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WT/DS162/R/Add.1 Page 121

is curing the WTO incompatibility of the 1916 Act.  On the first issue the United States relies in particular on the case EEC - Parts and Components.  However, that case concerned authorising provisions in respect of which there was discretion for the administration to take or not to take measures.  Whether these provisions produced any effects in practice depended on the discretion of an administration.  There is no such discretion for the administration in the case of the 1916 Act.


The European Communities contends that the reasons why the 1916 Act is mandatory legislation are manifold.  A first reason is that the 1916 Act is simply not applied by the US executive authorities. Its administration is conferred to the judiciary.  It is the courts, and only the courts that can take measures under the law at issue in the present dispute.  Additionally, the 1916 Act does not  "impose on the executive authority requirements", and in any event its requirements "cannot be modified by executive action".


According to the European Communities, courts by definition are charged with interpreting legislation, not with exercising discretion in respect of legislation.  Their mission is to tell what the law is and in doing so they are subjected to the law and to the law only.  Moreover, if it is true, as the United States submits, that the actual meaning of the 1916 Act depends on courts' interpretation of its provisions, it is even clearer that the government has no discretion at all to influence courts' decisions nor can it modify the 1916 Act's legal requirements.  In other words, even if courts could apply the 1916 Act consistently with WTO obligations, quod non, the US government can do nothing to force recalcitrant courts to do so when they do not.  This further confirms that the 1916 Act is "mandatory".


The European Communities further submits that a court does not have discretion to dismiss a wellfounded case under the 1916 Act.  This results from the language of the 1916 Act and applies to any claim brought under the 1916 Act.  The type of remedy which is requested has no bearing on this.  For example, in respect of criminal liability, the 1916 Act states:

"Any person who violates or combines or conspires with any other person to violate this section is guilty of a misdemeanour, and, on conviction thereof, shall be punished by a fine not exceeding $5,000, or imprisonment not exceeding one year, or both, in the discretion of the court."390

The European Communities considers therefore that it is mandatory for courts to take action against dumping under the 1916 Act once a case has been properly established.


The European Communities notes that, likewise, in respect of civil liability, the 1916 Act states:

"Any person injured in his business or property by reason of any violation of, or combination or conspiracy to violate, this section, may sue therefor in the district court of the United States for the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages sustained, and the cost of the suit, including a reasonable attorney's fee."391

For the European Communities, therefore, a court does not have discretion not to award treble damages that had been properly established.


The European Communities considers that, as a result, both the civil and criminal provisions of the 1916 Act create legal effects and in neither case does this depend on the administration taking

390 Emphasis added by the European Communities.

391 Emphasis added by the European Communities.

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