  
  
G/L/1388  
G/SG/255  
21 May 2021 
(21-4274) Page: 1/2 
Council for Trade in Goods  
Committee on Safeguards  Original:  Spanish  
 
  
REQUEST BY THE REPUBLIC OF ECUADOR UNDER  ARTICLE 13.1( B) 
OF THE AGREEMENT ON SAFEGUARDS   
REQUEST BY THE REPUBLIC OF  ECUADOR CONCERNING  THE FAILURE  
BY THE REPUBLIC OF UKRAINE TO COMPLY WITH  THE PROCEDURAL  
REQUIREMENTS  ESTABLISHED IN ARTICLES 3 AND 12  
OF THE AGREEMENT ON SAFEGUARDS  
ECUADOR  
The following communication, dated and received on 19 May 2021, is being circulated at the request 
of the delegation of Ecuador.  
 
_______________  
 
 
In accordance with Article 13.1(b) of the Agreement on Safeguards, the Republic of Ecuador requests 
the Committee on Safeguards to analyse and rule on the failure by the Republic of  Ukraine to  comply 
with the procedural requirements established in Articles  3 and 12 of the Agreement on Safeguards, 
and to report its conclusions to the Council for Trade in Goods. This failure to comply by Ukraine 
specifically concerns : the lack and inaccuracy of information submitted in the investigation; the 
failure to publis h non -confidential summaries of the information submitted by the applicants; and 
the failure to conduct prior consultations as part of the process to establish the definitive safeguard 
for the goods classified under tariff subheading 0603.11.00, which was imposed on 16 April 2021 
and notified to the World Trade Organization on 27 April 2021 , according to  document 
G/SG/N/10/UKR/10/Suppl.1  - G/SG/N/11/UKR/8/Suppl.1 of 27 April 2021.  
The basis for this request is as follows:  
I. FACTS  
1. On 12 June 2020, Ukraine notified the WTO Committee on Safeguards that, on 28  May 2020, 
it had initiated a safeguard investigation on fresh cut roses, classified under the tariff 
subheading 0603.11.00, which was carried out regardless  of the country of origin and 
exportati on. 
2. During the investigation process, Ukraine did not provide the interested parties with a report 
setting forth the findings and reasoned conclusions  on all the issues of fact and law for the 
adoption of  the safeguard  measure . It also failed to provide public summaries of confident ial 
information submitted by the applicants and, lastly, it did not initiate consultations with 
Ecuador regarding the process on the imposition of the safeguard.  
3. On 16 April 2021, the Ukrainian Interdepartmental Commission on International Trade 
adopted Decision No. SP-487/2021/4411 -03, by means of which it applied a safeguard 
measure for the importation into Ukraine of fresh cut roses, regardless of the country of  origin 
and exportation, for a three -year period, in the form of a special duty of 56%.  G/L/1388 • G/SG/255  
- 2 - 
  4. On 27 April 2021, Ukraine notified the WTO of the decisi on to apply a safeguard measure for 
imports of fresh cut roses. This notification is contained in document 
G/SG/ N/10/UKR/10/Suppl.1  - G/SG/N/11/UKR/8/Suppl.1.  
II. COMPLIANCE WITH PROCEDURAL REQUIREMENTS  
5. Ecuador considers that the failure to publish a report supporting the final determination for 
the adoption of the measure, in addition to the failure to publish non -confidential summaries 
of the information submitted by the applicants, constitute s a violation of the procedure 
established in Article 3 of the Agreement on Safeguards. As indicated by the Appellate  Body 
in US - Lamb , a report published in the context of Article 3.1 must provide reasoned 
conclusions on all pertinent issues of fact and law . 
6. In US – Wheat Gluten , the Appellate Body referred to Article 3.1 as  part of the context for the 
interpretation of the requirement in cluded in Article 4.2(a) to assess "all relevant factors". The 
Appellate Body  firstly emphasized : "The ordinary meaning of the word "investigation" suggests 
that the competent authorities should carry out a "systematic inquiry" or a "careful study" into 
the matter before them.  The word, therefore, suggests a proper degree of activity on the part 
of the competent authorities because authorities charged with conducting an inquiry or a study  
[…] must actively seek out pertinent information ". 
7. Concerning the fai lure to provide non -confidential summaries, in US - Wheat Gluten , the 
Appellate Body determined that: "the refusal by a Member to provide information requested 
of it undermines seriously the ability of a panel to make an objective assessment of the facts 
and the matter, as required by Article 11 of the DSU. Such a refusal also undermines the 
ability of other Members of the WTO to seek the "prompt" and "satisfactory" resolution of 
disputes […] ". 
8. Furthermore, concerning the failure to conduct consu ltations, i n Korea – Dairy , the Panel 
determined that consultations must be held before the application of a safeguard measure, 
that is, when the safeguard measure is still merely a proposal . In the current investigation, 
Ukraine did not comply with the procedure established in the Agreement on Safeguards , as it 
did not carry out the corresponding consultations, and did not fulfil its obligations under 
GATT  1994. As indicated in the Appellate Body report in US – Wheat Gluten , the information 
referred to i n Article 12.2 of the Agreement on Safeguards, that is, evidence of serious injury, 
should be provided before consultations are conducted and, in any case, prior to the imposition 
of the definitive safeguard, which was not the case.  
III. REQUEST  
As mandated in Article 13.1(b) of the Agreement on Safeguards, Ecuador requests the 
Committee on Safeguards to rule on whether compliance was ensured with the procedural 
requirements established in the aforementioned Agreement during the investigation that gave 
rise to t he imposition of the definitive safeguard measure in question. It also requests the 
Committee to report its findin gs to the Council for Trade in Goods.  
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