SAFEGUARD INVESTIGATION ON IMPORTS OF MOBILE PHONES

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1 SAFEGUARD INVESTIGATION ON IMPORTS OF MOBILE PHONES Post-hearing comments ZTE Corporation 17 th March, 2015

2 Content Part I Substantial and Procedural Deficiencies of the Investigation The Scope of the Investigation is Excessive The Base Year and Investigation Period is Unclear The Producer s Position of the Applicant and Supporters is Not Met The Acceptance of Supporters for Application is Arguable The Existing of the Local Industry is Challengeable... 7 Part II Examination of Legal Requirements Increase of Imports Unforeseen Development Serious Injury or Threat of Serious Injury Causal Link Public Interest Part III Necessity Arguments...22 Part IV The Standpoint of the Applicant...23 Part V Conclusion

3 This is the post hearing submission filed by ZTE Corporation ( ZTE ) in the safeguard investigation ( the Investigation ) initiated by the Turkish Ministry of Economy ( the Authority ) concerning imports of mobile phones, classified as transmission apparatus incorporating reception apparatus (cellular) portable telephone under Turkish Customs Tariff Statistical Positions , ( mobile phones or the product concerned or the product subject to investigation ) through Communiqué regarding Safeguard Measures on Imports (Communiqué no 2014/10) ( Initiation Communiqué ) published in the Turkish Official Gazette no dated 5 th of December, With the attitude of fully cooperation with the Authority, ZTE has registered as an interested party and completed the online questionnaire. While looking into the current investigation, ZTE believes that, the preconditions for initiating safeguard measures Investigation are not satisfied and the investigation should be terminated due to both substantial and procedural deficiencies; even if the argument regarding the deficiencies failed and the Investigation proceeded, the decision on the Investigation should be imposition of no measure; even if the Authority should consider ending up the Investigation with imposition of measure(s), such decision should be supported by solid evidence and restrained to the extent of necessity. Part I Substantial and Procedural Deficiencies of the Investigation 1. The Scope of the Investigation is Excessive In the present case, the investigation has been initiated with respect to all types of mobile phones. Actually, the Initiation Communiqué and the Non-Confidential Summary of the Application ( the Application ) refer to the product subject to the investigation as mobile phones. The description of mobile phones in application stated that easily portable communication and multimedia device, which uses wireless telephone system with wide coverage area, with technical specification described as device enabling usage of voice call, video talk, video message, SMS, music player, video games, internet, data transfer and all computer functions implementations like office applications. The product concerned is classified under Turkish Customs Code and is referred as mobile phones. In this point, it is important to note that by definition based on essential characteristics, mobile phones are divided into two main groups: smart phones and feature phones. The 2

4 functions described in the Application, can only be carried out by smart phones, and feature phones with 3G technology. And the delimitation between smart phones and feature phones is clear-cut. Nevertheless, taking into consideration Vestel s production activities in fact, it is clear that the Vestel Elektronik Sanayi Ve Ticaret A.Ş. ( Vestel or the Applicant ) only manufactures and only intends to smart phones. In light of injury or threat of injury, the scope of the investigation applied by Vestel should be within smart phone, other than expanded to all types of mobile phones. The fact that the product claimed by the applicant under the investigation is only the smart phone can be easily read between the lines of the Application. Indeed, in paragraph 10 of the section 1.1 titled the Applicant, it is stated that Vestel started production of Venus Smart Phones in August Additionally, sections 1.2 and 1.3 titled Definition and Usage Area of the Product Subject to Application and Design and Production Process of the Product Subject to Application respectively provides information how the Applicant started the production of smart phones and how the design and process of smart phones are and the like. Furthermore, the Applicant contrasted two models of its products namely Vestel Venus 5'' X and Vestel Venus 5.5'' X with some of the imported mobile phones with respect to technical specifications to demonstrate the representative technical specification of subject product. Both of the products described in the Application are smart phones. In conclusion, the scope of the Investigation is excessive of what Applicant is supposed to allege and what alleged injury or threat of injury may incur. The Authority should have analyzed and determined whether or not feature phones are like or directly competitive products. In terms of the scope, the Authority should do more than complying with the Applicant s application, but also consider the interested parties argumentation. 2. The Base Year and Investigation Period is Unclear To date, the only injury data that the interested parties have access to is the data provided in the Application. This data is highly deficient in specificity, scope and time period covered. The following data and explanation thereof, which are indispensable in analyzing whether the pre-conditions for the imposition of safeguard measures, set out in Article XIX: 1(a) of GATT 1994 and the Safeguards Agreement, Articles 5 and 6 of the Decree no. 2004/7305 on Safeguard for Imports ( Decree ) and Articles 1, 7, 9 and 10 of the Regulation on Safeguards Measures for Imports ( Regulation ) are met, are, however, absent in the Application: 3

5 a) Full injury data of Turkish Statistical Institute (TUIK) regarding smart phones only. Since it is clear that the Applicant Vestel only manufactures smart phones after 2011(so does other domestic manufacturers such as Telpa Telekomünikasyon Ticaret A.Ş.( Telpa)), which makes the usage of data in respect of all types of mobile phones obviously unreasonable. The contemplated investigation requires the import data of smart phones. b) A so-called reference period or investigation period, that is, a time span prior to the investigation during which import trends should be studied, should be indicated clearly. As for the reference period of investigation, it is possible to refer to the decision of the Panel in Argentina Footwear which observed that the selection of the base year has a crucial influence on the compared overview of results in increase or decrease of imports. Thus, the determination of the base year is a requisite condition for the sake of the present investigation. c) Clear explanation of how injury factors, set out in the indexed fashion in the table under section 3 of the Application were calculated. This data is not clear and pursuant to Article 6 of the Regulation, the non-confidential summaries should be sufficient in detail to permit a reasonable understanding of the substance of information submitted. However, we think such condition is not satisfied. d) Clear explanation of why data in Table under section 3 of the Application is indexed, instead of being revealed in full. Pursuant to Article 3.2. of the Safeguards Agreement, it is that confidential data that may be withheld from interested parties and under Article 6 of the Regulation, confidential data is data the disclosure of which would be cause of unfair competition and earnings or would have a significant adverse effect upon a person supplying the information or upon a person from whom he/she has acquired it. However, we think such condition is not satisfied or explained. e) Full data on prices and stocks: The Authority should consider all relevant data that can have bearing on the state of the mobile phone industry, not only the factors specifically listed in Article 4.2(a) of Safeguards Agreement, but all relevant factors, including factors not listed, but relevant other factors as confirmed in the US Wheat Gluten (AB) ( ) authorities charged with the conducting an inquiry or a study to use the treaty language, an investigation must actively seek out pertinent information. ( ) If the competent authorities consider that a particular other factor may be relevant to the situation of the domestic industry, under Article 4.2.(a), their duties of investigation and evaluation preclude them from remaining passive in the face of possible short-comings in the evidence submitted, and views expressed, by the interested parties. In such cases, where the competent authorities do not have sufficient information before them to evaluate the possible relevance of such an other factor, they must investigate that other factor, so that they can fulfill their obligations of evaluation under Article 4.2.(a). ( ) Therefore, the competent 4

6 authorities must undertake additional investigative steps, when the circumstances so require, in order to fulfill their obligation to evaluate all relevant factors. In brief, the Applicant s application provides only limited and insufficient and perhaps misleading information which impedes the right of defense of interested parties. Furthermore, neither the Initiation Communiqué nor the Application lays down sufficient evidence or indicates a period of reference for the investigation at all. In conclusion, ZTE respectfully invites the Authority to clarify the reference year of the investigation, to collect and release the absent injury data regarding smart phones to interested parties and to explain the methodology for indexed injury data. Under the current conditions of the investigation, it is more than clear that the interested parties are not able to adequately utilize their rights of defense. 3. The Producer s Position of the Applicant and Supporters is Not Met ZTE would like to draw the Authority s attention to the concept of producer in current Investigation. Producers who cannot manufacture domestic products from the perspective of rules of origin may not be legitimately expected to constitute domestic producers for the purposes of applying trade remedy rules such as safeguard measures. This would create a violation to both the World Trade Organization s Agreement on Rules of Origin and the legitimate expectations arising from the membership of the Organization. Non-preferential rule of origin concerning mobile phones is laid down by Article 19 of the Customs Law no of Turkey. This rule has three components: (i) last substantial economically justified processing or working, (ii) in an undertaking equipped for that purpose, (iii) resulting in the manufacture of a new product or representing an important stage of manufacture. There are no specific rules with respect to such last substantial processing or working in the Turkish legislation. The only applicable rule is laid down by Annex K of the Revised Kyoto Protocol. According to the Protocol, such transformation should not be a simple assembly operation. ZTE would like to remind the Authority that, during the public hearing, it had been showed that, the mobile phones that produced by Telpa (affiliated with General Mobile) are actually labeled Made in China. Furthermore, to our limited knowledge, we would doubt that the Applicant is just conducting simple assembly which should not be regarded as last substantial transformation. 5

7 The Authority should conduct appropriate investigation to find and clearly announce to the public, what kind of mobile phone can be regarded as made in Turkey, what the legal requirements to be a Turkish producer are, and whether the Applicant satisfies the legal requirements and constitute a qualified domestic producer. 4. The Acceptance of Supporters for Application is Arguable Article 3 of the Safeguards Agreement stipulates that: A Member may apply a safeguard measure only following an investigation by the competent authorities of that Member pursuant to procedures previously established and made public in consonance with Article X of GATT In Turkey, the rules and principles regarding the procedures of a safeguard investigation is provided in the Decree and the Regulation s provisions. Actually, the Regulation states that an investigation must be initiated either on an ex officio basis or upon a written application by natural or legal persons concerned or the Professional Organizations or Chambers with which they are affiliated. So, there is no provision regarding supporters in safeguards investigations initiated in Turkey. The notion of supporters exists only in the context of antidumping investigations as stipulated in WTO s Anti-Dumping Agreement and Turkey s legal framework regarding the prevention of unfair competition in imports. As for the current Investigation, the Applicant provides a combined data regarding the economic indicators of the so-called domestic producers in order to show the serious injury occurred in the domestic industry. The fact that the Applicant uses a data compilation with other market players of the domestic industry constitutes a serious problem with regards to the procedurality and the evaluation of the serious injury of the domestic industry. Indeed, according to the exact wording of the section 1.1. of the Application, Telpa Telekomünikasyon Ticaret A.Ş., NCB Telekomünikasyon İletişim San. Tic. Ltd. Şti., Ova Elektronik İletişim San. ve Tic. A.Ş. and Erkaysan Telekomünikasyon Elektronik Otomotiv Tekstil İnşaat Yapı Malzemeleri San. ve Tic. Ltd. Şti are the other domestic producers that supported the application with their economic indicators. According to the above extract of the Application, it is possible to deduct that the economic indicators provided in the section 3 of the Application have been prepared with data compiled by the abovementioned domestic producers. As a result: a) Such data compilation is unlawful and illegal. The sensitive nature of data shared by the Applicant and the so-called supporters are against the provisions of the Turkish Competition Law. 6

8 b) The data compilation does not take into assessment the above evaluation of like or directly competitive products analyzed in detail in the previous section. The economic indicators in the section 3 of the application cover both feature phones and smart phones. This fact impedes the evaluation of serious injury of the domestic industry as it is clear that the product scope of this investigation should be limited with only smart phones. Therefore, any data provided by the so-called supporters should not be taken into consideration by the Authority. In conclusion, the combined data provided by the supporters should not be accepted as valid and lawful by the Authority for purpose of assessing the claim of serious injury of the domestic industry. The using of the deficiency data constitutes procedural error. Therefore, the Authority is kindly requested to reject the combined data provided by the Applicant and the supporters. 5. The Existing of the Local Industry is Challengeable Article 4.1.(c) of the Safeguards Agreement provides two elaborations regarding the relevant domestic industry. First, it defines the domestic industry as the producers making products, which are like or directly competitive to the imports targeted by the investigation. Second, it adds that the serious injury must be assessed with respect to either the whole of such domestic industry, or to that part thereof which amounts to a major proportion. The same principles are valid in accordance to the provisions of the articles 2 of the Decree and Regulation. Therefore, in order to be considered as part of the domestic industry, the party should be the producer of the product concerned. Accordingly, the Authority should find out whether or not the so-called applicant and supporters have been carrying out production of smart phones during the period of investigation. In addition, the Applicant claims to have begun manufacturing smart phones only in late In the Application it is stated in section 1.1 that: > ( ) Smart Phone Design and Production, and At the end of 2013, production for local GSM Operators was launched and Vestel Venus Smart Phone production began in August Given the above facts, it is not possible to speak of serious injury for a domestic industry of smart phones that started manufacturing only recently. Besides, taking into consideration the fact that the Applicant has just started manufacturing of smart phones in August 2014, the so-called injury data provided should cover only the period after August As a matter of fact, it is not possible and legally coherent to make a finding of serious injury for a domestic industry that started manufacturing smart phones only a couple of months ago. The Authority should announce its decision and reasoning regarding the recognition of domestic industry. 7

9 As a result of the abovementioned procedural and substantial deficiencies, namely obscured scope of the investigation, unclear investigation period, doubtable producer s position and existing of local industry, as well as wrongfully acceptance of supporters of the Application, the legal consistency and legality of the investigation have been damaged considerably; the Authority should terminate the investigation right away. Part II Examination of Legal Requirements In accordance with relevant legislations (Article XIX of the General Agreement on Tariffs and Trade 1994; Article 2.1 of the Agreement on Safeguards; Articles 1, 5 and 6 of the Decree No. 2004/7305 on Safeguard Measures for Imports and Articles 1, 7, 9 and 10 of the Regulation on Safeguard Measures for Imports), the Authority must make a determination that as a result of unforeseen developments and of the effect of the obligations incurred under the General Agreement on Tariffs and Trade 1994, the product concerned is being imported into the territory of Turkey in such increased quantities, absolute or relative to domestic production or consumption, and under such conditions, as to cause or threaten to cause serious injury to the domestic producers in Turkey of the like or directly competitive products before the imposition of provisional or definitive safeguard measures. Such measures may be imposed only to the extent and for such time as may be necessary to prevent or remedy such injury. According to Turkey s Decree ( the Decree ) and the Regulation ( the Regulation ) on Safeguard Measures for Imports, any such measures may also not be against the interests of the country, i.e. the public interests. Thus, the abovementioned requirements should be identified and settled by the Authority in Turkey in order to decide upon a lawful provisional or definitive safeguard measure. 1. Increase of Imports A. Legal Test Pursuant to Article XIX:1(a) of GATT 1994, Article 2.1 of the Safeguards Agreement and Article 1, 5 and 6 of the Decree and Articles 1, 7(a), 9 and 10 of the Regulation for Turkey to impose safeguard measures, it must be find, among other, that smart phones is being imported into its territory in such increased quantities, absolute or relative to domestic production or consumption, and under such conditions, as to cause or threaten to cause serious injury. Article 2.1 of the Safeguards Agreement must then be read together with Article 4.2. of the Safeguards Agreement, which sets out the operational requirements for determining whether the conditions identified in Article 2.1. exist. Article 4.2.(a) requires in relevant part that: ( ) in the investigation to determine whether increased imports have caused or are threatening to cause serious injury to a domestic industry under the terms of this Agreement, 8

10 the competent authorities shall evaluate ( ) in particular, the rate and amount of the increase in imports of the product concerned in absolute and relative terms, the share of the domestic market taken by increased imports ( ). In other terms, two requirements must be fulfilled. The first one is a quantitative requirement, while the second one is more generally related to the conditions under which foreign products come into the territory of the Member seeking to take a safeguard measure. Moreover, it is not sufficient to demonstrate an increase in imports, because it is also necessary to demonstrate the extraordinary nature of such imports in order to meet the legal criteria for imposing any safeguard measures. The WTO jurisprudence has confirmed that for an import increase to satisfy this requirement, it must have been recent enough, sudden enough, sharp enough and significant enough, both quantitatively and qualitatively. 1 The extraordinary nature of increased imports is also confirmed by the Appellate Body Report US Lambs stating that the demonstration of unforeseen developments is a prerequisite and it follows that this demonstration must be made before the safeguard measure is applied. Otherwise, the legal basis for the measure is flawed. Because the increased imports must be as a result of an event that was unforeseen or unexpected, it follows that the increased imports must also be unforeseen or unexpected. Thus, the extraordinary nature of the domestic response to increased imports depends on the absolute or relative quantities of the product being imported as well as on the fact that the increased imports were unforeseen or unexpected. As a result, in order to reach a legally coherent and proper conclusion, the Authority must also analyze import trends in the present investigation. B. Figures The Application contains the following data for imports of mobile phones into Turkey for a period of 2009 to 2013 and first nine months of each year from 2009 to Table: Absolute imports Year Quantity (piece) IMPORTS CHANGE % Value (US$) UP* Quant ity Value UP* Argentina Safeguard Measures on Imports of Footwear Appellate Body Report, WT/DS121/AB/R, adopted 12 January 2000, para

11 Year Quantity (piece) IMPORTS CHANGE % Value (US$) UP* Quant ity Value UP* UP*: Unit price (US$/Piece) Source: The Application Table: Periodical imports Months (1-9) PERIODICAL IMPORTS CHANGE % Quantity (piece) Value (US$) UP Quantity Value UP , UP*: Unit price (US$/Piece) Source: The Application C. Analysis An analysis of the increase in imports to Turkey of the product concerned both in absolute and relative terms should be carried out by the Authority. In order to warrant a safeguard measure, imports of the product concerned should increase considerably, both in absolute terms and relative to domestic production, during the period of investigation. As it is very clearly stated in the provisions referenced above and already mentioned before, such increase in imports must consist of increases in terms of quantities, and not in increases in any other terms, such as values or unit prices. Therefore, imports increase in terms of value and unit prices should not be taken into consideration by the Authority while evaluating the extent of imports increase of the product concerned during the period of investigation. 10

12 Figure: Imports increase in terms of quantity over the years Imports Quantity (Piece) Imports Quantity (Piece) Source: Turkish Statistical Institute According to the Absolute Imports Table in Section 2 of the Application, Turkey s imports of the subject merchandise increased from 2009 to However, the imports suffered a 26% decline in 2012, which was even sharper than the 11% total increase rate between 2009 and These four years result in singly digit increases annually, with a total average increase of 4.5% in the four year period. Moreover, as suggested in the periodical data provided by the Application and confirmed by the Turkish Statistical Institute (TUIK), the average increase between the first nine months of 2010 and 2014 was around 4%. Both the Turkish and WTO legislation impose a specific level of import increase that would have to occur to meet the WTO test of increased imports, many prior cases clarify that the abovementioned import increase would not suffice to impose a safeguard measure as in fact much higher import rates were analyzed by WTO decisions and found for different reasons insufficient to constitute increased imports. For example: An import increase identical to the 24% increase in PTA imports between 2011 and 2012 was found insufficient in Chile Agricultural Products, where the Panel found that, on the facts as presented, an import increase of 24% of edible vegetable oils between two years was not significant enough considering the long-term trends. 2 2 Panel Report, Chile Price Band System and Safeguard Measures Relating to Certain Agricultural Products (WT/DS207/R), 3 May 2002, para

13 The Panel also found that an import increase of 281% of wheat in the first ten months of 1999 and a 6% increase in 1998 was, on the facts as presented, not significant enough considering the long-term trends in prior four years, when imports volumes were smaller. 3 Thus, this intervening decrease in imports in 2012 is calling into question the conclusion that there are increased imports. Regrettably, the Applicant does not provide any analysis on the 2012 intervening decrease, nor explain how the Applicant concludes an import increase in despite of such intervening decrease. Therefore, the Applicant does not provide sufficient analysis on whether there was import increase both de facto and de jure. In the Application, the Applicant only provided several tables demonstrating the fluctuation of absolute imports, proportional imports and import market shares between 2009 and 2014, but no analysis was given regarding whether such increased quantities have been recent, sudden, sharp and significant enough to cause or threaten to cause serious injury. Not to mention that even a straight increase trend cannot be concluded from those tables. As a matter of fact, the absolute imports declined in 2012, the proportional imports remained much the same and the imports market share also experienced a fluctuation among the five year period. Even upon a simple review of the data, thought the imports increased 14.1% between 2009 and 2014, the imports of the investigated product decreased 13.6 % between 2008 and 2014 and there is no increase between 2010 and 2014 and it also decreased 12.3% between 2011 and In addition to that, the imports suffered a 26% decline in 2012, which was even sharper than the 11% total increase rate between 2009 and For these reasons, ZTE believes that the quantity increase in imports between 2009 and 2013 has not been sharp enough, sudden enough and significant enough to justify safeguard measures. Additionally, as stated in the foregoing, the definition of the investigated product and the definition of the domestic industry is not clear in the Application. Telpa Telekomünikasyon Ticaret A.Ş., NCB Telekomünikasyon İletişim San. Tic. Ltd. Şti., Ova Elektronik İletişim San. ve Tic. A.Ş. and Erkayasan Telekomünikasyon Elektronik Otomotiv Tekstil İnşaat Yapı Malzemeleri San. ve Tic. Ltd. Şti. which support the Application filled out by Vestel have produced old mobile phones or smart phones? Are these companies producing smart phones now? It is clear from the Application that there is no production in 2011, and during the first 9 3 Panel Report, Chile Price Band System and Safeguard Measures Relating to Certain Agricultural Products (WT/DS207/R), 3 May 2002, para

14 months of So, if those producers are out of business between 2011 and 2012 (January-September) (in total at least 21 months) how the economic indicators of those producers related 2009 and 2010 are reliable in the injury analysis? If there is no domestic industry in 2011 and 2012 (January-September), it is not known whether the producer/producers which made limited production in the last quarter of 2012 has continued its production in 2013 and The only producer which is known having production currently is Vestel Elektronik A.Ş. Vestel started its smart phone production in August 2014 and introduced its Venüs smart phone on the 22 nd of September Based on those facts, so-called injury analysis between 2009 and 2014 is not reliable. 2. Unforeseen Development The Application does not contain an analysis on whether there was an import increase resulting from an unforeseen development. Article XIX:1(a) of the GATT provides that, If, as a result of unforeseen developments and of the effect of the obligations incurred by a contracting party under this Agreement, including tariff concessions, any product is being imported into the territory of that contracting party in such increased quantities and under such conditions as to cause or threaten serious injury to domestic producers in that territory of like or directly competitive products, the contracting party shall be free, in respect of such product, and to the extent and for such time as may be necessary to prevent or remedy such injury, to suspend the obligation in whole or in part or to withdraw or modify the concession. Unforeseen developments under Article XIX:1(a) of the GATT 1994 is one of the pertinent issues of fact and law to which the last sentence of Article 3.1 refers. It follows that Article 4.2(c) also applies to the competent authorities demonstration of unforeseen developments under Article XIX: 1(a) 4. In US Lamb, the Appellate Body ruled that the existence of unforeseen developments is a pertinent issue of fact and law under Article 3.1 of the Agreement on Safeguards, and it follows that the published report of the competent authorities, under that Article, must contain a finding or reasoned conclusion on unforeseen developments. 5 4 Appellate Body Report, United States Definitive Safeguard Measures on Imports of Certain Steel Products, [US Steel Safeguards] WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003, DSR 2003:VII, p. 3117, paras Appellate Body Report, United States Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia, WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001, DSR 2001:IX, p. 4051, para

15 In respect of the requirement of the unforeseen development, the Appellate Body further clarified that: Increased imports themselves must be unforeseen; 6 Increased imports must result from unforeseen developments ; 7 and There must be a causal link, or a logical link, between the unforeseen development and the increased imports. 8 In Argentina Footwear (EC), the Appellate Body held that the ordinary meaning of the phrase as a result of unforeseen developments requires that the developments which led to a product being imported in such increased quantities and under such conditions as to cause or threaten to cause serious injury to domestic producers must have been unexpected. 9 In Korea Dairy, the Appellate Body held that unforeseen developments are synonymous with events which are unpredictable or incapable of being foreseen, foretold or anticipated. 10 The Appellate Body in US Steel Safeguards concluded the competent authority shall provide a conclusion supported by facts and reasoning: The issue in this case is not whether certain data referred to in the USITC report had, in fact, been considered by the USITC. The USITC may indeed have considered all the relevant data contained in its report or referred to in the footnotes thereto. However, it did not use those data to explain how unforeseen developments resulted in increased imports. Rather, as the Panel found, the text to which the footnotes correspond is either totally unrelated to an explanation of unforeseen developments, or it deals generally with imports without specifying from where those imports came. 11 Hence, what is wanting here is not the data, but the reasoning that uses those data to support the conclusion. The USITC did not, in our view, provide a conclusion that is supported by facts and reasoning, in short, a reasoned conclusion, as required by Article 3.1. Moreover, as we have stated previously, it was for the USITC, and not the Panel, to provide reasoned conclusions. It is not for the Panel to do the 6 Appellate Body Report, United States - Definitive Safeguard Measures on Imports of Certain Steel Products,[US Steel Safeguards], WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R [US Steel Safeguards], adopted 10 December 2003, at para The Appellate Body explained that "[b]ecause the "increased imports" must be "as a result" of an event that was" unforeseen" or "unexpected", it follows that the increased imports must also be "unforeseen" or "unexpected". 7 Ibid. 8 Ibid., at para Appellate Body Report, Argentina Footwear (EC), para. 91. See also Appellate Body Report, Korea Definitive Safeguard Measure on Imports of Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000, DSR 2000:I, p. 3, para Appellate Body Report, Korea Definitive safeguard Measures on Imports of Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000 [Korea Dairy], at para Panel Reports, United States Definitive Safeguard Measures on Imports of Certain Steel Products, WT/DS248/R / WT/DS249/R / WT/DS251/R / WT/DS252/R / WT/DS253/R / WT/DS254/R / WT/DS258/R / WT/DS259/R / and Corr.1, adopted 10 December 2003, as modified by Appellate Body Report WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R, DSR 2003:VIII, p. 3273(footnote original),para

16 reasoning for, or instead of, the competent authority, but rather to assess the adequacy of that reasoning to satisfy the relevant requirement. In consequence, we cannot agree with the United States that the Panel was required to consider the relevant data to which the USITC referred in other sections of its report to support the USITC s finding that unforeseen developments had resulted in increased imports; and, for the reasons mentioned, we do not see how our findings in EC Tube or Pipe Fittings support the United States view to that effect. 12 Assuming, arguendo, that there were such increase in imports, the Applicant still does not demonstrate any unforeseen development as required by Article XIX of the GATT. As mentioned above, the Application does not shed any lights on how the alleged import increase was resulted from unforeseen or unexpected development, therefore fails to fulfill the requirement set in Article XIX of the GATT to initiate a safeguard investigation. 3. Serious Injury or Threat of Serious Injury A. Legal Test In order to make a determination of serious injury or threat thereof to the domestic producer of the like product, an evaluation of all relevant factors of an objective and quantifiable nature having a bearing on the situation of the domestic industry should be undertaken. Pursuant to Article XIX:1(a) GATT 1994, Article 2.1 of the Safeguards Agreement and Article 6 of the Decree, a safeguard measure may be applied where a product is being imported ( ) in such increased quantities and ( ) under such conditions that as to cause or threaten to cause serious injury. (emphasis added). Article 4.1 of the Safeguards Agreement defines serious injury as a significant impairment in the position of domestic industry while the threat of serious injury should be understood to mean serious injury that is clearly imminent, in accordance with the provisions of paragraph 2. A determination of the existence of a threat of serious injury shall be based on facts and not merely on allegation, conjecture or remote possibility. As a general matter, serious injury provided in the Safeguard Agreement has been recognized by the Appellate Body of US Wheat Gluten to be very high and stricter than the material injury standard as described in the World Trade Organization s Anti-Dumping Agreement and applied in anti-dumping investigations. 12 Appellate Body Report, United States Definitive Safeguard Measures on Imports of Certain Steel Products, WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003, DSR 2003:VII, p. 3117, para

17 Pursuant to Article 4.2 of the Safeguards Agreement in investigating whether imports have caused or are threatening to cause serious injury, the Authority should evaluate all relevant factors of an objective and quantifiable nature having a bearing on the situation of that industry, in particular: a) The rate and amount of the increase in imports in absolute and relative terms b) The share of the domestic market taken by increased imports c) Changes in the level of: - sales - production - productivity - capacity utilization - profits and losses, and - employment B. The Applicant s allegations The Application does not clearly make an allegation of serious injury or a threat of serious injury. It contains only one table and a short description of numerical progress of indexed values in one paragraph for each one. Table: Key injury factor pertaining to the Applicant and the so-called supporters Index (1-9) (1-9) (1-9) (1-9) (1-9) (1-9) Consumption Production Domestic sales Foreign sales Capacity Capacity Utilization Ratio Stocks Employment Productivity Profitability Source: the Application 16

18 It is clear that, the table on the economic indicators provided in the Application fails to prove the existence of injury, therefore, fails to prove the existence of serious injury as well. C. Analysis A review of the above data, in light of WTO strict standard for interpreting serious injury confirms that the Applicant and the supporters have not suffered injury, in particular not serious injury, nor is threatened thereby. When we take a look at the economic indicators of the domestic industry, we realize that nearly all figures improved after The trends in the economic indicators have been as follows. Figure: Trends in the economic indicators (ref. the Application) capacity production domestic sales employment (1-9) 2014(1-9) Consumption index increased from 100 to 110 between 2009 and 2013 while according to the periodical data it reached 106 in 2014(1-9). Production index decreased in 2009 from 100 to 74 in The production became in 2011 zero (since the production ceased in 2011 as the Applicant and other domestic companies were not granted contract manufacturing assignments for GSM operators) to reach 9 in According to the periodical data of 2014(1-9), the production index reached 64. Domestic sales index reaches 11 in 2013 after reaching zero in As of 2014(1-9), the domestic sales index is 58. Foreign sales were zero between 2009 and The foreign sales index reached 100 as of 2014(1-9). Capacity index improved as it was 10 in 2013 and ended up at 513 in 2014 (1-9). Capacity utilization rate decreased from 90 to 12 between 2013 and 2014 (1-9) due to the increase of capacity index in the same period. Stock increased from 25 to 1461 between 2013 and 2014 (1-9). Employment index increased from 14 to 442 between 2013 and 2014 (1-9). 17

19 Productivity index decreased from 64 to 15 between 2013 and 2014 (1-9). Profitability index decreased from 100 to 79 between 2013 and 2014 (1-9). However, the decline in the latter figures does not show an impairment of the domestic industry because: Stocks are increasing since the applicant has started manufacturing B2C products, branded Vestel Venus, in August In the past, the applicant only manufactured for the mobile telecom operators, and thus did not have to hold stocks. However, for distributing its product to final consumers, it does need to have stocks. The deterioration in the capacity utilization is the direct result of the increase in capacity from 10 to 513. In fact, 92 % of capacity utilization of 10 units of capacity is smaller than 12 % capacity utilization of 513 units of capacity. It should also be noted that the applicant, Vestel received an investment incentive certificate in January 2014 for establishing production capacity for mobile phones and tablets, and was thus increasing its capacity in the mentioned period. Therefore, the decrease in capacity utilization does not indicate deterioration, but actually an improvement. Given the increase in the capacity of the applicant, its total productivity is actually increasing while unit productivity seems to be decreasing. Third, the decrease profitability is also the result of the investment carried out. Large-scale investments are expected to and do decrease the short-term profitability of the enterprises because of the financial costs involved. It should also be noted that Vestel, received an investment incentive certificate in January 2014 for establishing production capacity for mobile phones and tablets, and was thus increasing its capacity in the mentioned period. The details of the investment certificate were published as part of the List of Investment Incentive Documents of Year 2014 Month January in the Official Gazette no dated March 7, The incentive granted to Vestel covers an investment of approximately Turkish Liras for the manufacturing of 178,200 mobile phones per year and tablet PCs per year. Therefore, this fact is clearly indicative of the improvement of Vestel s business due to capacity expansion and increasing investments. In addition, according to the market intelligence that ZTE obtained, one of the supporters Telpa is considering to form a joint venture with General Mobile and Foxconn for the manufacturing of smart phones in the near future. No company suffering serious injury could afford a new business establishment. Clearly, Telpa and its business partners still consider the smart phone business profitable. In the case of Dominican Republic-Bags, the WTO Panel struck down a safeguard after it concluded that the domestic producer could not have possibly suffered any serious injury when nearly all injury factors were positive and the producer had actually expanded capacity (Dominican Republic, Bags (Panel), supra., note 52, para. 7311). 18

20 Furthermore, with the start of domestic production and the launch of B2C products by the domestic industry, it is clear that there is an overall improvement in the position of domestic industry and not an overall impairment. Vestel s Venus model smart phones are sold-out and there is increasing consumer demand toward the Applicant s products. Overall, the domestic industry is in a healthy situation. The decrease in capacity utilization and efficiency is not caused by a decline of economic activity, but by the fact that newly built capacity is still being deployed. The economic indicators point to increases in production, domestic sales, foreign sales, capacity and employment. There is no serious injury or threat thereof in the domestic industry. 4. Causal Link In order to examine the existence of a causal link between increased imports and the threat of serious injury, and in order to ensure that injury caused by other factors is not attributed to increased imports, the Authority should analyze the effects of the following factors. A. Legal Test Pursuant to Article 4.2.(b) of the Safeguards Agreement, a safeguard measure shall not be imposed unless (an) investigation demonstrates, on the basis of objective evidence, the existence of the causal link between increased imports of the product concerned and serious injury or threat thereof. Article 4.2.(b) also states, in relevant part, that when factors other than increased imports are causing injury to the domestic industry at the same time, such injury shall not be attributed to increased imports. As held in US-Lamb (AB), the non-attribution language in Article 4.2.(b) indicates that, logically, the final identification of the injurious effects caused by increased imports must follow a prior separation of the injurious effects of the different causal factors. If the effects of the different factors are not separated and distinguished from the effects of increased imports, there can be no proper assessment of the injury caused by that single and decisive factor. (US-Lamb (AB), supra., note 15, para. 180.) Finally, in an analysis of causation, it is the relationship between the movements in imports (volume and market share) and the movements in injury factors that must be central to a causation analysis and determination and causation would be normally present where there is coincidence between an increase in imports and a decline in the relevant injury factors. (emphasis added) (Argentina-Footwear (AB), supra., note 5, para. 144 (emphasis in the original) (footnote omitted) 19

21 B. The Applicant s allegations The Application, the Initiation Communiqué, nor Turkey s WTO notification do not include any data or allegations confirming that a causation analysis has been carried out by the Applicant in the Application or by the Authority upon initiation of the Investigation. C. Analysis Considering that the application has no specific causation allegation, it is difficult for ZTE to disprove arguments that have not been made. However, brief overview of the facts of this case suggests that to the degree that the Applicant does in fact suffer deterioration in its situation such decrease of economic indicators, if any, is not caused by imports, but instead, by other factors unrelated to imports, such as the recession of Turkish economy and the number of lost tenders. First, it should be noted that the domestic production began in 2009 and ceased in 2011; because in 2011 none of the supporting Turkish companies participated to or were awarded contracts from the GSM operators. Therefore, decline or increase in both imports and production of domestic industry was linked with the abovementioned situation of the domestic industry. In other terms, domestic production had nothing to do with imports, but rather with winning or losing contracts. Second, Turkish economy witnessed recession in 2012 as the annual growth rate of the economy declined from 8.8% to 2.1% between 2011 and The negative pace of the economy had negative impacts on the overall demand of the mobile phone market as the consumption data decreased from 2011 to Moreover, the recession observed in the economy has also affected GSM operators so that they were unable to open tenders for contract manufacturing in As a result, the domestic producers had only a limited manufacturing activity. Figure: Turkish economy annual growth rate (%) progress over the years Source: Turkish Ministry of Economy 20

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