WORLD TRADE
ORGANIZATIONG/SG/Q1/POL/5
9 October 2002
(02-5437)
Committee on Safeguards Original:  English
NOTIFICATION OF LAWS AND REGULATIONS UNDER
ARTICLE 12.6 OF THE AGREEMENT
Replies to Questions Posed by the UNITED STATES1
Regarding the Notification of POLAND2
The following communication, dated 7 October 2002, has been received from the Permanent
Mission of Poland.
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Q1. Article 1, paragraph 1, of the Polish law and various other articles of the law, refer to
the taking of safeguard measures against “ excessive imports “ and Article 3 of the law appears
to indicate when imports might be excessive. Howe ver, this is not a term used in the Safeguards
Agreement. For purposes of the Polish law, what does the term mean, and what is its
significance?
Reply
The term  “excessive imports”, as used in Artic le 3 of the Polish Law, means imports which
are being realized in such increased quantities, absolute or relative to domestic production and undersuch conditions as to cause or threaten to cause serious injury to the domestic industry that produces
like or directly competitive products.  The term in question was introduced for legislative drafting
reasons and is to serve as an equivalent  to the phrase defining injurious imports, as described in
Article 2, paragraph 1, of the Safeguards Agreement.
Q2. The definition of “ like products’ in Article 4, paragraph 1(1), of the Polish law suggests
that there might be two types of “ like” domestic products in a safeguards investigation,
products that are “ identical in every respec t” and “ other products which, although not
identical in every respect, have characteristics strictly corresponding to those of the products
under investigation”.  When both types of domestic products exist, please explain how theSafeguards Agreement authorizes a member to limit the domestic industry to the producers of
the first type of product.  Please also explain the difference between this “ other (like) products”
definition and the definition of “ directly competitive products” in Article 4, paragraph 1(2), of
the Polish law.
Reply
The Safeguards Agreement does not contain a definition of the term “like product”.  The
definition in Article 4 has been borrowed from Article 2 paragraph 6 of the Agreement on
                                                     
1 G/SG/Q1/POL/4
2 G/SG/N/1/POL/3G/SG/Q1/POL/5
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Implementation of Article VI of the General Agreement on Tariffs and Trade 1994.  We are of the
opinion that the term “ like product” should be used in the internally consistent way throughout all
WTO agreements, absent any suggestion to the contrary.  Any differences between the definition in
question and the AD Article 2.6 definition are due to translation.  Polish version of Art 2.6 strictly
follows the wording of like product definition.
We do appreciate the question because it has drawn our attention to possible difficulties
which may arise while using AD definition of the like product.
Under our interpretation, in the situation described in the second part of the question we
would consider both groups of producers as the dome stic industry. Irrespective of the above, the
second group of producers will always fall under the notion “producers of directly competitiveproducts”.
Q3. In the case of measures taken against countries with which Poland has entered into free
trade agreements (Article 6, paragraph 2, of the Polish law) what measures might Poland apply,
and may those measures exceed tariff rates or other restrictions applicable to other WTOcountries?  Under what conditions might Poland exclude imports from countries with which it
has free trade agreements?
Reply
Under the Polish Law three types of measures, i.e. quantitative restrictions, tariff quota and
the surcharge above a bound (at the bilateral, plurilateral and multilateral level) tariff rate, are
applicable to imports originated in countries-partners to the FTAs and other WTO members.
In accordance with the relevant provisions of FTAs and of the Safeguard Agreement as the
case may be, those measures will be applied on the case by case basis following the relevant WTO
jurisprudence.  This is also Poland’s reply to the last question concerning the exclusion of imports
from countries with which Poland has free trade agreements. In our view the questions put by the
USA raise a number of systemic aspects which are subject of the ongoing systemic debate within
CRTA.
Q4. The definition of “ directly competitive products” in Article 4, paragraph 1(2), of the
Polish law suggests that “like” products would nev er be directly competitive with each other.  Is
this the intent of the Polish law?
Reply
Each “like” product is also directly competitive but not each directly competitive product is “
like” product.  As definitions used in Article 4 were not clear in this aspect, the article is scheduled to
be  amended soon.  The amendment, in line with the above, after the completion  of legislative
process should enter into force on 1 January 2003.
Q5. Articles 16 through 18 of the Polish law set out procedures that the minister “may”
follow in conducting investigations, including with respect to participation by interested parties.
The use of the word “may” in these articles suggests that the minister may choose to
follow other procedures, or provide no opportuni ty at all for interested parties to participate.
Article 3, paragraph 1, of the Safeguards Agreement, sets out certain procedural requirements
and makes them mandatory (it uses the term “shall”).  Please explain how Poland will ensure
that the procedures it follows in its investigation will meet the Safeguards Agreement
requirements in Article 3, paragraph 1.G/SG/Q1/POL/5
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Reply
Article 17 of the Polish Law states clearly that the parties may lodge motions and present
evidence on its own initiative (even without being summoned).  It means that the parties concernedhave an opportunity to be heard, in full accord with Article 3 paragraph 1 of the Safeguards
Agreement.  The same remark refers to Article 18.  In our opinion Article 3 paragraph 1 does not
make “public hearing” obligatory.  It is only one of the procedural means enabling parties to express
their opinions during an investigation.
Q6. What provision will Poland make for prot ection of confidential information?  Does
Polish law include a provision similar to that  in Article 3,paragraph 2, of the Safeguards
Agreement relating to confidential information?
Reply
Protection of confidential information is guaranteed by the Polish  Law of 22 January 1999 on
Protection of Confidential Information (Official Journal of Laws of February 8, 1999).  Apart from
this, a provision concerning protection of confidential information has been added to the Safeguard
Law.  This amendment shall enter into force on 8 November 2002.
Q7. The list of factors in Article 20, paragra ph 2, of the Polish law, to be considered in
determining whether there is a threat of seriou s injury to the domestic industry, does not
include capacity utilization (which is one of the factors listed in Article 4,paragraph 2(a) of the
Safeguards Agreement).  Is there a reason for the omission?
Reply
Capacity utilization shall be added, as a separate factor to those listed in Article 20, under an
amendment which is to enter into force on 1 January 2003.
Q8. Article 21 of the Polish law allows the minister to apply provisional measures when he
preliminarily determines that imports are excessive and that introduction of a measure only
after completion of the investigation would cause or threaten serious injury, which would bedifficult to remedy.  Please explain how this provision is consistent with the requirements of
Article 6 of the Safeguards Agreement, which allows a Member to take a provisional measure in
“ critical circumstances where delay would cause damage which it would be difficult to repair”
and requires a determination that there is “ clea r evidence that increased imports have caused
or are threatening to cause serious injury”.  For example, Article 21 does not refer to “ critical
circumstances” nor does it require a determinatio n that there is “ clear evidence” that increased
imports are causing or threatening serious injury.
Reply
In Article 21 of the Polish law the term “critical circumstances” is not used in the text,  but
instead the Law uses definitional equivalent of this term in the form of the phrase ”where imports of
products covered by investigation proceedings are excessive and introduction of safeguard measures
only after completion of the investigation proceedings  would cause or threaten to cause serious injury
which would be difficult to remedy”.  It is understood that only in such case provisional safeguardmeasure may be applied. In a preliminary determination such facts should be clearly established by
the investigating authority.G/SG/Q1/POL/5
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Q9. Article 28, paragraph 6 of the Polish law provides for a remedy in the form of a “ non -
automatic registration of imports”.  Are such measures applicable only to imports from non-
WTO countries, as suggested by Article 9, paragraph2, of the Polish law?  Please describe in
greater detail what such a registration is and how it would work, and if such measures can be
applied against WTO members, indicate the provision in the Safeguards Agreement thatauthorizes a member to appl y a measure in such form.
Reply
Measures in the form of a “non-automatic registration of imports” are applicable only to
imports from non-WTO countries.  Non-automatic registration of imports is one of the forms of
quantitative restrictions of imports based on obligatory licence system.  Under the system importersmay, if they wish so, apply to the Ministry of Economy for a licence where the minimum and/or
maximum quantity or value of goods for each  licence would be determined.
Q10. Article 34, paragraph 6 of the Polish law sets out the basis for determining whether a
safeguard measure may be extended.  It includes as part of that determination a findingwhether continuation is necessary “ to facilitate adjustments in the domestic industry”.
Article 7, paragraph 2 of the Safeguards Agreement, however, requires, inter alia,” that
there is evidence the industry is adjusting”.  Does the Polish law require the minister to make
such a finding? Please explain how this provision of Polish law is consistent with therequirements of the Safeguards Agreement.
Reply
The wording of Article 34 regarding “the adjustment in the domestic industry” shall be
changed to ensure its consistenc y with the Article 7.2 of the Safeguard Agreement.  The amendment
is due to enter into force on 1 January 2003.
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