Page 625 - MANUAL OF SOP

Manual of OP for Trade Remedy Investigations

this right to exist, the WTO Member in question must have determined, as
required by Article 2.1 of the Agreement on Safeguards and pursuant to
the provisions of Articles 3 and 4 of the Agreement on Safeguards, that a
product is being imported into its territory in such increased quantities and
under such conditions as to cause or threaten to cause serious injury to
the domestic industry. Second, if this first inquiry leads to the conclusion
that there is a right to apply a safeguard measure in that particular case,
then the interpreter must next consider whether the Member has applied
that safeguard measure 'only to the extent necessary to prevent or remedy
serious injury and to facilitate adjustment', as required by Article 5.1, first
sentence, of the Agreement on Safeguards. Thus, the right to apply a
safeguard measure—even where it has been found to exist in a particular
case and thus can be exercized—is not unlimited. Even when a Member has
fulfilled the treaty requirements that establish the right to apply a safeguard
measure in a particular case, it must do so 'only to the extent necessary . "

24.128. In WTO Dispute Dominican Republic – Safeguard Measures (DS417)
the Panel interpreted Article 12 and noted following:
“Article 12 of the Agreement on Safeguards is linked to the obligations to
notify and give Members the opportunity to hold consultations provided by
Article XIX of the GATT 1994. Therefore, the requirements of Article XIX:2
of the GATT 1994 should be analysed in conjunction with Article 12 of the
Agreement on Safeguards.2 These two provisions "have to be interpreted
together and giving meaning to the terms in both provisions.”
24.129. The Panel in WTO Dispute Ukraine – Passenger Cars (DS468) pointed
out that in some cases it may be difficult to identify the date on which the event
that triggered a notification obligation under Article 12.1 occurred:

"To assess whether or not a notification under Article 12.1 was 'immediate',
it is necessary to establish both the date on which the relevant triggering
event occurred and the date of the notification. The latter is generally
taken to correspond to the date on which the notification was sent to
the Committee on Safeguards, but the position is less clear with regard
to the former. An issue may arise as to whether the Panel should assess
the immediacy of the notifications under Article 12.1 by reference to: (i)
the date of adoption of the relevant decision on the action concerned (i.e.

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