CHAPTER IV

GENERAL SAFEGUARD PROVISIONS

Definitions
Article 9
For the purposes of this Chapter, the following definitions apply:
1. ‘Union industry’ means the Union producers as a whole of the like or directly competitive products operating within the territory of the Union, or those Union producers whose collective output of the like or directly competitive product constitutes a major proportion of the total Union production of those products;
2. ‘serious injury’ means a significant overall impairment in the position of the Union industry;
3. ‘threat of serious injury’ means serious injury that is clearly imminent;
4. ‘disturbances’ means disorders in a sector or industry;
5. ‘threat of disturbances’ means disturbances that are clearly imminent.

Principles
Article 10
1
A safeguard measure may be imposed in accordance with the provisions set out in this Chapter where products originating in regions or states listed in Annex I are being imported into the Union in such increased quantities and under such conditions as to cause or threaten to cause any of the following:
a
serious injury to Union industry;
b
disturbances in a sector of the economy, particularly where those disturbances produce major social problems or difficulties which could bring about serious deterioration in the economic situation of the Union; or
c
disturbances in the markets of agricultural products covered by Annex I to the WTO Agreement on Agriculture or mechanisms regulating those markets.
2
In cases where products originating in regions or states listed in Annex I are being imported into the Union in such increased quantities and under such conditions as to cause or threaten to cause disturbances in the economic situation of one or several of the outermost regions of the Union, a safeguard measure may be imposed in accordance with the provisions set out in this Chapter.

Determination of the conditions to impose safeguard measures
Article 11
1
The determination of serious injury or a threat thereof shall cover, inter alia, the following factors:
a
the volume of imports, in particular where there has been a significant increase, either in absolute terms or relative to production or consumption in the Union;
b
the price of imports, in particular where there has been a significant price undercutting in comparison with the price of a like product in the Union;
c
the consequent impact on Union industry as indicated by trends in certain economic factors such as production, capacity utilisation, stocks, sales, market share, the depression of prices or prevention of price increases which would normally have occurred, profits, return on capital employed, cash flow and employment;
d
factors other than trends in imports which are causing or may have caused injury to the Union industry concerned.
2
The determination of disturbances or a threat thereof shall be based on objective factors, including the following elements:
a
the increase in the volume of imports in absolute terms or relative to production in the Union and to imports from other sources; and
b
the effect of such imports on prices; or
c
the effect of such imports on the Union industry or the economic sector concerned in relation to, inter alia, the levels of sales, production, financial situation and employment.
3
In determining whether imports are made under such conditions as to cause or threaten to cause disturbances in the markets of agricultural products or mechanisms regulating those markets, including regulations creating common market organisations (CMOs), all relevant objective factors shall be taken into consideration, including one or more of the following elements:
a
the volume of imports in comparison with that in previous calendar or marketing years, as the case may be, internal production and consumption, and future levels planned in accordance with the reform of CMOs;
b
the level of internal prices in comparison with the reference or target prices, if applicable, and, if not applicable, in comparison with the average internal market prices during the same period of previous marketing years;
c
in the markets for products under tariff heading 1701, situations where during two consecutive months the average Union market price of white sugar falls below 80 % of the average Union market price for white sugar during the previous marketing year.
4
In determining whether the conditions referred to in paragraphs 1, 2 and 3 are met in the case of the outermost regions of the Union, the analyses shall be restricted to the territory of the outermost region or regions concerned. Particular attention shall be paid to the size of the local industry, its financial situation and the employment situation.

Initiation of proceedings
Article 12
1
An investigation shall be initiated upon request by a Member State or on the Commission's own initiative if it is apparent to the Commission that there is sufficient evidence to justify such initiation.
2
The Member States shall inform the Commission if trends in imports from any of the regions or states listed in Annex I appear to call for safeguard measures. That information shall include the evidence available, as determined on the basis of the criteria laid down in Article 11. The Commission shall pass that information on to all Member States within three working days of receipt thereof.
3
Where it is apparent that there is sufficient evidence to justify the initiation of proceedings, the Commission shall publish a notice in the Official Journal of the European Union. Proceedings shall be initiated within one month of the date of receipt of information from a Member State.
The Commission shall inform the Member States of its analysis of the information normally within 21 days of the date on which the information was provided to the Commission.
4
If the Commission takes the view that any of the circumstances set out in Article 10 exist, it shall immediately notify the region or state listed in Annex I concerned of its intention to initiate an investigation. The notification may be accompanied by an invitation for consultations with a view to clarifying the situation and arriving at a mutually satisfactory solution.

Investigation
Article 13
1
Following the initiation of proceedings, the Commission shall commence an investigation.
2
The Commission may request Member States to provide information, and Member States shall take whatever steps are necessary in order to give effect to any such request. Where that information is of general interest or where its transmission was requested by a Member State, the Commission shall forward it to all Member States provided that it is not confidential; if it is confidential, the Commission shall forward a non-confidential summary.
3
In the event of an investigation restricted to an outermost region of the Union, the Commission may request the competent local authorities to provide the information referred to in paragraph 2 via the Member State concerned.
4
The investigation shall, whenever possible, be concluded within six months of its initiation. In exceptional circumstances, that time limit may be extended by a further period of three months.

Imposition of provisional safeguard measures
Article 14
1
Provisional safeguard measures shall be applied in critical circumstances where a delay would cause damage which would be difficult to repair, pursuant to a preliminary determination that any of the circumstances set out in Article 10 exist. Such provisional safeguard measures shall be adopted in accordance with the advisory procedure referred to in Article 19(4), or, in cases of urgency, in accordance with Article 19(6).
2
In view of the particular situation of outermost regions of the Union and their vulnerability to any surge in imports, provisional safeguard measures shall be applied in proceedings that concern them where a preliminary determination has shown that imports have increased. Those provisional safeguard measures shall be adopted in accordance with the advisory procedure referred to in Article 19(4), or, in cases of urgency, in accordance with Article 19(6).
3
Where a Member State requests immediate intervention by the Commission and where the conditions laid down in paragraph 1 or 2 are met, the Commission shall take a decision within five working days of receipt of the request.
4
Provisional safeguard measures may take the form of an increase in the customs duty on the product concerned up to a level which does not exceed the customs duty applied to other WTO members, or tariff quotas.
5
Provisional safeguard measures shall not apply for more than 180 days. Where provisional measures are restricted to outermost regions, they shall not apply for more than 200 days.
6
If the provisional safeguard measures are repealed because the investigation shows that the conditions laid down in Articles 10 and 11 are not met, any duty collected as a result of those measures shall be refunded automatically.

Termination of proceedings and investigations without measures
Article 15
Where safeguard measures are deemed unnecessary, the proceedings and investigations shall be terminated in accordance with the examination procedure referred to in Article 19(5).

Imposition of definitive safeguard measures
Article 16
1
Where the facts as finally established show that any of the circumstances set out in Article 10 exist, the Commission shall request consultations with the region or state concerned in the context of the appropriate institutional arrangement set up in the relevant agreements permitting a region or state to be included in Annex I, with a view to seeking a mutually satisfactory solution.
2
If the consultations referred to in paragraph 1 of this Article do not lead to a mutually satisfactory solution within 30 days of the matter being referred to the region or state concerned, a decision to impose definitive safeguard measures shall be taken by the Commission in accordance with the examination procedure referred to in Article 19(5) within 20 working days of the end of the consultation period.
3
Definitive safeguard measures may take one of the following forms:
a
a suspension of the further reduction of the rate of import duty for the product concerned originating in the region or state concerned;
b
an increase in the customs duty on the product concerned up to a level which does not exceed the customs duty applied to other WTO members;
c
a tariff quota.
4
No definitive safeguard measure shall be applied on the same product from the same region or state less than one year after previous such measures have lapsed or been removed.

Duration and review of safeguard measures
Article 17
1
A safeguard measure shall remain in force only for such period of time as may be necessary to prevent or remedy the serious injury or disturbances. That period shall not exceed two years, including the duration of any provisional measure, unless it is extended in accordance with paragraph 2. Where the measure is restricted to one or several of the outermost regions of the Union, the period of application may not exceed four years.
2
The initial period of duration of a safeguard measure may exceptionally be extended provided that it is determined that the safeguard measure continues to be necessary to prevent or remedy serious injury or disturbances.
3
Extensions shall be adopted in accordance with the procedures set out in this Regulation applicable to investigations using the same procedures as the initial measures.
The total duration of a safeguard measure may not exceed four years, including any provisional measure. In the event of a measure restricted to one or several of the outermost regions of the Union, that limit shall be extended to eight years.
4
If the duration of a safeguard measure exceeds one year, it shall be progressively liberalised at regular intervals during its period of application, including any extension.
Consultations with the region or state concerned shall be held periodically in the appropriate institutional bodies set up under the relevant agreements, with a view to establishing a timetable for the abolition of safeguard measures as soon as circumstances permit.

Surveillance measures
Article 18
1
Where the trend in imports of a product originating in an ACP State is such that such imports could cause any of the circumstances referred to in Article 10, imports of that product may be made subject to prior Union surveillance.
2
The decision to impose surveillance shall be taken by the Commission in accordance with the advisory procedure referred to in Article 19(4).
3
Surveillance measures shall have a limited period of validity. Unless otherwise provided, they shall cease to be valid at the end of the second six-month period following the first six months after the measures were introduced.
4
Surveillance measures may be restricted to the territory of one or several of the outermost regions of the Union, where necessary.
5
The decision to impose surveillance measures shall be communicated immediately to the appropriate institutional body set up in the relevant agreements permitting a region or state to be included in Annex I.

Committee procedure
Article 19
1
For the purposes of Articles 14, 15, 16 and 18 of this Regulation, the Commission shall be assisted by the Committee on Safeguards established by Article 3(1) of Regulation (EU) 2015/478 of the European Parliament and of the Council . That Committee shall be a committee within the meaning of Regulation (EU) No 182/2011.
2
For the purposes of Articles 5 and 6 of this Regulation and for the purposes of Article 6(11) and (13) and Article 36(4) of Annex II to this Regulation, the Commission shall be assisted by the Customs Code Committee established by Article 285(1) of Regulation (EU) No 952/2013 of the European Parliament and of the Council . That Committee shall be a committee within the meaning of Regulation (EU) No 182/2011.
3
For the purposes of Articles 7 and 8 of this Regulation, the Commission shall be assisted by the Committee for the Common Organisation of the Agricultural Markets established by Article 229(1) of Regulation (EU) No 1308/2013 of the European Parliament and of the Council . That Committee shall be a committee within the meaning of Regulation (EU) No 182/2011.
4
Where reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply.
5
Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
6
Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 4 thereof, shall apply.

Exceptional measures with limited territorial application
Article 20
Where it emerges that the conditions laid down for the adoption of safeguard measures are met in one or more Member States, the Commission, after having examined alternative solutions, may exceptionally authorise the application of surveillance or safeguard measures restricted to the Member State or Member States concerned if it considers that such measures applied at that level are more appropriate than measures applied throughout the Union. Such measures shall be of a strictly limited duration and, insofar as possible, shall not disrupt the operation of the internal market.
Regulation (EU) 2015/478 of the European Parliament and of the Council of 11 March 2015 on common rules for imports (OJ L 83, 27.3.2015, p. 16).
Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ L 269, 10.10.2013, p. 1).
Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ L 347, 20.12.2013, p. 671).