RESTRICTEDWORLD TRADE
ORGANIZATIONG/SCM/W/495
22 February 2002
(02-0922)
Committee on Subsidies
and Countervailing MeasuresOriginal:  English
IMPLEMENTATION-RELATED ISSUES REFERRED TO THE
COMMITTEE BY MINISTERS
Review by the SCM Committee of the Provisions of the Agreement on Subsidies
and Countervailing Measures Regarding Countervailing Duty Investigations
Communication from the European Community
The following communication, dated 22 February 2002, has been received from the
Permanent Delegation of the European Commission.
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As discussed during the informal meeting of the Committee on 16 December 2001, the
European Communities submit the following questions concerning certain issues contained in the
submissions made by Brazil (G/SCM/W/464) and India (G/SCM/W/462).  The European
Communities recall that these questions are posed only for reasons of clarification and do not
prejudice their position on the substance of the submissions.
Topic 2:  Facts available
• Introduce provisions of "facts available" such as those in Annex II of the AD Agreement (Brazil)
• Clarify that all verifiable and timely submitted information should be taken into account, and that
if a portion of information is not verifiable or timely submitted, facts available may be used forthat portion of the information (India)
Question by the EC:
1. Can Brazil and India please clarify whether such changes would have any bearing on
the guidelines for investigating authorities under Annexes II and III of the ASCM, in particular
concerning those provisions which shift the bur den of proof on to the government of the
exporting country (e.g. Annex II, section II paragraph 2 ASCM)?.
Topic 4: Review Procedures
• Introduce provision for assessment of degree of support for review requests (Brazil)
Questions by the EC:
2. Does Brazil consider that for expiry rev iews, even though Article 21.3 ASCM already
requires a petition "by or on behalf of the domestic industry", the representativenessG/SCM/W/495
Page 2
requirement need not be observed since Article 21 does not explicitly refer to Article 11.4
ASCM which contains a definition of  "by or on behalf of the domestic industry"?
3. Concerning interim reviews under 21.2 ASCM any interested party can make a request.
How would Brazil reply to the argument that a requirement for standing only for domesticproducers but not for exporters or importers would be discriminatory?
• Introduce detail in Article 19.3 concerning expedited review of new exporters (Brazil)
Question by the EC:
4. Can Brazil please explain in what way the provisions of Article 19.3 ASCM should be
"detailed"?
• Review need for continued imposition of measure upon submission of positive information
concerning procedural mistake or manifest error of appreciation by authorities (India)
Questions by the EC:
5. Article 23 ASCM already provides for judicial review where redress can be found in the
circumstances cited by India.  Please explain why there is a need for an additional remedy
under the ASCM.
6. Can India please explain why it would be desirable to allow for requests for review of
procedural mistakes to be addressed to the same institution which allegedly has made this
mistake?
• Clarify Article 21.2 to provide for automatic adjustment of countervailing duties for schemes
withdrawn (India)
Questions by the EC:
7. Would such an automatic adjustment be  required only if th ere was a change in
circumstances resulting in a permanent change of the circumstances regarding subsidization?
8. Can India please indicate whether the automatic adjustment would also be required if
the exporter benefited not from the original scheme but from a scheme which was not
investigated in the original investigation?
9. Would such an automatic adjustment also  cover situations where schemes are added
and subsidization increases?
10. Can India please explain why review  procedures under Article 21.2 would not
sufficiently address this issue?
Topic 5:  Definition of domestic industry and injury analysis
• Clarify "major proportion of the total domestic production", and clarify whether defining
domestic industry as those who supported the petition cannot be construed as impermissibleinterpretation of the major proportion requirement (India)
• 
 Question by the EC:G/SCM/W/495
Page 3
10. Can India please indicate in which instances the major proportion requirement was
considered to be fulfilled only by reference to support of the petition regardless of whether the
major proportion test was in fact met?
• In determining likeness of products, account should be taken of differentiated nature of product
even where they have closely resembling characteristics, inter alia through consideration of pricecomparison, substitutability and whether in direct competition (India)
Question by the EC:
11. Does India consider that issues of price,  substitutability and competitive relationship
must be addressed in establishing whether products have "closely resembling characteristics"?Or would such issues have to be addressed as conditions in addition to the requirements already
set out in footnote 46 of the ASCM for establishing "likeness" of products?
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