RESTRICTEDWORLD TRADE
ORGANIZATIONG/C/W/313
10 October 2001
(01-4908)
Council for Trade in Goods Original:  English
STATEMENT BY THE POLISH DELEGATION CONCERNING
SUSPENSIONS OF CONCESSIONS AGAINST SLOVAKIA
UNDER ARTICLE 8.2 OF THE SAFEGUARDS AGREEMENT
The following statement made on 5 October 2001, has been received from the Permanent
Mission of Poland.
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First of all the Polish delegation would like to confirm that the suspensions of concessions in
the form of quantitative restrictions on imports of butter and margarine originating in  Slovakia have
entered into force as from 1 August 2001. The measure was imposed following the safeguard measureimposed by Slovakia on imports of sugar originating among other in Poland. The measure is in the
form and of the level for the year 2001 as stated in the Polish notification to the Council for Trade in
Goods from 27 June (G/L/453). It is our intention to keep the measure in force as long as the
safeguard measure implemented by Slovakia on imports of sugar remains in force and the level of the
quota shall be calculated (and liberalised) for each year so that its level remained equivalent to thelevel of restrictions imposed by Slovakia which are also liberalised every year.
It is Poland's view that the suspension of c oncessions was applied in conformity with the
article 8.2 of the SG Agreement as all the necessa ry preconditions for such action were met  i.e.:
- there was no agreement between the both parties on trade compensations for Poland for the
adverse affect on trade resulting form the safeguard measure imposed by Slovakia,
- the suspension took place not later than 90 days after the safeguard measure was applied,
- the suspension took place upon the expiration of 30 days from the written notice received by
the CTG,
- the CTG did not disapprove the measure after the notification of intention to apply it, and
before the actual entry into force.
With relation to the article 8.3 of the SG Agreement Poland maintains its position expressed
on the CTG meeting of 31 July that this article is not applicable here as one of the two conditions of
its applications was not met by Slovakia while imposing a safeguard measure on imports of sugar.
Namely, the measure imposed did not conform to the provisions of the Safeguard Agreement.
Poland noted doubts expressed by Slovakia as to the unilateral kind of decision taken in this
regard and Poland agrees that a final decision as to the conformity or non-conformity of the safeguard
measure applied by Slovakia with the WTO rules should be taken by the relevant WTO bodies. That
is why following the imposition of the suspension in question Poland initiated also WTO dispute
settlement procedure with a view to receive a panel’s decision on the matter. However, we would likeG/C/W/313
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to draw the CTG attention to the fact that article 8.2 of the Safeguard Agreement is very clear as to
timeframe within which the suspension of concessions must be applied, i.e. not later than 90 days
after entry into force of the original safeguard measure. In our view, it is impossible within the current
DSU procedures to receive the decision of the WTO panel as to the conformity with the SG
Agreement of the safeguard measure within 3 months after its imposition. Under these circumstances,Poland had two options:
- to initiate a dispute based on the DSU and, in case of winning the dispute, try to suspend the
concessions in question in clear violation of the time limits provided for in the Article 8.2, or
- to proceed with the case the way it did.
None of the options was free of some inherent difficulties.Articles 8.2 and 8.3 of the Safeguard Agreement seem to be internally inconsistent. On the
one hand in order to apply the Article 8.2 under circumstances provided for in Article 8.3 one has to
evaluate the conformity with the SG Agreement of the action taken by the Member imposing
safeguard measure. On the other hand, such unilateral evaluation by the Member affected by themeasure seems to be inconsistent with requirement of the DSU to refer the matter to the DSB for the
settlement of the dispute.
The Articles 8.2 and 8.3 must be construed with a view to respect the assumption of
rationality of the parties to the agreement, which means that, on the one hand, an interpretation whichremoves any alleged inconsistency should be sought for and, on the other hand, the interpretation
leading to such inconsistency should be rejected. Taking into account the above the Article 8.3 should
be construed in such way as to ensure its  conformity with the Article 8.2, which means that the
Member affected by the safeguard measure should decide whether a violation of the SG Agreement
has occurred. If the Member imposing the contes ted measure does not agree with the evaluation, it
may request the establishment of a panel in order to settle the dispute. If the panel decides  that the
violation of the Agreement has not occurred, the suspension of concessions introduced under Article
8.2 should be withdrawn. Under this interpretation, both Articles 8.2 and  8.3 can be applied and the
assumption of rationality is fully respected.
Having explained our approach, we would like to emphasise that Poland was ready to
withdraw the measure in question (or rather delay its application for 3 years, as stated in art 8.3 of the
SG Agreement) had the Slovak side convinced us during the consultations under article 4 of the DSU
that its safeguard measure has been  imposed in full  conformity with the SG Agreement. However,
although as a result of this consultations Poland is inclined to withdraw some of its complaints, some
other, not less important, still remain and we are still of the view that Slovakia violated the SG
Agreement while imposing the safeguard measure on imports of sugar. Of course, if a WTO paneldecides that the Slovak safeguard measure has not violated the SG Agreement, Poland will withdraw
the measure in question. Independently of the steps, if any, taken by Slovakia, Poland is ready to seek
a resolution of the dispute within the DSU framework.
We would like to stress however that the main aim of a very likely continuation by Poland of
the DSU procedure in the sugar case is not just to obtain the ground for applying our suspension of
concessions but it is to eliminate the safeguard measure imposed by Slovakia on the imports of sugar.
It is our view that solving the dispute through the elimination of trade barriers conforms to the WTO
spirit more than multiplying those barriers by application of further restrictions. With this aim in view,
Poland sought, even during the DSU consultations, to negotiate an agreement on trade compensationsprovided for in the Article 8.1 of the SG Agr eement, which would certainly solve the matter of
suspension of concessions under current dispute. Unfortunately this possibility was excluded by the
Slovak side.G/C/W/313
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That would conclude the explanations of the Polish side.  We would add only that in the light
of our position expressed above, Poland does not see the possibility to join any consensus in the CTG
as to the disapproval of the suspension of concessions in question.
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