WORLD TRADE  
ORGANIZATION  G/SG/Q1/UKR/2 
28 October 2008 
 
 (08-5229) 
Committee on Safeguards Original:   English 
  
 
NOTIFICATION OF LAWS AND REGULATIONS UNDER  
ARTICLE 12.6 OF THE AGREEMENT 
 
Replies to Questions Posed by the UNITED STATES
1 Regarding  
the Notification of UKRAINE2 
 
  The following communication, dated 27 October 2008, is being circulated at the request of the Delegation of Ukraine.  
_______________ 
 
 
Question 1 
  Is the WTO Agreement on Safeguards self-implementing under Ukrainian law?  In 
potential cases of conflict between the Safeguar ds Agreement and Ukraine's recently notified 
Law which legal authority takes precedence?   
 
Reply
 
 
In accordance with the Protocol for Ukrain e's Accession to the World Trade Organization, 
ratified by Law of Ukraine N 250-VI  of 10.0 4.2008, Ukraine has acceded to the Marrakech 
Agreement establishing the World Trade Organization.   
 In accordance with paragraph 4 of Article XVI, Ukra ine has brought its legislation, in particular 
Law of Ukraine "On application of special measures concerning imports in Ukraine", in conformity to 
obligations provided for under WTO Agreements.   
 If an international agreement of Ukraine sets fo rth rules other than those envisaged in the 
relevant legislative act of Ukraine, then the ru les of the international agreement shall apply. 
 
Question 2 
  Please identify the official journal and/ or national newspapers which would publish 
notifications related to safeguard proceedings.  Wo uld these notifications also be made available 
online and if so, please identify the relevant website address(es)?   
                                                     
 
1 G/SG/Q1/UKR/1. 
2 G/SG/N/1/UKR/1.   G/SG/Q1/UKR/2 
Page 2  
 
  Reply
 
 In keeping with Article 12 of the WTO Ag reement on Safeguards, Ukraine submits all 
notifications concerning safeguards to the WTO Secret ariat.  These notifications are displayed on the 
WTO site (www.wto.org
).   
 
All notifications that concern safeguard inves tigations and measures are also published in the 
official gazette of Ukraine's executive gove rnment authorities - "Uriadovy kurier".   
 At the same time all notifications relating to safeguard measures are also displayed in the 
"Foreign economic activity" section of the Minist ry of Economy's web site (http://me.kmu.gov.ua
) 
 
Question 3   Chapter 1, Article 1 (Definitions of Terms), paragraph (4) of the Law notes that an 
"interested party shall be any person notifying th e central body of executive power in the field 
of economic policy (hereinafter referred to as the Mi nistry) of his interest to be involved in a 
special anti-dumping investigation… and who is taking an active part in special investigation…".    
(a) Given that the WTO Agreement on Safeguards is silent on the definition of an 
interested party, could Ukraine please explai n how its definition is intended to comport 
with the WTO Agreement on Safeguards?   
 
(b) Will only those parties registered as interested parties be able to participate in a safeguard investigation, including having access to non-confidential case files?   
 
Reply
 
 The definition of the term "interested party" is  not in conflict with the provisions of the WTO 
Agreement on Safeguards.  Paragraph 4 of Article 1 of the Law contains a clear definition of this term 
and the list of parties that may act as interested part ies in connection with a special investigation.  At 
the same time, both Article 3 of the WTO Agreemen t on Safeguards and Article 9 of the Law provide 
for a possibility of conducting hear ings and other events to enable  interested parties to present 
evidence and comments concerning an investigation. 
 As regards participation in a special investiga tion of parties that have not registered as 
interested parties, Article 9 of the Law, similar to Article 3 of the WTO Agreement, provides that 
other parties may, within the period specified in the notice on initiation of a special investigation, 
present their opinions and provide the Ministry with in formation useful for the special investigation.  
At the same time, the Ministry publishes in the official gazette  information on the facts it has 
established in the course of the special investigation,  and conclusions concerning all factual and legal 
aspects.    Question 4   According to Chapter II, Article 7 (Authorities of the Commission with Regard to Protection of National Producer Against Increased Imports) of the Law, the Commission may 
hold various hearings during the cou rse of a safeguard investigation.   
  (a) Please clarify if these hearings are open to the public per Article 3.1 of the WTO 
Agreement on Safeguards and if so, how part ies would register to participate in such a 
hearing.  G/SG/Q1/UKR/2 
 Page 3 
 
 
  (b) Please also explain what opinions of  the Commission, or summaries thereof, as 
mentioned in Chapter II, Article 7 will be ma de available consistent with Article 3 of 
the WTO Agreement on Safeguards?   
 
Reply  
 
 a) Paragraph 2 of Article 7 of the Law do es not provide for a possibility of conducting 
hearings in the meaning of Article 3.1 of the WTO Agreement on Safeguards.  Article 7 of the 
Law defines the principles fo r Committee's conducting its sittings aimed to make decisions 
that concern safeguard investigations  or application of safeguards.   
 
  We believe that this question is caused by  inaccurate English translation of the word 
"засідання " (sitting). 
  b) all notifications on relevant decisions  passed by the Committee are published in the 
official gazette and are displayed on the Ministry of Economy's web site. 
 
Question 5   Chapter III, Article 8 (General Provisions for Execution of Special Investigation) paragraph (2) of the Law states that the period of investigation will normally be 1 to 3 years.  
Presumably this would be the period for which the investigative agency would gather data on 
imports and the domestic industry for purposes of determining whether imports are in such 
increased quantities as to cause or threaten to cau se serious injury to a domestic industry.  If 
this is the case, please explain how the investigat ive agency would decide whether to use 1, 2, or 
3 years as the period in a given investigation.  Please also indicate wh ether Ukraine would use 
the same period for determining whether imports of the subject good are increasing as it would 
for determining whether a domestic industry is  seriously injured or threatened with serious 
injury.  Please explain how a relatively short period of 1 or 2 years would provide a basis for finding that imports are in fact  increasing and that they are ca using or threatening to cause 
serious injury.   
 Reply
 
 The said provision of Ukrainian legislation is not in conflict with the WTO provisions that 
concern special safeguards.  For purposes of determin ation of the surge in import and of the injury 
caused to national producers, the same period shall be used.  Paragraph 12 of Article 1 of the Law 
provides that period of investigation is a period for which the Ministry examines the dynamics of the 
growth of the volume of imports of the product whic h is the object of the investigation, as well as 
production, trade and financial state of national pr oducers.  In practice, Ukraine follows the rule 
establishing a 3-year period of investigation. 
 
Question 6 
 
 Chapter III, Article 11 (Application of Provi sional Safeguard Measures), paragraph (6) 
of the Law states "The decisions of the Commission mentioned in part five of this Article may
 
[emphasis added] stipulate a refund to an importer of a paid special duty".  Additionally, the paragraph states that "If an importer fails to provide all relevant documents relating to refund 
of the paid amounts of a special duty within the time-limits specified in this part such amounts 
shall be not refunded".  Please explain how this  is consistent with Article 6 of the WTO 
Agreement on Safeguards which notes that provisional duties paid shall
 be promptly refunded 
if the safeguard investigation does not determine th at imports cause or threaten to cause serious 
injury to a domestic industry.   G/SG/Q1/UKR/2 
Page 4  
 
  Reply
 
 
Paragraph 1 of section 6 of Article 11 provides for a possibility of refunding the paid amounts 
of the special duty to the importer.  Other provisi ons of section 6 of Article 11 concern the mechanism 
for refunding the specified amounts.  Question 7   Chapter IV, Article 14 (Procedure of Application of Surveillance Measures Against Imports to Ukraine) and Article 15 (Surveilla nce and Regional Surveillance Regimes of the 
Imports to Ukraine) of the Law provide for surveillance measures and regimes, including on a 
regional basis.  Please explain how such meas ures and regimes would work, including whether 
they would be applied in conjunction with a safeguard measure or ap art from one.  In 
particular, please explain what is meant by th e term "surveillance measures against imports to 
Ukraine" in Article 15, paragraph 1, including the types of measures that may be applied.  
Please also explain what is meant by the term "a ppropriate permission to imports issued by the 
Ministry", also in that paragraph.  Please id entify the provisions in Article XIX of GATT 1994 
and the WTO Safeguards Agreement that wo uld authorize Ukraine to implement such 
surveillance measures and regimes.  In addition, please explain how a regional
 surveillance 
regime would work, including how a measure might apply in one part of Ukraine but not another, and how such a regional regime would be consistent with Article XIX and the WTO 
Safeguards Agreement.   
 
Reply
 
 
Articles 14 and 15 of the Law in  no way contradict Article ХІХ GATT 1994 and WTO 
Agreement on Safeguards.  Regimes of supervision (including regiona l supervision) over imports to 
Ukraine do not constitute a kind of restrictive me asures, but only a mechanism which is used for 
purposes of investigation and which helps examine th e situation concerning imports, both in the entire 
territory of Ukraine and in its particular regions.   
 
Question 8 
 
 Chapter V, Article 16 (Applicatio n of Safeguard Measures) of the Law describes the 
types of safeguard measures that Ukraine may a pply, including import quotas, and appears to 
require (Article 16, paragraph 4) that all entri es under a quota be pursuant to a special license 
issued by the Ministry.  Assuming this is th e case, how does Ukraine propose to administer a 
licensing system?  For example, will Ukraine sell quota shares to the highest bidder?  Does 
Ukraine plan to allocate quota shares to specific historical suppliers and then sell or allocate 
licenses for those respective shares only to exporters in the particular country?   
 
Reply  
 
Provisions of Article 16 of the Law are consis tent with requirements of the WTO Agreement 
on safeguard.  In particular, Article 16 also allows  application of special measures depending on the 
results of the special investigation by way of intr oduction of the import quota regime.  The level of the 
quota may not be lower than the average arithmetic value of the import of the product subject to the 
special investigation, carried out in the last three re presentative years for which statistics are available.  
If a quota is allocated among exporting countries, such  an allocation may be c oordinated with them.  
If no such coordination has taken place, the quota shall be allocated among the exporting countries in 
proportion to their shares of imports in Ukraine of the product subject to the special investigation, in the previous representative period.  Quotation of imports of products which are subject to special 
measures, shall be carried out by way of the Ministry 's issuance of special licenses.  The procedure for  G/SG/Q1/UKR/2 
 Page 5 
 
 
  license issuance is regulated by Order of the Minist ry of economy and for European integration issues 
of Ukraine of 01.08.02 # 232 "On procedure for licensing Ukraine's imports of goods subject to application of special measures".    
Question 9 
 
 Chapter V, Article 16 (Application of Safeguard Measures), paragraph (9) of the Law 
states "The safeguard measures may be applie d to the imports under special investigation 
throughout the whole territory of Ukraine or in one of several regions of Ukraine".  However, 
the WTO Agreement on Safeguards does not make  provision for a regional application of a 
safeguard measure, except in the case of a customs union per Article 2, footnote 1.  Can Ukraine 
please clarify how the above provision is consiste nt with the WTO Agreement on Safeguards?   
 
Reply
 
 
Article 16 of the Law provides for a possibility of application of safeguards in particular 
regions of Ukraine under clearly specified cond itions.  The WTO Agreement on Safeguards does not 
contain prohibitions for application of safeguards in a country's regions.  
Question 10 
 
 Chapter V, Article 20, (Peculiarities in Application of Safeguard Measures) of the Law 
discusses the re-imposition of a safeguard measure on a product which was previously subject to a safeguard measure.  Could Ukraine please clarify if a new investigation must be undertaken following the termination or lapsing of a safe guard measure prior to the re-imposition of a 
safeguard measure?   
 Reply
 
 
 The procedure for repeat application of safeguards specified in Article 20 of the Law of Ukraine conforms to the procedure specified in Article 7 of the WTO Agreement on Safeguards.  
However, the Law of Ukraine limits the period for repeat application of safeguards to 180 days. 
 Question 11   Article 20, paragraph (2) of the Law, states that "Safeguard measures may be applied 
again to the import of product (products) to Ukraine for the period of up to 180 days".  It is not 
clear how this is consistent with Article 7 of the WTO Agreement on Safeguards.  Could 
Ukraine please clarify how the imposition of a sa feguard for up to 180 days is consistent with 
the WTO Agreement on Safeguards, particularly Article 7.6?    
Reply
 
 
 See reply to question 10. 
 
__________