http://www.legislation.gov.uk/eur/2016/400/chapter/IIRegulation (EU) 2016/400 of the European Parliament and of the Council of 9 March 2016 implementing the safeguard clause and the anti-circumvention mechanism provided for in the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other partRegulation (EU) 2016/400 of the European Parliament and of the CouncilRegulation (EU) 2016/400 of the European Parliament and of the Council of 9 March 2016 implementing the safeguard clause and the anti-circumvention mechanism provided for in the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part2020-12-12King's Printer of Acts of Parliamenthttps://webarchive.nationalarchives.gov.uk/eu-exit/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32016R0400texttext/xmlen2016-03-09 CHAPTER II <Strong>SAFEGUARD PROVISIONS</Strong> Principles Article 3 1 A safeguard measure may be imposed in accordance with this Regulation where a product originating in the Republic of Moldova is, as a result of the reduction or the elimination of the customs duties on that product, imported into the Union in such increased quantities, in absolute terms or relative to Union production, and under such conditions as to cause or threaten to cause serious injury to the Union industry. 2 A safeguard measure may take one of the following forms: a a suspension of a further reduction in the rate of customs duty on the product concerned provided for in the Agreement; b an increase in the rate of customs duty on the product concerned to a level which does not exceed the lesser of: the most-favoured-nation (MFN) applied rate of customs duty on the product concerned in effect at the time the measure is taken, or the base rate of customs duty as specified in the Schedules included in Annex XV pursuant to Article 147 of the Agreement. Initiation of proceedings Article 4 1 Proceedings shall be initiated by the Commission upon request by a Member State or by any legal person or any association not having legal personality acting on behalf of the Union industry, or on the Commission’s own initiative, if it is apparent to the Commission that there is sufficient prima facie evidence, as determined on the basis of the factors referred to in Article 5(5), to justify such initiation. 2 The request shall generally contain the following information: 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 and changes in the level of sales, production, productivity, capacity utilisation, profits and losses, and employment regarding the Union industry. 3 Proceedings may also be initiated in the event that there is a surge in imports concentrated in one or several Member States, provided that there is sufficient prima facie evidence, as determined on the basis of the factors referred to in Article 5(5), to justify such initiation. 4 A Member State shall inform the Commission if trends in imports from the Republic of Moldova appear to call for safeguard measures. That information shall include the evidence mentioned in paragraphs 1 and 2, and, if applicable, in paragraph 3. 5 The Commission shall inform the Member States when it receives a request to initiate proceedings or when it considers the initiation of proceedings to be appropriate on its own initiative pursuant to paragraph 1. 6 Where it is apparent that there is sufficient prima facie evidence to justify the initiation of proceedings, the Commission shall initiate such proceedings and shall publish a notice of initiation of investigations in the Official Journal of the European Union. Initiation of proceedings shall take place within 1 month of receipt by the Commission of the request pursuant to paragraph 1. 7 The notice referred to in paragraph 6 shall: a contain a summary of the information received and require that all relevant information be communicated to the Commission; b state the period within which interested parties may make known their views in writing and submit information to the Commission, if such views and information are to be taken into account during the proceedings; c state the period within which interested parties may apply to be heard orally by the Commission in accordance with Article 5(9). Investigations Article 5 1 Following the publication of the notice referred to in Article 4(6),the Commission shall conduct an investigation. 2 The Commission may request Member States to supply information and Member States shall take whatever steps are necessary in order to give effect to any such request. If that information is of general interest and is not confidential in accordance with Article 11, it shall be added to the non-confidential file as provided for in paragraph 8 of this Article. 3 The investigation shall, where possible, be concluded within 6 months of its initiation. That time limit may be extended by a further period of 3 months in exceptional circumstances such as the involvement of an unusually high number of interested parties or complex market situations. The Commission shall notify all interested parties of any such extension and explain the reasons therefor. 4 The Commission shall seek all information it considers necessary to make a determination with regard to the conditions set out in Article 3(1), and shall, where appropriate, endeavour to verify that information. 5 In the investigation to determine whether increased imports have caused or are threatening to cause serious injury to the Union industry, the Commission shall evaluate all relevant factors of an objective and quantifiable nature having a bearing on the situation of the Union industry, 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 and changes in the level of sales, production, productivity, capacity utilisation, profits and losses, and employment. This list is not exhaustive and other relevant factors, such as stocks, prices, return on capital employed and cash flow, may also be taken into consideration by the Commission in its determination of the existence of serious injury or threat of serious injury. 6 Interested parties who have submitted information pursuant to point (b) of Article 4(7) and representatives of the Republic of Moldova may, upon written request, inspect all information made available to the Commission in connection with the investigation, other than internal documents prepared by the Union authorities or those of the Member States, provided that that information is relevant to the presentation of their case and not confidential in accordance with Article 11 and that it is used by the Commission in the investigation. Interested parties may communicate to the Commission their views on the information made available. Where there is sufficient prima facie evidence in support of those views, the Commission shall take them into consideration. 7 The Commission shall ensure that all data and statistics which are used for the investigation are representative, available, comprehensible, transparent and verifiable. 8 The Commission shall, as soon as the necessary technical framework is in place, ensure password-protected online access to the non-confidential file (the online platform), which it shall manage and through which all information which is relevant and is not confidential in accordance with Article 11 shall be disseminated. The European Parliament, Member States and interested parties shall be granted access to that platform. 9 The Commission shall hear interested parties, in particular where they have made a written application within the period laid down in the notice published in the Official Journal of the European Union, showing that they are likely to be affected by the outcome of the investigation and that there are special reasons for them to be heard orally. The Commission shall hear interested parties on further occasions if there are special reasons therefor. 10 Where information is not supplied within the time limits set by the Commission, or where the investigation is significantly impeded, the Commission may make findings on the basis of the facts available. Where the Commission finds that any interested party or any third party has supplied it with false or misleading information, it shall disregard that information and may make use of the facts available. 11 The Commission shall notify the Republic of Moldova in writing of the initiation of an investigation. Prior surveillance measures Article 6 1 The Commission may adopt, by means of implementing acts, prior surveillance measures in regard to imports from the Republic of Moldova where the trend in imports of a product is such that it could lead to one of the situations referred to in Articles 3(1) and 4(1) and (3). Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 13(3). 2 Prior surveillance measures shall have a limited period of validity. Unless otherwise provided, they shall cease to be valid at the end of the second 6-month period following the first 6 months after their introduction. Imposition of provisional safeguard measures Article 7 1 The Commission shall adopt, by means of implementing acts, provisional safeguard measures in critical circumstances where a delay in imposing safeguard measures would cause damage which would be difficult to repair, pursuant to a preliminary determination on the basis of the factors referred to in Article 5(5) that there is sufficient prima facie evidence that imports of a product originating in the Republic of Moldova have increased as a result of the reduction or elimination of a customs duty in accordance with the Schedules included in Annex XV pursuant to Article 147 of the Agreement and that such imports cause serious injury, or threat of serious injury, to the Union industry. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 13(3) of this Regulation. 2 On duly justified imperative grounds of urgency, including the case referred to in paragraph 3, the Commission shall adopt immediately applicable implementing acts imposing provisional safeguard measures in accordance with the procedure referred to in Article 13(5). 3 Where a Member State requests immediate intervention by the Commission and where the conditions set out in paragraph 1 are met, the Commission shall take a decision within five working days of receiving the request. 4 Provisional safeguard measures shall not apply for more than 200 calendar days. 5 Should the provisional safeguard measures be repealed because the investigation shows that the conditions set out in Article 3(1) are not met, any customs duty collected as a result of those provisional safeguard measures shall be refunded automatically. 6 Provisional safeguard measures shall apply to every product which is put into free circulation after the date of entry into force of those measures. Termination of investigations and proceedings without measures Article 8 1 Where the facts as finally established show that the conditions set out in Article 3(1)are not met, the Commission shall adopt, by means of an implementing act, a decision terminating the investigation and proceedings and publish that decision in the Official Journal of the European Union. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 13(4). 2 The Commission shall make public, with due regard to the protection of confidential information in accordance with Article 11, a report setting out its findings and reasoned conclusions reached on all pertinent issues of fact and law. Imposition of definitive safeguard measures Article 9 1 Where the facts as finally established show that the conditions set out in Article 3(1) are met, the Commission shall invite the authorities of the Republic of Moldova to hold consultations in accordance with Article 160(2) of the Agreement. Where no satisfactory solution has been reached within 30 days, the Commission may adopt, by means of implementing acts, definitive safeguard measures. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 13(4) of this Regulation. 2 The Commission shall make public, with due regard to the protection of confidential information in accordance with Article 11, a report containing a summary of the material facts and considerations relevant to the determination. Duration and review of safeguard measures Article 10 1 A safeguard measure shall remain in force only for such period of time as may be necessary to prevent or remedy serious injury to Union industry and to facilitate adjustment. That period shall not exceed 2 years, unless it is extended pursuant to paragraph 3. 2 A safeguard measure shall remain in force pending the outcome of the review under paragraph 3. 3 The initial duration of a safeguard measure may be extended by up to 2 years provided that the Commission determines in a review that the safeguard measure continues to be necessary to prevent or remedy serious injury to Union industry and that there is evidence that the Union industry is adjusting. 4 Any extension pursuant to paragraph 3 shall be preceded by an investigation initiated upon a request by a Member State or by any legal person or any association not having legal personality acting on behalf of the Union industry, or on the Commission’s own initiative, if there is sufficient prima facie evidence that the conditions laid down in paragraph 3 are met, on the basis of factors referred to in Article 5(5). 5 A notice of the initiation of an investigation shall be published in the Official Journal of the European Union in accordance with Article 4(6) and (7) mutatis mutandis. The investigation shall be conducted, and any decision regarding an extension pursuant to paragraph 3 of this Article shall be made, in accordance with Articles 5, 8 and 9 mutatis mutandis. 6 The total duration of a safeguard measure shall not exceed 4 years, including the period of application of any provisional safeguard measure and the initial period of application and extension thereof. 7 A safeguard measure shall not be applied beyond the expiry of the transitional period, except with the consent of the Republic of Moldova. Confidentiality Article 11 1 Information received pursuant to this Regulation shall be used only for the purpose for which it was requested. 2 Neither information of a confidential nature nor any information provided on a confidential basis received pursuant to this Regulation shall be disclosed without the express consent of the supplier of such information. 3 Each request for confidentiality shall state the reasons why the information is confidential. However, if the supplier of the information requests that the information not be made public or disclosed, in full or in summary form, and if that request is unjustified, the information concerned may be disregarded. 4 Information shall in any case be considered to be confidential if its disclosure is likely to have a significantly adverse effect upon the supplier or the source of such information. 5 Paragraphs 1 to 4 shall not preclude reference by the Union authorities to general information and in particular to reasons on which decisions taken pursuant to this Regulation are based. Those authorities shall, however, take into account the legitimate interest of natural and legal persons concerned that their business secrets should not be divulged.