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WT/DS162/R/Add.1 Page 109

specific action against dumping of exports from another Member can be taken except in accordance with the provisions of GATT 1994 as interpreted by this Agreement") confirms that action can be taken against the import of dumped products from another GATT 1994 Member only if  the dumping causes or threatens material injury, and that no other measures can be taken than those provided for by Article VI of the GATT 1994 and the AntiDumping Agreement.


The European Communities notes that the purpose of Article VI and the AntiDumping Agreement would be thwarted if parties were allowed to apply measures other than antidumping duties – for example, civil liability for damages or criminal penalties – to deal with the problem for which Article VI establishes antidumping duties as the sole remedy.  Likewise it would be thwarted if the Members could justify the application of such other measures on the basis that the conduct to which they are applied is defined in a manner which, while incorporating the essential elements of the definition of dumping, differs by the addition of one or another additional condition – for example, providing that the additional remedy is available in case of aggravated or "predatory" dumping.  This is exactly what the 1916 Act does.  Of course it was not enacted in order to circumvent the discipline of Article VI of the GATT 1994, which was only adopted three decades later.  But to accept that the 1916 Act is compatible with Article VI of the GATT 1994 would entail accepting that Article VI can be circumvented by national legislation simply by resorting to the expedient of "bolting on" a few additional definitional elements or providing a remedy other than antidumping duties.


Separately, the European Communities notes that the GATT 1994 contains rules on antidumping (Article VI) and that these rules establish the sole system of remedies authorized by the GATT for dealing with the problem of dumping.  By contrast, the GATT 1994 does not contain any specific discipline on antitrust matters.  The question posed by the 1916 Act is therefore: is the 1916 Act of such a nature as to be subject to the rules of Article VI and the AntiDumping Agreement?


The European Communities considers that this question is to be answered by the Panel by reference to the principles of GATT 1994 and WTO law.  It is not to be determined on the basis of national legislation or case law of any particular Member.  The Panel cannot be bound by the views of national courts of WTO Members on this question.  Words like "antitrust", "unfair competition", and "predatory" may have different meanings in different Member States.  They may be used in different ways at different times.  Allowing their use to determine the scope of application of the discipline of Article VI would effectively invite Members themselves to choose to withdraw their legislation from WTO disciplines simply by choosing the right label.  On the other hand, judgments of national courts are relevant insofar as they offer guidance on the meaning or interpretation of national laws as distinct from the legal categorisation for WTO purposes, and it is appropriate for the Panel to take them into account for that purpose.


Thus, according to the European Communities, it is Article VI itself which gives the answer as to whether the 1916 Act is subject to its provisions or not.  It provides a definition of dumping "by which products of one country are introduced into the commerce of another country at less than the normal value of the products".  A first essential feature of the definition is that it refers to rules relating exclusively to imports.  The definition is based on the concept of price discrimination in the form of higher prices on the market of the exporting country than on the market of the importing country.366  This analysis yields the definition of the kinds of rules which are antidumping rules subject to the discipline of Article VI of the GATT 1994:


The rules are targeted at imports and by the fact of their importation.

366 The European Communities points out, in this connection, notably in light of the US argument that Japan's and the European Communities' claim under Article VI would entail bringing all regulation of international price discrimination under Article VI, that dumping as defined in Article VI constitutes only a subcategory of international price discrimination.  

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