WT/DS162/R/Add.1 Page 114
and 14 which correspond to what is now Article XVIII of the GATT 1994.371 Moreover, even if it could be argued that the Charter negotiators intended to preserve a wider range of possible measures, those who negotiated the 1948 amendments to the GATT 1947 clearly did not, since they explicitly refer to "other provisions of the General Agreement". The GATT 1947 negotiators were prepared to refer to the Havana Charter where that was their intention, as is apparent, for instance, from the Note ad Article II:4 of the GATT 1947.
In conclusion, for the European Communities, the fact that this footnote was considered necessary merely confirms that alternative action against dumping such as treble damages, fines and imprisonment is not compatible with WTO rules.
2. Violation of Article III:4 GATT 1994
(a) The Robinson-Patman Act as an equivalent measure applying to US goods
The European Communities considers that to the extent that the 1916 Act is not inconsistent with Article VI of the GATT 1994 and the Anti‑Dumping Agreement, the 1916 Act infringes Article III:4 of the GATT 1994 since it accords to products of WTO Members imported into the United States treatment less favourable that that accorded to like products of US origin.
The European Communities notes that there is no dispute about the fact that the 1916 Act is a "law" within the meaning of Article III:4 "affecting the internal sale of products" because it prohibits, inter alia, the sale or offering for sale of products below a certain price. Also, although the 1916 Act nominally applies to importers, this does not prevent the applicability of Article III:4.372 Furthermore, the circumstances under which a product is imported do not affect the characterization of domestic and imported products as "like".
As regards the "less favourable treatment" accorded by the United States to imported products, the European Communities submits that the very fact that the 1916 Act applies exclusively to imported products already establishes a prima facie breach of Article III:4, since domestic products are not subject to the requirements of the Act. Therefore, the European Communities agrees with Japan that the 1916 Act violates Article III:4 by establishing a separate and additional legal regime for imports and subjecting imports to separate legal requirements not applicable to domestic goods.
The European Communities notes that the United States seeks to defend the 1916 Act by claiming that domestic products are subject to a comparable legislation regulating price discrimination on the US market and therefore imported products are not treated "less favourably". In this respect the United States refers to the Robinson-Patman Act. However, the United States has failed to show that this Act prevents less favourable treatment of imported products.
In this regard, the European Communities argues, first of all, that imported products are also subject to the Robinson-Patman Act in the same way as domestic products. This Act, like any legitimate competition or anti‑trust measure, does not distinguish between imported and domestic products. It is true that the Robinson-Patman Act only applies to price discrimination committed in the United States and that in the 1916 Act may be considered to complement it in that it applies to dumping, which is a price discrimination practised between the domestic market of the producer and an export market. It is not however possible to say that the 1916 Act and the Robinson-Patman Act are complementary in a manner which could possibly avoid a violation of Article III:4 of the GATT
371 The European Communities refers to document E.CONF.2/C.3/C/18, paras. 3(iv) and 6.
372 The European Communities refers to the Panel Report on United States – Section 337, Op. Cit., para. 5.10 in particular.