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Commission stuck in between going after, defending unilateral Ukraine import bans

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The European Commission is in the odd situation of potentially opening an infringement procedure against the EU countries imposing unilateral bans on Ukraine products while, at the same time, defending the same countries sued by Ukraine at the World Trade Organisation.

The decision of Poland, Slovakia and Hungary to unilaterally impose restrictions on Ukrainian grain imports is still debated in Brussels as potentially in breach of EU law since trade measures are an exclusive competence of the Commission.

On Thursday (21 September), a Commission spokesperson said that the EU executive still “reserves its rights, if necessary, to launch at one point an infringement procedure against those countries that have introduced unilateral bans.”

According to legal experts, a possible option at the Commission’s disposal is a letter of formal notice under Article 258 of the Treaty on the functioning of the EU (TFEU).

However, the Commission currently considers this option “a theoretical possibility but not something that we have asked”, the spokesperson continued, adding that no announcement about infringement has been made.

“We could perhaps launch an infringement procedure. We’re not at that point yet, because we’re trying to find a constructive and equitable solution that would solve this problem,” she clarified.

The unilateral national bans were approved after the Commission decided not to extend European temporary restrictions on imports into Ukraine’s five EU neighbours, presenting a new scheme that requires instead a bigger involvement of Ukraine in controlling its imports.

For the Commission, a constructive solution means implementing the action plan presented by Ukraine on Monday (18 September) in the joint coordination platform.

The action plan, which is currently being discussed together with the EU partners, includes a control system for four groups of goods – wheat, maise, rapeseed, and sunflower seeds – in order to prevent any future market distortions in the neighbouring member states.

The Commission is confident that once these measures are put into place, there will be “no need to have unilateral bans at the national level” and so “avoid these types of discussions [on infringement procedures]”.

On Monday, Ukraine’s government announced it had filed lawsuits at the World Trade Organisation (WTO) against Poland, Slovakia, and Hungary following their decision to adopt the unilateral bans.

As a consequence, the Commission finds itself in the odd situation of appearing before the WTO in defence of the three countries – which are at risk of receiving an infringement procedure from the EU executive itself for the same wrongdoing.

“Given that trade policy is the exclusive competence of the EU, the practice is that it’s the Commission that represents the three countries [at the WTO],” explained another Commission spokesperson on Thursday (21 September).

She specified that the EU executive already entered into contact with the three countries to get all the details ahead of a potential WTO dispute settlement procedure while also trying to sort out the whole issue at a European level.

“Now we’re at the beginning of the road here. We’re not yet in the dispute phase, we’re in the consultation phase,” she added. In this first consultative stage, Ukraine and the Commission on behalf of the three countries are discussing with the WTO in a bid to try and find a solution, the spokesperson continued.

However, the situation is evolving as Reuters reported that Ukraine already found a bilateral agreement with Slovakia to settle the dispute on Thursday, in which the war-torn country agreed to license its grain exports to its EU neighbour.

Asked about the Ukraine-Slovakia deal, the Commission said that it is a bit early to give an assessment, “but this is in line with what we have been saying over the last days that we need to engage and find constructive solutions”, according to the spokesperson.

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