Taxation (Cross-border Trade) Act 2018

PART 2 U.K. Safeguarding investigations

Safeguarding investigation U.K.

6 (1) The TRA may investigate— U.K.

(a) whether goods have been or are being imported into the United Kingdom in increased quantities, and

(b) whether the importation of the goods in increased quantities has caused or is causing serious injury to UK producers of those goods.

(2) References in this Schedule to a “safeguarding investigation” are to an investigation under sub-paragraph (1).

Commencement Information

I1 Sch. 5 para. 6 in force at 4.3.2019 at 11:59 a.m. by S.I. 2019/429, reg. 2 (with regs. 4-9)

Initiation of a safeguarding investigation U.K.

7 (1) The TRA may initiate a safeguarding investigation in relation to goods only if— U.K.

(a) it is requested to initiate an investigation in an application made—

(i) by or on behalf of UK producers of the goods (“the applicant UK producers”), or

(ii) by the Secretary of State,

(b) it is satisfied that the application contains sufficient evidence that—

(i) the goods have been or are being imported into the United Kingdom in increased quantities, and

(ii) the importation of the goods in increased quantities has caused or is causing serious injury to UK producers of those goods,

(c) the market share requirement is met or the TRA waives the requirement in relation to the application, and

(d) the application is accompanied by a preliminary adjustment plan or the TRA waives the requirement for the application to be accompanied by such a plan.

(2) The market share requirement is met if—

(a) in the case of an application under sub-paragraph (1)(a)(i), the TRA is satisfied that the applicant UK producers have a share of the market for like goods and directly competitive goods for consumption in the United Kingdom (whether produced there or elsewhere) which is sufficient to justify initiating the investigation;

(b) in the case of an application under sub-paragraph (1)(a)(ii), the TRA is satisfied that UK producers of the goods have a share of the market for like goods and directly competitive goods for consumption in the United Kingdom (whether produced there or elsewhere) which is sufficient to justify initiating the investigation.

(3) A preliminary adjustment plan is—

(a) in the case of an application under sub-paragraph (1)(a)(i), a plan setting out how the applicant UK producers think they might be able to adjust to the importation of the goods in increased quantities;

(b) in the case of an application under sub-paragraph (1)(a)(ii), a plan setting out how UK producers of the goods might be able to adjust to the importation of the goods in increased quantities.

(4) Regulations may make provision about—

(a) what constitutes or does not constitute an application made by or on behalf of UK producers for the purposes of sub-paragraph (1)(a)(i);

(b) when an application is made for the purposes of sub-paragraph (1)(a);

(c) the information to be contained in such an application;

(d) the time limit for determining such an application;

(e) the form and content of a preliminary adjustment plan;

(f) what constitutes or does not constitute “the market for like goods and directly competitive goods for consumption in the United Kingdom” and UK producers' “share” of that market for the purposes of sub-paragraphs (1)(c) and (2);

(g) how any of those matters are to be determined for the purposes of sub-paragraphs (1)(c) and (2).

[F1 (4A) Where the TRA receives an application under sub-paragraph (1)(a)(i), the TRA must notify the Secretary of State of the application before the end of the second working day after the day on which it receives the application]

(5) If any of the requirements of sub-paragraph (1)(a) to (d) in respect of a safeguarding investigation are not met, the TRA must reject the application and notify the applicant accordingly (unless it is the requirement in sub-paragraph (1)(a) that is not met because the application has been withdrawn).

(6) If the requirements of sub-paragraph (1)(a) to (d) in respect of a safeguarding investigation are met, the TRA must [F2 notify the Secretary of State that it intends to initiate a safeguarding investigation and, after the relevant interval, must take the following steps in the order in which they are set out]—

(a) accept the application and initiate the investigation,

(b) publish notice of its decision to initiate the investigation (including notice of the goods which are the subject of the investigation), and

(c) notify the Secretary of State and interested parties (see paragraph 31(3)) accordingly.

[F3 (6A) In sub-paragraph (6), the “relevant interval” is the period of two working days beginning with the first working day after the day on which the TRA notifies the Secretary of State of its intention to initiate the safeguarding investigation.]

(7) Notices under sub-paragraph (6)(b) and (c) must specify the date of the initiation of the investigation.

[F4 (8) In this paragraph, “working day” means any day other than a Saturday, a Sunday or a day that is a bank holiday under the Banking and Financial Dealings Act 1971 in any part of the United Kingdom.]

Textual Amendments

F1 Sch. 5 para. 7(4A) inserted (25.8.2023) by Finance (No. 2) Act 2023 (c. 30), Sch. 19 paras. 9(1)(a), 17(2); S.I. 2023/918, reg. 2 (with reg. 3)

F2 Words in Sch. 5 para. 7(6) inserted (25.8.2023) by Finance (No. 2) Act 2023 (c. 30), Sch. 19 paras. 9(1)(b), 17(2); S.I. 2023/918, reg. 2 (with reg. 3)

F3 Sch. 5 para. 7(6A) inserted (25.8.2023) by Finance (No. 2) Act 2023 (c. 30), Sch. 19 paras. 9(1)(c), 17(2); S.I. 2023/918, reg. 2 (with reg. 3)

F4 Sch. 5 para. 7(8) inserted (25.8.2023) by Finance (No. 2) Act 2023 (c. 30), Sch. 19 paras. 9(1)(d), 17(2); S.I. 2023/918, reg. 2 (with reg. 3)

Commencement Information

I2 Sch. 5 para. 7 in force at 4.3.2019 at 11:59 a.m. by S.I. 2019/429, reg. 2 (with regs. 4-9)

Conduct of a safeguarding investigation U.K.

8 (1) Regulations may make provision about the conduct of a safeguarding investigation. U.K.

(2) Paragraph 10(2) of Schedule 4 applies to regulations under sub-paragraph (1) in relation to a safeguarding investigation as it applies to regulations under paragraph 10(1) of that Schedule in relation to a dumping or a subsidisation investigation.

Commencement Information

I3 Sch. 5 para. 8 in force at 4.3.2019 at 11:59 a.m. by S.I. 2019/429, reg. 2 (with regs. 4-9)

Provisional affirmative determinations and final affirmative or negative determinations U.K.

9 (1) In the case of a safeguarding investigation, an “affirmative determination” in relation to goods means a determination that— U.K.

(a) the goods have been or are being imported into the United Kingdom in increased quantities, and

(b) the importation of the goods in increased quantities has caused or is causing serious injury to UK producers of those goods.

(2) At any stage during a safeguarding investigation, the TRA may make an affirmative determination, based on the evidence then before it, in relation to goods which are the subject of the investigation (referred to in this Schedule as “a provisional affirmative determination”).

(3) But the TRA may only make such a determination if it is satisfied that interested parties (see paragraph 31(3)) have been given an adequate opportunity to provide information to it regarding the investigation.

(4) The TRA must make a final determination in relation to each of the goods which are the subject of a safeguarding investigation.

(5) A final determination under sub-paragraph (4) in relation to goods is—

(a) an affirmative determination (referred to in this Schedule as a “final affirmative determination”), or

(b) if the TRA determines that it cannot make an affirmative determination in relation to the goods, a negative determination (referred to in this Schedule as a “final negative determination”) [F5 (but see paragraph 10A for a requirement to give notice to the Secretary of State in certain cases)].

(6) The TRA may make different final determinations in relation to different goods which are the subject of the investigation.

(7) The TRA must—

(a) publish notice of its final negative determination or final negative determinations under sub-paragraph (4), and

(b) notify the Secretary of State and interested parties accordingly.

Textual Amendments

F5 Words in Sch. 5 para. 9(5) inserted (25.8.2023) by Finance (No. 2) Act 2023 (c. 30), Sch. 19 paras. 9(2), 17(2); S.I. 2023/918, reg. 2 (with reg. 3)

Commencement Information

I4 Sch. 5 para. 9 in force at 4.3.2019 at 11:59 a.m. by S.I. 2019/429, reg. 2 (with regs. 4-9)

Termination of a safeguarding investigation U.K.

10 U.K. A safeguarding investigation in relation to goods terminates (if it has not already terminated by virtue of provision made under paragraph 8(1))—

(a) in a case where the TRA makes a final negative determination in relation to the goods, when notice of that determination is published under paragraph 9(7)(a),

(b) in a case where the TRA makes a final affirmative determination in relation to the goods and determines that there is not a recommendation which it could make under paragraph 16(3) in relation to them, when notice of that determination is published under paragraph 16(11)(b) [F6 (and see paragraph 10A for a requirement to give notice to the Secretary of State before making the determination)],

(c) in a case where the TRA makes a final affirmative determination in relation to the goods and makes a recommendation under paragraph 16(3) in relation to them which the Secretary of State rejects, when the notice of rejection is published under paragraph 19(3)(a) or 20(3)(a) [F7 or the Secretary of State publishes notice of a decision under paragraph 19(2C) or 20(2C)], or

(d) in a case where the TRA makes a final affirmative determination in relation to the goods and makes a recommendation under paragraph 16(3) in relation to them which the Secretary of State accepts, at the end of the day of publication of the public notice under section 13 giving effect to the recommendation.

Textual Amendments

F6 Words in Sch. 5 para. 10(b) inserted (25.8.2023) by Finance (No. 2) Act 2023 (c. 30), Sch. 19 paras. 9(3)(a), 17(2); S.I. 2023/918, reg. 2 (with reg. 3)

F7 Words in Sch. 5 para. 10(c) inserted (25.8.2023) by Finance (No. 2) Act 2023 (c. 30), Sch. 19 paras. 9(3)(b), 17(2); S.I. 2023/918, reg. 2 (with reg. 3)

Commencement Information

I5 Sch. 5 para. 10 in force at 4.3.2019 at 11:59 a.m. by S.I. 2019/429, reg. 2 (with regs. 4-9)

[F8 Requirement to give notice to the Secretary of State in certain cases U.K.

Textual Amendments

F8 Sch. 5 para. 10A and cross-heading inserted (25.8.2023) by Finance (No. 2) Act 2023 (c. 30), Sch. 19 paras. 9(4), 17(2); S.I. 2023/918, reg. 2 (with reg. 3)

10A (1) This paragraph applies where the TRA— U.K.

(a) proposes to make a final negative determination, or

(b) proposes to make a final affirmative determination in relation to goods and to determine that there is not a recommendation which it could make under paragraph 16(3) in relation to them.

(2) The TRA must notify the Secretary of State of its proposed determination.

(3) Where the Secretary of State has been notified in accordance with sub-paragraph (2), the Secretary of State may, within the relevant period (and subject to sub-paragraph (4)), request that the TRA reassess its proposed determination by reference to any matters specified in the request.

(4) The Secretary of State may only make a request under sub-paragraph (3) where the Secretary of State considers that—

(a) there is information that the TRA did not take into account in its investigation that is relevant to the proposed determination,

(b) the TRA has made an error in relation to its proposed determination, or

(c) exceptional circumstances make the request appropriate.

(5) The TRA must comply with a request under sub-paragraph (3).

(6) The TRA may not make its proposed determination until—

(a) the relevant period has ended, or

(b) if the Secretary of State informs the TRA within the relevant period that the Secretary of State will not make a request under sub-paragraph (3), the time when the TRA receives that information.

(7) For the purposes of this paragraph, the relevant period is the period of 21 days beginning with the day on which the TRA notifies the Secretary of State that it proposes to make the determination.]