   
  
WT/DS577/3  
 
17 May 2019  
(19-3436) Page: 1/2 
  Original: English  
 
UNITED STATES – ANTI -DUMPING AND COUNTER VAILING DUTIES ON  
RIPE OLIVES FROM SPAIN  
REQUEST FOR THE ESTA BLISHMENT OF A PANEL  BY THE EUROPEAN UNI ON 
The following communication, dated  16 May 2019 , from the delegation of the European Union  to 
the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.  
_______________  
 
 
On 28 January 2019 the European Union (EU) requested consultations with the United States (US) 
pursuant to Articles 1 and 4 of the Under standing on Rules and Procedures Governing the Settlement 
of Disputes (DSU) , Article 30 of the Agreement on Subsidies and Countervailing Measures 
(SCM  Agreement), Article 17 of the Agreement on Implementation of Article VI of the General 
Agreement on Tariffs and Trade 1994 (Anti -dumping Agreement) and Article XXIII of the General 
Agreement on Tariffs and Trade 1994 (GATT 1994) concerning the imposition o f countervailing (CVD) 
and anti -dumping (AD) duties on ripe olives from Spain.1 
The consultations took place in Geneva on 20 March 2019 and failed to resolve the dispute. Hence 
the EU is requesting the establishment of a panel pursuant to Article 4.7 of th e DSU.  
The measures at issue are the CVD and AD duties on ripe olives from Spain, as well as the 
US administrative acts and legislation that were the basis for the imposition of these duties. These 
measures include and are evidenced by the following instr uments / documents:  
• CVD and AD duty orders issued on 1 August 2018 by the US Department of Commerce 
(DOC) and applicable as from the same date,2 following final determinations by the DOC3 
and by the US International Trade Commission (ITC);4 and 
• Section 77 1B of the Tariff Act of 1930.5 
The EU is concerned that these measures appear to be inconsistent with:  
• Articles 19.1, 19.3, 19.4, 1.2, 2.1, 2.1(a), (b) and (c), 2.2 and 2.4 of the SCM Agreement, 
because the US is countervailing subsidy programmes and subsi dies that are not specific, 
including but not limited to Pillar I payments under the EU Common Agricultural Policy. These 
subsidy measures do not explicitly limit access to certain enterprises. They operate on the 
basis of objective criteria or conditions that are automatic and strictly adhered to, as well as 
being clearly spelled out in official documents. There are no reasons to believe that these 
subsidy measures are in fact specific, such as through the use of a programme by a limited 
                                                
1 WT/DS577/1  
2 Ripe Olives from Spain: Amended Final Affirmative Countervailing Duty Determination and 
Countervailing Duty Order, 83 FR 37469, 1 August 2018; and Ripe Olives from Spain: Antidumping Duty Order, 
83 FR 37467, 1 August 2018  
3 Ripe Olives from Spain: Final Affirmative Countervailing Duty Determination, C -469-818, DOC, 11 June 
2018, published in 83 FR 28186, 18 June 2018; and Ri pe Olives from Spain: Final Affirmative Determination of 
Sales at Less Than Fair Value, A -469-817, DOC, 1 1 June 2018, published in 83 FR  28193, 18 June 2018  
4 Ripe Olives from Spain, Investigation Nos 701 -TA-582 and 731 -TA-1377 (Final), US ITC, July 2018 
5 19 U.S.C. § 1677-2 WT/DS577/3  
 
- 2 - 
 
  number of certain enterprises, predominant use by certain enterprises, the granting of 
disproportionately large amounts to certain enterprises, or the manner in which discretion 
has been exercised. The determinations also do not contain findings of de facto specificity. 
In any event, no account or proper account has been taken of the extent of diversification 
of economic activities within the jurisdiction of the granting authority or the length of time 
during which the programmes have been in operation. The subsidy measures are not limited 
to certain enterprises located within a designated geographical region within the jurisdiction 
of the granting authority. The determinations of specificity are not clearly substantiated on 
the basis of positive evidence. The US is therefore  imposing countervailing duties on the 
import of ripe olives that are not in accordance with the above provisions and that are 
inappropriate and in excess of the amount of any subsidy;  
• Articles 1.1(b), 10, 14, 19.1, 19.3, 19.4 and 32.1 of the SCM Agreemen t and Article VI:3 of 
the GATT 1994, because, with respect to these subsidy measures, the DOC did not carry out 
a pass -through analysis to assess to what extent subsidies to olive growers, the direct 
recipients of the benefit conferred by the subsidy progr ammes and the subsidies, pass -
through to the processors of ripe olives. The US is therefore imposing countervailing duties 
on the import of ripe olives that are not in accordance with the above provisions and that 
are inappropriate and in excess of the amo unt of any subsidy found to exist with respect to 
ripe olives.  In addition, Section 771B of the Tariff Act of 1930, which mandates this 
approach, appears to be as such inconsistent with the same provisions;  
• Article VI:3 of the GATT 1994, and Articles 15. 1, 15.2 and 15.5 of the SCM Agreement, as 
a consequence of one or both of the preceding points and because, in any event, the ITC did 
not properly factor into the determination of injury the evolution in the volume of subsidized 
imports, or the effect of t he subsidised imports on prices, and did not demonstrate the 
required causal relationship between subsidized imports and injury to the domestic industry, 
also taking into account non -attribution factors. The injury determination is not based on 
positive ev idence and does not involve an objective examination of the volume of the 
subsidized imports and their effects on prices, and the consequent impact on the domestic 
producers. Moreover, in the absence of relevant information, which was redacted from the 
report of the ITC, the US did not disclose all relevant information as required under Article 
22.5 of the SCM Agreement, including during the consultations. For the same reasons, the 
dumping measures appear to be inconsistent with Articles VI:1 and VI:2 of th e GATT 1994, 
and Articles 3.1, 3.2 and 3.5, and Article 12.2.2 of the Anti -Dumping Agreement; and  
• Article VI:3 of the GATT 1994, and Articles 1.1(a), 1.1(b), 10, 14, 19.1, 19.3, 19.4 and 32.1 
of the SCM Agreement and Article VI:3 of the GATT 1994, because  the calculation of the 
final subsidy rate for Aceitunas Guadalquivir was erroneously based on the company’s total 
amount of purchases of raw olives, regardless of the processed olive product for which the 
raw olives were used. This means that the determin ations regarding the amount of financial 
contribution and benefit, "pass -through", and the amount of the countervailing duties 
imposed are erroneous, inappropriate and excessive. Furthermore, the interested party was 
not given notice of the information req uired or ample opportunity to present evidence 
considered relevant, as required by Article 12.1; the authorities did not properly satisfy 
themselves as to the accuracy of the relevant information, as required by Article 12.5; and 
the authorities failed to inform all interested parties of the essential facts, as required by 
Article 12.8. In addition, the "all others" rate determined by the authorities is inconsistent 
with the same provisions for the same reasons.  
In light of the above, it appears that the US  by imposing CVD and AD duties on ripe olives from 
Spain has failed to carry out its obligations, and has nullified or impaired benefits accruing to the EU 
directly or indirectly under the cited agreements.  
This panel request relates to the measures at iss ue and to any amendments, supplements, 
extensions, replacement measures, renewal measures and implementing measures.  
__________  