Slovak Republic – Measures Concerning
Agricultural Products
from Ukraine
Request for Consultations by Ukraine
The
following communication, dated 18 September 2023, from the delegation of Ukraine
to the delegation of the Slovak Republic, is circulated to the Dispute
Settlement Body in accordance with Article 4.4 of the DSU.
_______________
I have been instructed by my authorities to
request consultations with the Slovak Republic pursuant to Article XXIII of the
General Agreement on Tariffs and Trade of 1994 ("GATT 1994"), Article
19 of the Agreement on Agriculture, and Article 4 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes ("DSU")
concerning measures of the Slovak Republic affecting the importation of certain
agricultural products from Ukraine. These measures
adversely affect exports that are of key significance for Ukraine's economy, at
the time when Russia's illegal, unjustifiable, and unprovoked war of aggression
has had a devastating impact on Ukraine's economy and its ability to trade with
other WTO Members.
Pursuant to Article 4.4 of the DSU, Ukraine
describes below the reasons for this request, including the identification of
the measures at issue and an indication of the legal basis for the complaints.
I. Background to the dispute
On
April 13, 2023, the Slovak Republic applied a temporary prohibition on
processing and introducing Ukrainian wheat into its feed and food chain,
allegedly because a non-authorised pesticide (chlorpyrifos) had been detected
in a sample of this product.1 Furthermore,
on April 17, 2023, the Ministry of Agriculture and Rural Development of the
Slovak Republic submitted to the Government of the Slovak Republic a proposal
to ban the importation of selected agricultural products and foodstuffs
originating in Ukraine and to introduce a special regime for the transit of
these goods through Slovak territory.2
The
measure of the Slovak Republic was subsequently replaced by certain import
prohibitions at the EU level. In particular, on May 2, 2023, the EU Commission
decided to prohibit the importation of four categories of Ukrainian
agricultural products into the Republic of Poland, Hungary, the Slovak
Republic, Romania, and the Republic of Bulgaria until June 5, 2023, with the
possibility of extending this measure. This prohibition was introduced through
Article 1 of Regulation (EU) 2023/903 of May 2, 2023,
which stated as follows:
Except for the execution of contracts that
were signed before the entry into force of this Regulation, the release for
free circulation or placing under the customs warehousing, free zone or inward
processing procedures of the products listed in the Annex to this Regulation
originating in Ukraine, shall only be allowed in Member States other than
Bulgaria, Hungary, Poland, Romania or Slovakia.3
The
EU Commission subsequently extended this prohibition until September 15, 2023
through Regulation (EU) 2023/1100 of June 5, 2023.4
The
EU's import prohibition is not currently in force. On September 16, 2023, the EU
Commission concluded that the temporary measures introduced on May 2, 2023, had
contributed sufficiently to the elimination of the market distortions in the
five EU Member States bordering Ukraine. The EU authorities thus decided not to
extend the measure.5
However, despite the decision of the EU
Commission the Slovak Republic announced on September 16, 2023, that its own
ban on a list of Ukrainian products came into force on September 15, 2023, through the Resolution № 466/2023 of the Government of the
Slovak Republic applying the prohibition on import of four
commodities — wheat, corn, rapeseed and sunflower seeds — from Ukraine.6 This
Resolution expires on December 31, 2023.
II. IDENTIFICATION OF THE MEASURES AT ISSUE
The measure at issue is the import
prohibitions on various agricultural goods originating in Ukraine, as described
in Section I above, whether applied by the national authorities of the Slovak
Republic through the instruments referred to in Section I above or any other
applicable instruments.
Ukraine's
request for consultations also concerns any other
instrument, modifying, supplementing, complementing, developing,
or in any manner relating to the measures at issue. This request is intended to address current
laws, regulations, policies and practices, as well as any changes or amendments
to those laws, regulations, policies or practices that may be in process or may
be implemented in the future by the Slovak Republic, or at the EU level.
III. LEGAL BASIS FOR THE COMPLAINT
The measures at issue, as described in
Section II above, appear to be inconsistent with several provisions of the
Agreement Establishing the World Trade Organization ("WTO
Agreement"). In particular, these measures would appear to be inconsistent
with:
(i) Article XI:1 of the
GATT 1994, as they prohibit or restrict the importation of agricultural goods
from Ukraine to the territories of the Slovak Republic;
(ii) Article V:2 of the
GATT 1994 to the extent that Slovak Republic's measure either de jure or de facto restricts freedom of transit of Ukrainian
agricultural goods through the territory of Slovak Republic to other EU Member
States;
(iii) Article X:1 of the
GATT 1994, as the Slovak Republic failed to publish its regulations at issue
promptly in such a manner as to enable the Government of Ukraine and traders to
become acquainted with them;
(iv) Article 4.2 of the
Agreement on Agriculture, as the Slovak Republic has maintained, resorted to,
or reverted to measures of the kind which have been required to be converted
into ordinary customs duties, such as import prohibitions and restriction on
Ukrainian agricultural goods; and
(v) Article 5 of the
Agreement on Agriculture to the extent that it is applicable, because, inter alia, neither the EU, nor the Slovak
Republic does not appear to have reserved their right to apply measures that
fall under the scope of this provision to most of the products at issue in
their Schedule of Concessions under the GATT 1994; these measures take the form
of a ban instead of a duty; and these measures are discriminatory as they apply
only to Ukrainian imports and not also to other WTO Members' imports.
Ukraine
notes that these consultations might give rise to other matters having legal
implications that are not expressly stated in this request but relate to other
WTO obligations of the Slovak Republic. With a view to facilitating a
wide-ranging exchange of views, Ukraine notes that, if such were to be the
case, these matters would also be covered by the scope of this request for
consultations.
Ukraine
remains a reliable and predictable trading partner. Despite destruction of
traditional agricultural supply chains due to the Russia's war of aggression
against Ukraine, Ukraine is poised to continue guaranteeing Europe's and global
food security and providing European and world consumers with high-quality
Ukrainian products. In this context, it is critical that the Slovak Republic
does not take any steps to restrain or restrict trade and continues to pursue
an open and predictable trade policy vis-a-vis Ukraine, based on the provisions
and principles of the WTO Agreement.
I
look forward to receiving your reply to this request and to fixing a mutually convenient
date for consultations.
__________
3 The goods at issue are: wheat and
meslin (1001), maize (corn) (1005), rape or colza seeds (1205), and sunflower
seeds (1206). See Article 1 and Annex of Commission Implementing Regulation (EU) 2023/903 of 2 May 2023 introducing
preventive measures concerning certain products originating in Ukraine, OJ L
114 I/1, 2.5.2023 (Regulation 2023/903).
4 Commission Implementing Regulation
(EU) 2023/1100 of 5 June 2023 introducing preventive measures concerning
certain products originating in Ukraine, OJ LI 144/1, 5.6.2023 (Regulation
2023/1100).
5 https://ec.europa.eu/commission/presscorner/detail/en/IP_23_4497.
6 https://rokovania.gov.sk/RVL/Resolution/21091/1.