Regulation (EU) 2019/287 of the European Parliament and of the Council of 13 February 2019 implementing bilateral safeguard clauses and other mechanisms allowing for the temporary withdrawal of preferences in certain trade agreements concluded between the European Union and third countries

Article 1

Subject matter and scope

These provisions shall apply without prejudice to any specific provisions contained in the trade agreements and listed in the Annex in relation to bilateral safeguard clauses or other mechanisms for the temporary withdrawal of tariff preferences or of other preferential treatment, where such provisions are not in accordance with this Regulation.

This Regulation shall therefore not prevent the Commission from negotiating such specific provisions in future trade agreements.

Article 2

Definitions

For the purposes of this Regulation:

(1) ‘Agreement’ means a trade agreement referred to in the Annex to this Regulation;

(2) ‘bilateral safeguard clause’ means a provision relating to the temporary suspension of tariff preferences that is set out in an Agreement;

(3) ‘interested parties’ means parties affected by the imports of the product;

(4) ‘Union industry’ means either the Union producers as a whole of the like or directly competitive product who operate within the territory of the Union or Union producers whose collective output of the like or directly competitive product constitutes a major proportion of the total Union production of that product; where a like or a directly competitive product is only one of several products that are made by the Union producers, the Union industry shall be defined in relation to the specific operations that are involved in the production of the like or directly competitive product;

(5) ‘serious injury’ means a significant overall impairment to the position of Union industry;

(6) ‘threat of serious injury’ means serious injury that is clearly imminent, the determination of the existence of which shall be based on verifiable information;

(7) ‘sensitive product’ means a product identified in a specific Agreement as being relatively more vulnerable to a surge of imports than other products;

(8) ‘transition period’ means a period of 10 years from the entry into force of an Agreement, unless otherwise defined in the relevant Agreement;

(9) ‘country concerned’ means a third country that is a party to an Agreement.

Article 3

Principles

A safeguard measure may be imposed in accordance with this Regulation where a product originating in a country concerned is imported into the Union:

(a) in such increased quantities, in absolute terms or relative to Union production; and

(b) under such conditions, as to cause or threaten to cause serious injury to the Union industry; and

(c) the increase of imports is the result of the effect of obligations incurred under the respective Agreement, including of the reduction or the elimination of the customs duties on that product.

A safeguard measure may take one of the following forms:

(a) a suspension of a further reduction of the rate of customs duty on the product concerned provided for in the Tariff Elimination Schedule of the Agreement with the country concerned;

(b) an increase in the rate of customs duty on the product concerned to a level which does not exceed the lesser of: (i) the most-favoured-nation applied rate of customs duty on the product concerned in effect at the time the safeguard measure is taken; or (ii) the base rate of customs duty as specified in the Tariff Elimination Schedule of the Agreement with the country concerned.

Article 4

Monitoring

Article 5

Initiation of an investigation

Requests for the initiation of an investigation shall contain the following information:

(a) the rate and amount of the increase in imports of the product concerned, in absolute and relative terms;

(b) the share of the domestic market taken by the increased imports, and the changes regarding the Union industry with respect to the level of sales, production, productivity, capacity utilisation, profits and losses, and employment.

The notice of initiation shall contain the following elements:

(a) a summary of the information received by the Commission and a request that all relevant information be communicated to the Commission;

(b) the period within which interested parties may make their views known in writing and submit information to the Commission, if such views and information are to be taken into account during the investigation;

(c) the period within which interested parties may apply to be heard by the Commission in accordance with Article 6(9).

Article 6

Conduct of investigation

Article 7

Prior surveillance measures

Article 8

Imposition of provisional safeguard measures

The Commission shall adopt provisional safeguard measures in critical circumstances where a delay is likely to cause damage which would be difficult to repair, making immediate action necessary, pursuant to a preliminary determination by the Commission on the basis of the factors referred to in Article 6(5) that there is sufficient prima facie evidence that a product originating in the country concerned is imported:

(a) in such increased quantities, in absolute terms or relative to Union production; and

(b) under such conditions, as to cause or threaten to cause serious injury to the Union industry; and

(c) the increase of imports is the result of the reduction or the elimination of the customs duties on that product.

Those provisional safeguard measures shall be adopted by means of implementing acts in accordance with the advisory procedure referred to in Article 17(2).

Article 9

Termination of investigations and proceedings without measures

Article 10

Imposition of definitive safeguard measures

Article 11

Duration and review of safeguard measures

Article 12

Confidentiality

Article 13

Report

Article 14

Other mechanisms and criteria for the temporary withdrawal of tariff preferences or of other preferential treatment

Where an Agreement provides for other mechanisms or criteria allowing for the temporary withdrawal of tariff preferences or of other preferential treatment with respect to certain products, such as a stabilisation mechanism in relation to the Union's outermost regions, for example, where the conditions laid down in the relevant Agreement are met, the Commission shall adopt implementing acts to:

(a) suspend, or confirm the non-suspension of, the tariff preferences or other preferential treatment for the product concerned;

(b) reinstate the tariff preferences or other preferential treatment where the conditions laid down in the relevant Agreement are met;

(c) adjust the suspension to conform with the conditions in the relevant Agreement; or

(d) take any other action specified in the relevant Agreement.

Those acts shall be adopted in accordance with the examination procedure referred to in Article 17(3).

Article 15

Delegated acts

The Commission is empowered to adopt delegated acts in accordance with Article 16 in order to amend the Annex with a view to adding or deleting entries relating to:

(a) an Agreement;

(b) any specific provisions as referred to in the second subparagraph of Article 1(1);

(c) any sensitive products;

(d) any provisions laying down specific rules for other mechanisms as referred to in Article 14 concerning inter alia, if applicable, monitoring, deadlines for investigations, and reporting.

Article 16

Exercise of the delegation

Article 17

Committee procedure

Article 18

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

ANNEX

Free Trade Agreement between the European Union and the Republic of Singapore

Date of application	21.11.2019
Bilateral safeguard clauses or other mechanisms	Chapter Three Trade Remedies, Section C Bilateral Safeguard Clause
Provision(s) contained in the Agreement	Article 3.11.3 ‘3.  The determination referred to in Article 3.10 (Application of Bilateral Safeguard Measure) shall not be made unless the investigation demonstrates on the basis of objective evidence the existence of a causal link between increased imports from the other party and serious injury or the threat thereof. In this respect, due consideration shall be given to other factors, including imports of the same product from other countries.’ Article 3.11.4 ‘4.  Each Party shall ensure that its competent authorities complete any such investigation within one year of the date of its initiation.’ Article 3.11.5(c) ‘5.  Neither Party shall apply a bilateral safeguard measure as set out in paragraph 1 of Article 3.10 (Application of Bilateral Safeguard Measure): […] (c) beyond the expiration of the transition period, except with the consent of the other Party.’ Article 3.11.6 ‘6.  No measure shall be applied again to the import of the same good during the transition period, unless a period of time equal to half of the period during which the safeguard measure was applied previously has elapsed. In this case, paragraph 3 of Article 3.13 (Compensation) shall not apply.’ Article 3.11.7 ‘7.  When a Party terminates a bilateral safeguard measure, the rate of customs duty shall be the rate that, according to its Schedule included in Annex 2-A, would have been in effect but for the measure.’

Free Trade Agreement between the European Union and the Socialist Republic of Viet Nam

Date of application	1.8.2020
Bilateral safeguard clauses or other mechanisms	Chapter 3 Trade Remedies, Section C Bilateral safeguard clause
Provision(s) contained in the Agreement	Article 3.11.4 ‘4.  The investigation shall also demonstrate, on the basis of objective evidence, the existence of a causal link between increased imports and the serious injury or threat thereof. The investigation shall also take into consideration the existence of any factor other than increased imports which may also cause injury at the same time.’ Article 3.11.5 ‘5.  Each Party shall ensure that its competent authorities complete the investigation referred to in paragraph 1 within one year of the date of its initiation.’ Article 3.11.6(c) ‘6.  A Party shall not apply a bilateral safeguard measure: […] (c) beyond the expiration of the transition period, except with the consent of the other Party.’ Article 3.11.7 ‘7.  In order to facilitate adjustment in a situation where the expected duration of a bilateral safeguard measure is more than two years, the Party applying the measure shall progressively liberalise the measure at regular intervals during the period of application.’ Article 3.11.8 ‘8.  When a Party terminates a bilateral safeguard measure, the rate of customs duty shall be the rate that, according to its schedule included in Annex 2-A (Reduction or Elimination of Customs Duties), would have been in effect but for the measure.’ Article 3.14 ‘14.  In order to ensure the maximum efficiency for the application of the trade remedy rules under this Chapter, the investigating authorities of the Parties shall use the English language as a basis for communications and documents exchanged in the context of trade remedy investigations between the Parties.’

Agreement between the European Union and Japan for an Economic Partnership

Date of application	1.2.2019
Bilateral safeguard clauses or other mechanisms	Chapter 5 Trade Remedies, Section A General provisions and Section B Bilateral safeguard measures, and Article 18 Safeguard of Annex 2-C Motor Vehicles and Parts
Provision(s) contained in the Agreement	Article 5.1(d) ‘(d)  “transition period” means, in relation to a particular originating good, the period beginning on the date of entry into force of this Agreement and ending 10 years after the date of completion of tariff reduction or elimination on that good in accordance with Annex 2-A.’ Article 5.2.2(b)(ii) ‘(ii)  most-favoured-nation applied rate of customs duty in effect on the day immediately preceding the date of entry into force of this Agreement.’ Article 5.3.2 ‘2.  Bilateral safeguard measures may only be applied during the transition period.’ Article 5.3.3 ‘3.  In order to facilitate adjustment in a situation where the expected duration of a bilateral safeguard measure exceeds one year, the Party maintaining the bilateral safeguard measure shall progressively liberalise the bilateral safeguard measure at regular intervals during the period of application.’ Article 5.3.4 ‘4.  No bilateral safeguard measure shall be applied to the import of a particular originating good which has already been subject to such a bilateral safeguard measure for a period of time equal to the duration of the previous bilateral safeguard measure or one year, whichever is longer.’ Article 5.3.5 ‘5.  Upon the termination of a bilateral safeguard measure, the rate of customs duty for the originating good subject to the measure shall be the rate which would have been in effect but for the bilateral safeguard measure.’ Article 5.4.2 ‘2.  The investigation shall in all cases be completed within one year following its date of initiation.’ Article 5.4.4 ‘4.  The determination that increased imports of an originating good have caused or are threatening to cause serious injury to a domestic industry shall not be made unless the investigation demonstrates, on the basis of objective evidence, the existence of a causal link between the increased imports of the originating good and the serious injury or threat of serious injury to the domestic industry. In this determination, factors other than the increased imports of the originating good which are also causing injury to the domestic industry at the same time shall be taken into consideration.’ Article 5.8 ‘8.  The notifications referred to in paragraph 1 of Article 5.5 and paragraph 2 of Article 5.7 and any other communication between the Parties under this Section shall be made in English.’ Article 18 Safeguard of Annex 2-C Motor Vehicles and Parts ‘1.  During the 10 years following the entry into force of this Agreement, each of the Parties reserves the right to suspend equivalent concessions or other equivalent obligations in the event that the other Party (): (a) does not apply or ceases applying a UN Regulation as specified in Appendix 2-C-1; or (b) introduces or amends any other regulatory measure that nullifies or impairs the benefits of the application of a UN Regulation as specified in Appendix 2-C-1. 2. Suspensions pursuant to paragraph 1 shall remain in force only until a decision is made in accordance with the accelerated dispute settlement procedure referred to in Article 19 of this Annex or a mutually acceptable solution is found, including through consultations under subparagraph (b) of Article 19 of this Annex, whichever is earlier. ()  The level of the suspension of concessions or other obligations shall be no more than the level of the amount of the bilateral trade between the Parties of products covered by the UN Regulation referred to in subparagraph 1(a) or (b) of this Article.’

Free Trade Agreement between the European Union and New Zealand