Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

implementing the safeguard clauses and other mechanisms allowing for the temporary withdrawal of
preferences in certain agreements concluded between the European Union and certain third
countries

EXPLANATORY MEMORANDUM

1. CONTEXT OF THE PROPOSAL

 Reasons and objectives of the proposal
The proposal concerns the incorporation into European Union low i) of the safeguard clauses and
ii) any special mechanisms for withdrawal of tariffs preferences or other preferential treatments
requiring an implementing regulation foreseen in future trade agreement concluded by the EU.
The regulation for the moment foresees the implementation of the EU-Singapore Free Trade
Agreement (FTA), the EU-Vietnam FTA and the EU-Japan FTA. It is also proposed that future
agreements would be added to the scope of the regulation by delegated acts.

 Consistency with existing policy provisions in the policy area

The majority of the EU trade agreements include a bilateral safeguard clause. This clause provides
for the possibility to spend the further tariff liberation or to re-instate the Most Favored Nation
customs duty rate when, as a result of trade liberation, imports take place in such increased
quantities and under such conditions as to cause (or threaten to cause) serious injury to the domestic
producers producing the like or directly competitive product. In addition, some EU trade
agreements may include special mechanisms which also confer the possibility to reintroduce the
MFN customs duty rate.
In order for these measures to be operational, this bilateral safeguard clause and any special
mechanism should be incorporated in European Union law, and the procedural aspects of their
application as well as the rights of interested parties need to be specified.
So far, it has been a consistent practice that the Commission proposed an implementing regulation
in conjunction with each separate recent trade agreement.
Based on past experience and existing regulations, it is suggested that the whole process could be
simplified by proposing a horizontal bilateral safeguard regulation which could be used for all
future FTAs. The body of the text of the regulation would focus on the procedural details and
common technical of the bilateral safeguard instrument (conduct of investigations, procedures for
provisional and definitive measures, etc.). A separate chapter would set the procedural rules
concerning special mechanisms. An Annex would reflect the applicability of the regulation for a
specific FTA partner in question as well as any specificities of the trade agreement in question.
The Annexes containing the few elements that are specific to each individual agreement would be
amended via delegated acts. The delegated acts would be implementing the trade agreements that
are already approved by the European Parliament and the Council and would thus provide the
Commission with very limited political choice.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

 Legal basis
The attached proposal for a Regulation of the European Parliament and of the Council constitutes
the legal instrument for the implementation of the safeguard clauses and any special mechanisms of
the EU Trade Agreement.
Article 207, paragraph 2 of the Treaty on the Functioning of the European Union.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS

AND IMPACT ASSESSMENTS
 Ex-post evaluations/fitness checks of existing legislation
This proposal for a Regulation is directly derived from the texts of the Agreements negotiated with
various other countries such as, Colombia, Peru, Central American countries, the Republic of
Moldova and Georgia. Consequently, neither a separate consultation with interested parties nor any
impact assessment is necessary. It is largely based on existing implementing regulations.

4. BUDGETARY IMPACT
4. OTHER ELEMENTS

An annual report will be provided to the Council and EP sitting out trade statistics with the relevant
FTA partner and information on the application of this regulation.

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

implementing the safeguard clauses and other mechanisms allowing for the temporary
withdrawal of preferences in certain agreements concluded between the European Union and
certain third countries

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article
207, paragraph 2,
Thereof having to the proposal form the European Commission,
After transmission of the draft legislative act to the national parliaments,
Acting in accordance with the ordinary legislative procedure,

Whereas:
1. The Union regularly concludes trade agreements (‘Agreements’) with third countries which
may include bilateral safeguard clauses. It is necessary to lay down the procedures to guarantee
the effective application of the safeguard clauses that will have been agreed with the countries
concerned.
2. The Agreements may also include other mechanisms for temporary withdrawal of other
preferential treatment. It is also necessary to lay down the procedures for the application of such
mechanisms, where included in the Agreements.
3. Bilateral safeguard measures may be considered only where the product in question is
imported into the Union in such increased quantities, in absolute terms or relative to Union
production, and under such conditions as to cause, or threaten to cause, serious injury to Union
producers of like or directly competing products. Bilateral safeguard measures should like one
of the forms referred to in the Agreement.
4. The follow-up and review of the Agreements, the conduct of investigating and, where
appropriate, the imposition of safeguard measures should be carried out transparently.
5. Member States should inform the Commission, of any trends in imports which might call
the application of safeguard measures.
6. The reliability of statistics of all imports from the countries concerned to the Union in
therefore crucial when determining whether the conditions to apply safeguard measures are met.
7. Careful monitoring of sensitive products, if any, should facilitate a timely decision
concerning the possible initiation of an investigation and subsequent application of measures.
Therefore, the Commission should regularly monitor imports of sensitive products, if any, from
the date of provisional application or entry into force of the Agreement, if there is no
provisional application. Monitoring should be extended to other sectors upon a duly justified
request mad by the relevant industry.
8. It is also necessary to set time limits for the initiation of an investigation and for decisions
on whether to take safeguard measures are appropriate, with a view to ensuring that such
decisions are made quickly, in order to increase legal certainly for the economic operators
concerned.
9. The application of safeguard measures should be preceded by an investigation, without
prejudice to the possibility for the Commission to apply provisional safeguard measures in
critical circumstances
10. Safeguard measures should be applied only to the limits, and for such time, as may be
necessary to prevent serious injury and to facilitate adjustment. The maximum duration of
safeguard measures should be determined and specific provisions regarding extension and
review of such measures should be laid down.
11. The Commission should enter into consultations with the countries concerned by the
measures if the specific arrangements so require.
12. In order to add an agreement to the Annex or to remove it from the Annex, to add provisions
setting out specific rules contained in an agreement to the Annex or to add products identified as
'sensitive' to the Annex, the Annex should be amended. In order to amend the Annex to this
 Regulation, the power to adopt acts in accordance with Article 290 of the Treaty should be
delegated to the Commission.
13. It is of particular importance that the Commission carries out appropriate consultations
during its preparatory work, including at expert level. The Commission, when preparing and
drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of
relevant documents to the European Parliament and Council.
14. The implementation of the safeguard clauses or other mechanisms and criteria for the
temporary suspension of tariff or other preferences provided for in the Agreements require
uniform conditions for the adoption of provisional and definitive safeguard measures, for the
imposition of prior surveillance measures, for the termination of an investigation without
measures and for suspending temporarily the preferential tariffs or other preferential treatment.
15. In order to ensure uniform conditions for the implementation of this Regulation,
implementing powers should be conferred on the Commission. Those powers should also be
exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of
the Council. 
16. The advisory procedure should be used for the adoption of surveillance and provisional
safeguard measures, due to their effects and their sequential nature in relation to the adoption of
definitive safeguard measures. The examination procedure should be applied to the imposition
of definitive safeguard measures and for any review of such measures.
17. The Commission should adopt immediately applicable implementing acts where, in duly
justified cases, a delay in the imposition of provisional safeguard measures would cause damage
which would be difficult to repair or in order to prevent a negative impact on the Union market
arising from increased imports, where imperative grounds of urgency so require.
18. The Commission should submit an annual report to the European Parliament and the
Council on the implementation of the Agreements in the Annex to this Regulation and the
application of the safeguard measures.