WORLD TRADE  
ORGANIZATION   
G/SG/W/221 
8 November 2011 
 (11-5719) 
Committee on Safeguards Original:   English 
  
 
STATEMENT BY THE DELEGATION OF INDIA 
 
(Regarding request under Article 13.1 (b) of the  
Agreement on Safeguards) 
 
 
 The following statement was made by the dele gation of India at the meeting held on 
27 October 2011 under agenda item E – Request  under Article 13.1 (b) of the Agreement on 
Safeguards.    
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  We are of the view that Turkey's continua tion of safeguard measures on cotton yarn raises 
serious issues of proper implementation of the provisions of the Agreement on Safeguards as 
procedural requirements of the Agreement have not been complied with.  Some of the procedural 
lapses have already been explained in our request  under Article 13.1 circul ated vide document no 
G/L/961-G/SG/95 dated 29 September 2011.     The safeguard measure on cotton yarn was impo sed by Turkey with effect from 15 July 2008 
for a period of three years.  The notification dated 23 June 2011 made by Turkey to the WTO 
contained in WTO document (G/SG/N/6/TUR/14/Suppl.1  dated 24 June 2011) mentions that Turkey 
informed regarding:    (a) Initiation of investigation for extension of measure under Article 12.1 (a),  
(b) Imposition of provisional meas ure under Article 6, and  
(c) Notification under Article 9 footnote 2 regardi ng exclusion of certain developing countries 
from the imposition of safeguard measures.   
 Earlier on this issue, India ha d consultations with Turkey in Ankara on 18.08.2011.  During 
the consultations, we were informed that provi sional measures have b een imposed on 4 August 2011 
with retrospective effect.  It may be noted th at the original measures had expired by then.  
 
 We thank Turkey for the opportunity for the c onsultations, however we regret that most of 
our concerns have not been addressed.  During the consultations, we had asked Turkey 20 questions, 
majority of which were not answered and theref ore we had to raise them in this Committee.  
Unfortunately, the same were not answered even toda y.  Had the questions been answered, we could 
have focused more on specific points and with much more clarity.   
 
 Chair, we believe that the measures taken by Turkey are inconsistent with its obligations 
under the Agreement on Safeguards on various grounds.  I will make a total of nine points in the 
intervention, which are without prejudice to each other.   G/SG/W/221 
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  1. Though Turkey initiated a review  investigation before the expiry of the measures, it did not 
make any determination for extending the measures be fore such expiry and allowed the measures to 
lapse on 14 July 2011.  Once a measure has lapsed, its period  cannot be extended under Article 7.  In terms of Article 7.1, safeguard measures may be a pplied only for such period of time as may be 
necessary to prevent or remedy serious injury and to facilitate adjustment.  The period mentioned in 
Article 7.1 may be 'extended' in terms of Article 7.2.   The text of Article 7.2 uses the word 'extended' 
and it does not use the word 'revived '.  The word 'extend' refers to  'continuation'.  The period of time 
of levy of a measure may be continued or extende d only when the measure is in force.  Once the 
measure has lapsed, it has to be revived and cannot  be extended.  The review contemplated under 
Article 7 of the AoS cannot lead to imposition of a new measure but merely a continuation in time of 
the existing definitive safeguard measu res.  Therefore, if the duties are not extended before the expiry 
of the existing safeguard measures, it would not am ount to 'continuation' of the existing measures as 
there are no measures in existence that need to be continued.  In this case, Turkey did not extend the 
measures when they were in force.  Accordingly, a ny extension given after the expiry of the duty is in 
violation of Article 7.2 of AoS.  
 
2. If the duties are not extended before the e xpiry of the existing safeguard measures, any 
extension thereof from the date of expiry of orig inal measures would lead to a retroactive levy or 
retroactive extension.  Article 7.2 does not perm it extension of safeguard measure on a retroactive 
basis.  Therefore, safeguard measure cannot be exte nded in the garb of a provisional measure applied 
retroactively.  
 
3. Turkey has not made any determination pursu ant to Article 7.2 of AoS before extending the 
expired measures.  In India's views, as Turkey initiated a review to extend the safeguard measures 
beyond 3 years, it is under obligation as per provision  of Article 7.2 of the Agreement on Safeguards 
to make a determination, in conformity with the procedures set out in Articles 2, 3, 4 and 5 that 
safeguard measure continues to be necessary to pr event or remedy serious injury to its domestic 
industry and that there is evidence that the industry is adjusting.  To date Turkey has not made a 
determination as required under Artic le 7.2 of Agreement on Safeguards and therefore Turkey cannot 
extend the safeguard measures on cotton yarn.  4. No provisional measure pursuant to Article 6 of AoS is provided for in a review investigation.  
In the extension of an existing safeguard measure , the question of imposition of provisional measures 
does not arise.  The total period of application of safeguard measures according to Article 7.3, 
includes the period of application of provisional measure, period of initial application and any 
extension thereof.  It is evident that the provisiona l measure is applied first, initial application follows 
the provisional measure and thereafter, only extension of the initial application is provided for.  The 
sequence in which the Article is arranged gives a clear indication that a situation of applying 
provisional measures while considering extension of definitive measures is not contemplated at all 
under the Agreement on Safeguards.  Thus, Provi sional measure in the form of preliminary 
determination can only occur in the original investiga tion and not in a review exercise.  In view of the 
above, India considers that levy of provisional me asures in a review pursuant to Article 7 is 
inconsistent with Turkey's  obligations under the AoS.  
 
5. While proposing provisional measures, Turkey observed that 'bearing in mind that the sudden 
and significant increase in the imports of the produc t concerned in 2010 could negatively affect the 
recovery period of the domestic industry, the provi sional safeguard measure is proposed to eliminate 
uncertainty that could come out with the ongoing i nvestigation on the necessity of the extension of the 
current measure'.  In this regard, it may be noted  that provisional safeguard measures are authorized 
under Article 6 of AOS which identifies the conditi ons precedent that need to exist prior to the 
imposition of provisional safeguard measures i.e. in critical circumstances where delay would cause 
damage which it would be difficult to repair.  The re ason cited by Turkey i.e. to eliminate uncertainty  G/SG/W/221 
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  that could come out with the ongoing investiga tion is not a valid reason for levy of provisional 
measures under Article 6.    6. As per the documents made available to us so far, Turkey did not make any preliminary 
determination pursuant to Article 6  before imposing the provisional measures.  Article 6 of AoS 
provides that a Member may take a provisional safeguard measure pursuant to a preliminary 
determination that there is clear evidence that in creased imports have caused or are threatening to 
cause serious injury.  India understands that Turkey did not make any such preliminary determination 
at all in this ongoing review.  Turkey only undert ook a preliminary investigation regarding the need to 
initiate a review.  After initiating the review, Turkey  did not make a preliminary determination that 
there is a need to put in place provisional safeguard measure.  The present measures are therefore, 
without even a preliminary determination.  However,  today Turkey has apparently clarified that they 
have made some preliminary determination.  We w ill request for a copy of the same to clarify this 
issue.   
7. India understands that Turkey has applie d the provisional measures on 4 August 2011 but 
with effect from 15 July 2011 – the date on which the then existing measures lapsed.  Thus, Turkey 
has applied the provisional measures retroactively from 15 July 2011.  There is nothing in the text of Article 6 of AoS that permits retroactive levy of provisional measures.  
 
8. A measure cannot be applied again before expiry of the cooling off period provided for 
under Article 7.5.As noted earlier the original safeguard measure on cotton yarn expired on 
15 July 2011.  If the measures are put in place with  effect from 4 August 2011, it would amount to a 
new measure or at the least, it would amount to 'applyi ng the measure again'.  In terms of Article 7.5, 
safeguard measures cannot be applied again to the same product for a period of time equal to that 
during which the measure had been previously applied subject to a minimum of 2 years.  In the light 
of the fact that the definitive safeguard measures imposed at the end of the original investigation 
expired on 15 July 2011, imposition of any measure after that would amount to a fresh levy on the 
same product.  This would be in violation of Artic le 7.5 since the original measure had been applied 
for 3 years in the past and therefore no measure can be imposed before the expiry of the minimum 
cooling off period.   
 
9. Further, the ongoing review should be terminat ed as time barred. Since the measures have 
already expired, ongoing review will lead to a de termination only long after the expiry of the 
measures.  Such a determination may lead to either  a retroactive levy or levying measure again on the 
same product.  Neither Article 7. 2 permits a retroactive levy nor does Article 7.5 permit levying a 
measure again on the same product before expiry of the minimum cooling off period of 2 years.  In 
such a situation, the determination, if any, made at the end of the review to put in place any measure 
will be inconsistent with Turkey's obligations un der AoS.  A decision to extend the duration of the 
then existing measures should have been taken before  the expiry of those measures.  As Turkey has 
failed to make any such determination before the expiry of the measures, the investigation is time 
barred and no purpose would be served by  continuing the investigation.   
 
 There are other substantive issues also which we had raised during consultation with Turkey 
and we reserve the right to come up with them at a later stage.  We have focused only on the 
procedural issues keeping in mind the character of  Article 13.1(b) request.  However, the above 
arguments are sufficient to prove th at there has been a grave violation of the procedural requirements 
of the Agreement on Safeguards in this case.  India hopes that this esteemed Committee would 
examine all the issues in an objective and unbiased ma nner and arrive at a fair decision and report its 
finding to the Committee on Trade in Goods as per th e provisions of Article 13.1(b).  We will request 
a prompt action so as not to render the provisions of Article 13.1 (b) ineffective keeping in view that 
the safeguards measures are continuing in violatio n of the Agreement and distorting the underlying G/SG/W/221 
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  trade.  We also request Turkey to dismantle the measures immediately as these are in clear violation 
of their obligations under the Safeguards Agreement.     
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