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in the United States is "substantially" below the sales price applied in the domestic market but is not below costs. In such a situation, the 1916 Act could apply, whereas in the comparable situation involving domestic products, the Robinson-Patman Act could not.
Finally, the European Communities contests the importance given by the United States to the Helmac II case, essentially because the same Court, in the same case, a few months earlier, explicitly held that the other element of anti‑trust predation – reasonable prospect of recoupment of losses from sales below cost – did not have to be proved in claims under the 1916 Act.382
The European Communities submits that another reason why dumping is easier to establish under the 1916 Act than under the Robinson-Patman Act is that under the former a simple offer to sell foreign goods is sufficient to entitle a request for treble damages, while cases against price discrimination under the Robinson-Patman Act require actual sales. As observed in the Helmac I case:
"It is obvious that a sale must take place to state a Robinson-Patman Act claim. It is a requirement born from the type of conduct that is being prohibited by the statute, one supplier giving a competitive edge to one competitor by charging a lower price. There is no way the favoured purchaser could gain the competitive advantage until that sale from the supplier to the favoured purchaser takes place. Without the sale the favoured purchaser has received no cost benefit, and no competitive advantage. This explains the sales requirement of a claim under Robinson-Patman [sic] claim."383
The European Communities considers that for the reasons set out above, by maintaining the 1916 Act in effect, the United States accords "less favourable treatment" to foreign products than to its own domestic products.
3. The distinction between discretionary and mandatory legislation and its relevance to the present case
(a) Claims against domestic legislation as such
The European Communities takes issue with the US contention that in order to challenge a Member's legislation as such as WTO-inconsistent there would be a general requirement to show that legislation is mandatory. This is refuted by the text of WTO provisions as well as by GATT 1947 and WTO practice. Both elements have now made abundantly clear that legislation can be declared per se inconsistent with WTO provisions, and the European Communities submits that this in particular applies to the WTO obligations at issue in the instant dispute. For example, several panel reports under GATT 1947 have found domestic legislation to run afoul of Article III of the GATT 1947 even before it had actually been applied, and therefore before any actual discrimination had taken place.384 Additionally, that domestic measures may be challenged as such has also been confirmed by WTO practice.
382 The European Communities refers to Helmac I, Op. Cit.
383 Helmac I, Op. Cit., p. 15.
384 The European Communities refers to, for example, the Panel Reports on United States – Superfund, Op. Cit., para. 5.2.2, where the legislation imposing the tax discrimination only had to be applied by the tax authorities at the end of the year after the panel examined the matter, and United States – Measures Affecting Alcoholic and Malt Beverages, adopted on 19 June 1992, BISD 39S/206, paras. 5.39, 5.57, 5.60 and 5.66, where the legislation imposing the discrimination was, for example, not being enforced by the authorities. The European Communities also refers to Panel Reports on EEC – Parts and Components, Op. Cit., paras. 5.25‑5.26, and Thailand – Cigarettes, Op. Cit., para. 84, and United States – Tobacco, Op. Cit., para. 118.