biodiesel challenged by Argentina was adopted upon conclusion of an investigation on imports of biodiesel originating in Argentina and Indonesia. The European Commission initiated the investigation on 29 August 2012, following a complaint submitted by the European Biodiesel Board (EBB). Provisional anti-dumping duties were imposed on 29 May 2013 through the Provisional Regulation, and definitive anti-dumping duties on 27 November 2013 through the Definitive Regulation. With regard to the Argentine producers/exporters, the rates of the provisional anti-dumping duties applied were equal to the dumping margins ranging from 6.8% to 10.6%. In the Definitive Regulation, the EU authorities confirmed the provisional findings of dumping and injury, and calculated dumping margins ranging from 41.9% to 49.2%. As these dumping margins exceeded the injury margins calculated by the EU authorities, which ranged from 22% to 25.7%, the EU authorities applied duties corresponding to the injury margins. Argentina claimed before the Panel that the anti-dumping measure on biodiesel is inconsistent with several provisions of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement) and the General Agreement on Tariffs and Trade 1994 (GATT 1994) relating to the dumping margin determination, the injury and causation determinations, and the imposition of duties. Specifically, Argentina alleged that the European Union acted inconsistently with: (i) 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 records kept by the Argentine producers, and by including costs not associated with the production and sale of biodiesel in the calculation of the cost of production;