G/SG/Q2/UKR/5  
 
6 April 2018  
(18-2103) Page: 1/2 
Committee on Safeguards  Original: English  
 
NOTIFICATION S UNDER ARTICLE 12  OF THE  
AGREEMENT ON SAFEGUA RDS  
QUESTIONS POSED BY THE EUROPEAN UNION  REGARDING  
THE NOTIFICATION S OF UKRAINE  
(Flexible porous plates, blocks and sheets of polyurethane foams ) 
The following communication, dated 5 April 2018 , is being ci rculated at the request of the 
Delegation of the European Union . 
 
_______________  
 
 
The European Union thanks Ukraine for its notifications regarding the investigation on flexible 
porous plates, blocks and sheets of polyurethane foam, under Art icle 12.1, (a)1 (b) and (c)2 and 
Article 9, footnote 23 of the WTO Agreement on Safeguards ( "WTO SG Agreement ").  
 
The decision to impose safeguard measures in this case has been challenged before the Ukrainian 
courts i.e. the first instance court and the court of appeal, which concluded the following4:  
 
"Assessing the Claimant 's arguments that the challenged legal relations should be subject to the 
GATT and the Agreement on Safeguards (SG Agreement) provisions, the panel of judges notes the 
following:  
 
In this case, when the disputed decision was made, these were the special measures defined by 
Art. 16 of the Law of Ukraine on Application of Special Measures to Import to Ukraine (SM Law) 
that were applied. Such special measures are not considered to be s afeguard measures in 
accordance with the SG Agreement definitions5.  
 
This conclusion that the special measures are not considered to be safeguard measures (as 
established by the SG Agreement) is confirmed by Art. 2(2) of the SM Law which sets that such 
Law excludes application of other measures envisaged by the legislative acts, Ukraine 's 
international agreements ratified by Parliament under the GATT and the WTO together with the 
special measures.  
 
Thus, the Appellant 's reference both to the GATT and the SG Agreement is ungrounded and 
erroneous, since such acts do not govern application of special measures established by the Law.  
 
Thus, the panel of judges agrees with the conclusion made by the trial court that the Defendants 
were acting in accordance wit h the law when making the challenged decision, within their powers 
and in defence of the national interests, in view of which there are no grounds for its cancellation. "  
 
                                                
1 G/SG/N/6/UKR/11.  
2 G/SG/N/8/UKR/5 -G/SG/N/10/UKR/5 -G/SG/N/11/UKR/3;  G/SG/N/8/UKR/5/Corr.1 -
G/SG/N/10/UKR/5/Corr.1 -G/SG/N/11/UKR/3/Corr.1.  
3 G/SG/N/11/UKR /3/Suppl.1.   
4 Decision of Kyiv Administrative Court of Appeal (appeal instance) available at: 
http://www.reyestr.court.gov.ua/Review/67033582 ; Resolution of District Administrative Court of Kyiv (first 
instance) available at: http://www.reyestr.court.gov.ua/Review/65966677  
5 Emphasis added.  G/SG/Q2/UKR/5  
 
- 2 - 
 
  In sum, the judges concluded that the measures in question were not considered to be  a 
WTO safeguard measure, and the Ukrainian Law would exclude the application of such measures.  
In this context, the European Union has the following questions:  
 
Question 1  
 
Can the Ukrainian authorities please clarify whether and why the special measures laid under the 
Ukrainian law and notified under the WTO SFG agreement are not considered by the Ukrainian 
Court as safeguard measures?  
 
Question 2  
 
Does the Ukrainian law "On application of safeguard measures against imports to Ukraine ", of 
22 December 1998, no.332 -XIV ensure the implementation of the WTO Agreement?  
 
Question 3  
 
Do the Ukrainian authorities confirm that Article 2(2) of the Ukrainian Law excludes  the applicat ion 
of other measures along with the safeguard measures? ( Note that the wording quoted by the 
judgement does not coincide with the wording of the same Article as notified to the WTO .)  
 
Question 4  
 
To the extent that the Ukrainian authorities confirm that the measure in question is a safeguard 
measure under the WTO SG Agreement and that the Ukrainian domestic law does not exclude the 
application of such measures the European Union has the following questions what steps do the 
Ukrainian Investigating authori ty intend to take: (a) regarding the court case related to the 
polyurethane foam case SFG measures?; and (b) regarding the Safeguard measures imposed 
against imports of flexible porous plates, blocks and sheets of polyurethane foams themselves?  
 
 
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