WT/DS162/R/Add.1 Page 111
"The 1916 Act means what its plain language says. In addition to its anti‑trust prohibitions, the Act has a protectionist component that prohibits conduct designed to injure the domestic steel industry".
But, in the view of the European Communities, even those Courts that claim that the 1916 Act is solely an anti‑trust statute acknowledge that establishing that dumping took place remains the first prerequisite to apply the 1916 Act. For instance, in the In re Japanese Electronic Products II case, which is described as "complex anti‑trust litigation", the Court of Appeals for the Third Circuit held that:
"[t]he 1916 Act makes it illegal to dump imported goods on the US market with the purpose of destroying or injuring US industry […]. The first element necessary to a finding of dumping under the 1916 Act is proof that a price differential exists between two comparable products, one of which is imported or sold in the US and the other of which is sold in the exporting country."368
The European Communities argues that the fact that the conduct targeted by a statute is defined by reference to discrimination between the price of the imported products and a benchmark which is (generally) the price of the product in the exporting country, is sufficient to determine that the statute is directed at dumping and is subject to the disciplines of Article VI of the GATT 1994. While the European Communities does not accept that applicability of Article VI of the GATT 1994 requires examination of the question whether the law protects competitors as distinct from competition, or whether the specific intent requirement relates to an intent to injure industry as opposed to an intent to injure competition, the language just quoted makes clear that US courts themselves have taken sharply different positions on these questions, and there is nothing to suggest that greater clarity will be brought in the foreseeable future.
Finally, the European Communities agrees with Japan that the United States' denial in the present proceeding that the 1916 Act is an instrument to counter dumping directly contradicts many official statements and positions of US executive branch officials, including officials of the current Administration.
(b) Violation of Article VI:2 of the GATT 1994
The European Communities submits that the WTO anti‑dumping rules, laid down in Article VI of the GATT 1994 and in the Anti‑Dumping Agreement, establish a comprehensive and complete multilateral regime to define and address the issue of dumping in international trade. This comprehensive character also pertains to the regulation of the measures that can be taken once injurious dumping within the meaning of Article VI of the GATT 1994 is found. In that case, "[i]n order to offset or prevent dumping, a contracting party may levy on any dumped product an anti‑dumping duty not greater in amount than the margin of dumping in respect of such product", as made clear already by Article VI:2 of the GATT 1994. This exclusive character cannot but be clearer if the several provisions included in Article VI are examined together. That Article inter alia assigns a specific function to anti‑dumping measures and repeatedly sets precise maximum quantitative limits to their permissible level. The function of anti‑dumping measures is to "offset" dumping (or "prevent" in the case of threat of material injury). This is then further emphasized in Article 9.1 of the Anti‑Dumping Agreement, where it is suggested to limit the duty to the amount necessary to offset the injury suffered by the domestic industry, which may be less than the full dumping margin.
368 In re Japanese Electronic Products II, Op. Cit., p. 322 and 324 (emphasis added by the European Communities); the European Communities also refers to, e.g., Zenith I, Op. Cit.; Wheeling-Pittsburgh, Op. Cit.; Geneva Steel, Op. Cit., pp. 1212-14.