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摘要：2024年11月22日，中国畜牧业协会会同9个主产区协会，代表国内牛肉产业向商务部正式提交了一份申请书，认为近年来中国牛肉进口数量急剧增长，对国内产业产生了重大不利影响，请求调查机关对进口牛肉进行保障措施调查。依据《中华人民共和国保障措施条例》第三条的规定，商务部决定自2024年12月27日起对进口牛肉进行保障措施立案调查，本次调查确定的调查期为2019年1月1日至2024年6月30日。目前，商务部贸易救济调查局已发布关于利害关系方申请举行牛肉保障措施案听证会有关事项的通知以及关于发放本案调查问卷的通知，各利害相关方应积极参与。本文以外国出口商和生产商的视角，从此次牛肉保障措施案入手，梳理了本保障措施调查的相关时间线，对保障措施的适用条件、适用方式等作了简要介绍，并对外国出口商和生产商可以如何应对保障措施调查提出了建议。

Abstract:

On 22^nd November 2024, China Animal Agriculture Association, together with nine associations of major production areas, formally submitted an application to the Ministry of Commerce (“MOFCOM”) on behalf of the domestic beef industry, arguing that the sharp increase in quantity of beef imported into China in recent years had had a significant adverse impact on the domestic industry, and requesting that the authority conduct a safeguard measure investigation into imported beef. 

According to Article 3 of the Regulation on Safeguard Measures of the People’s Republic of China (“PRC”, for the purpose of this article, excluding Hong Kong Special Administrative Region, Macau Special Administrative Region and Taiwan), on 27^th December 2024, MOFCOM decided to launch a safeguard investigation on imported beef. This investigation will be conducted on imports of the Product between 1^st January 2019 and 30^th June 2024. In the same time, MOFCOM has published questionnaires for interested parties and a notice on application for hearings.

From the perspective of foreign exporters and producers, this article combs through the relevant timeline of this safeguard investigation, briefly introduces the conditions for the application of the safeguard measure, and provides suggestions on how foreign exporters and producers can respond to this safeguard investigation.

I. A Brief Introduction to Safeguard Measures

Antidumping, countervailing, and safeguard measures investigation are the three trade remedy instruments that many of the largest importing countries in WTO system use to restrict international trade.

A safeguard investigation seeks to determine whether increased imports of a product are causing, or threatening to cause, a serious injury to a domestic industry. A WTO member may take a safeguard action (i.e., restricting imports of a product temporarily) only if the increased imports of the product are found to be causing, or threatening to cause, a serious injury.¹

Safeguard measures shall be applied to a certain product being imported irrespective of its source², unless exceptions are made for products from developing countries under special circumstances. During a safeguard investigation, importers, exporters, and other interested parties may present evidence and views, and respond to the presentations of other parties.

The WTO Agreement on Safeguards serves as the legal cornerstone, establishing principles, procedures, and standards for the implementation of safeguard measures to ensure their alignment with the global trade rules framework and to prevent the abuse of protectionism. The Regulations on Safeguard Measures are tailored to the specific conditions of the PRC, further elaborating the operational procedures, investigation standards, and industry definitions related to safeguard measures. In synergy, these two frameworks have enabled the construction of a safeguard measure system that not only ensures that investigations and subsequent measures be conducted within the rule of law, but also effectively maintains a balance between protection of international trade order and safeguard of domestic industry interests.

II. Safeguard Investigation on Imported Meat of Bovine Animals Launched by MOFCOM

1. Background

China Animal Agriculture Association, Animal Agriculture Association of Jilin Province, Animal Agriculture Association of Liaoning Province and other seven Industry Association (“Applicant”), on behalf of the domestic industry of beef, submitted an application for safeguard investigation on imported meat of bovine animals (“Product”) to the MOFCOM on 22^nd November 2024. For MOFCOM’s reference, The Applicant submitted the information on the Product, the like product or directly competitive products in the PRC, the increased imports of the Product, the impact of the Product in the domestic industry and the relevant evidence. ³

MOFCOM considered that such information provided by the Applicant indicated a recent dramatic increase in imports of the Product, a decline on relevant productive and economic indices (such as domestic sales price, market share, revenue and profit before tax) which showed domestic industry suffered a serious injury, and the existence of a causal link between the import increase of the Product and the serious injury suffered by the domestic industry. MOFCOM also considered that the Applicant provided sufficient analysis of the reasons on the import increase of the Product, of which unforeseen development was mentioned.⁴

After considering these facts, on 27^th December 2024, MOFCOM made its decision and launched a safeguard investigation on the Product. This investigation will be conducted on imports of the Product between 1^st January 2019 and 30^th June 2024.

This is the third time that the PRC has initiated a safeguard investigation on foreign products after its accession to WTO. The first was a safeguard investigation on certain imported steel products in 2002, and the second was a safeguard investigation on imported sugar in 2016.

2. Procedure for Participation as Foreign Interested Parties in this Safeguard Investigation

According to MOFCOM’s announcement and the notification submitted by MOFCOM to WTO, we have consolidated the key events and timeline, from the foreign interested parties’ perspective, in relation to this safeguard investigation as follows:

• On 22^nd November 2024, the Applicant filed an application for this safeguard investigation with MOFCOM;

• On 27^th December 2024, MOFCOM issued an announcement to launch the safeguard investigation;

• Interested parties are required to register to participate in the investigation within twenty days of the abovementioned announcement, and if needed, submit comments on the non-substantive issues of the matter (e.g., the product under investigation, standing of the applicant, or any other related matters);⁵

• On 30^th December 2024, MOFCOM published a notice regarding the Interested Parties’ application for hearings;⁶

• Interested parties are required to submit an application form applying for hearings within twenty days of publication of the notice;

• On 26^th January 2025, MOFCOM published a notice of distribution of questionnaires for the purpose of this safeguard investigation⁷. For foreign exporters or producers, the responses to these questionnaires should be submitted by 17^th February 2025 at 17:00 PRC time. The questionnaire should be answered in simplified Chinese, and the foreign exporters or producers may appoint PRC lawyers to answer such questionnaires on their behalf;⁸

• MOFCOM will conduct its investigation by collecting information through registration of responses, case reviews, holding hearings and seminars, issuing questionnaires, and conducting field research, or other appropriate means. The investigation is usually concluded within eight months and may be appropriately extended under special circumstances;

• A verdict will be then reached by MOFCOM on whether to adopt safeguard measures. MOFCOM publishes a report setting forth their findings and reasoned conclusions reached on all pertinent issues of fact and law and, at the same time notifies WTO’s Safeguards Committee of its decision; and

• Before adopting a safeguard measure, adequate opportunities for negotiation and consultation will be provided to the governments of the countries (or regions) that have a substantial interest in the export business operators of the products under investigation.

Such events and timeline are illustrated in the following table:

3. Application of Safeguard Measures

As provided in the WTO Agreement on Safeguards and the PRC Regulations on Safeguard Measures, a safeguard measure can only be applied when MOFCOM has determined that such product is being imported into the PRC territory in such increased quantities, absolute or relative to domestic production, and under such conditions as to cause or threaten to cause material damage to PRC’s domestic industry that produces like or directly competitive products.⁹

Based on the above conditions and with reference to the previous safeguard measures on sugar, we have summarized the reasons that MOFCOM may consider for imposing safeguard measures on the Product as follows:

• The imported products under investigation are like products¹⁰ or directly competitive products¹¹ of the domestic products;

• The domestic industry¹² that produces like products or directly competitive products suffered material damage from imported products;

• The import surge or increased quantities justifies safeguard action, with it being a real increase in imports (an absolute increase) or an increase in the imports’ share of a shrinking market, even if the import quantity has not increased (relative increase);

• Serious injury has been caused or threatened to cause to domestic industry;

• The existence of a causal link between increased imports of the product concerned and material damage or threat to the domestic industry;

• Unforeseen developments led to the sharp increase in the imports of the products under investigation; and

• Implementing safeguard measures are in the public interest, etc.

After considering the abovementioned conditions and criteria, safeguard measures may be adopted in the form of raising tariffs or limiting the quantity. The measures shall be only to the extent necessary to prevent or remedy serious injury and to help the industry concerned adjust. Additionally, a safeguard measure should not last for more than four years; and the measure may be extended up to ten years, subject to determination by competent national authorities that the measure is needed and that there is evidence the industry is adjusting.

III. Suggestions for Foreign Exporters or Producers on How to Respond to a Safeguard Investigation

If the safeguard measures are adopted, foreign exporters and producers may face an increased tariff or limited quota when exporting their relevant beef products into the Chinese market, which will in turn result in an increase in the cost of exporting to the PRC, or a decrease in volume. Therefore, in order to claim as many interests and benefits as possible in the process of safeguard investigations conducted by MOFCOM, foreign exporters or producers should actively participate in the investigations and submit relevant opinions, information and evidence.

First, we suggest that foreign exporters or producers register as interested parties as soon as possible in a timely manner. Only after registering with MOFCOM as interested parties can foreign exporters or producers gain a more direct opportunity to communicate with MOFCOM and provide comments, information and evidence to support their claim.

Second, we suggest that foreign exporters or producers participate in this investigation procedure through various approaches, such as response to questionnaires, applying for hearings and other applicable ways.

Third, we recommend that foreign exporters or producers collect and analyze as much information as possible, including reviewing their own products, analyzing data on the Chinese market, and preparing comments with the help of PRC lawyers for submission to MOFCOM. For example, by analyzing relevant information and data, foreign exporter or producer may argue that the imported products and the PRC domestic products are not alike, or have not formed direct competition.

In the safeguard investigation on imported sugar in 2016, the product under investigation was sugar, which consisted of raw sugar and refined sugar. Korea Sugar Association and other Korean exporters and producers argued that refined sugar and raw sugar were distinct products, differing in their intended product use, PRC tariff classification code, applicable national standards, and food hygiene indicators. Safeguard measures should be applied to a single product being imported into the PRC. Therefore, refined sugar and raw sugar should not simultaneously be considered as subject products in a single safeguard investigation.

In addition to comparing between the product under investigation and the foreign exporters’ or producers’ own product, it is also necessary to gather comprehensive information about the Chinese domestic industry, including but not limited to the product range and operational status of various producers and processors, to determine whether there are any domestic producers in the selected enterprises that do not produce “like products or directly competitive products”.

It is also recommended to review whether MOFCOM has comprehensively taken domestic producers and domestic industry into account, as this may have affected the output of domestic production and the proportion of imported products. For instance, in the case of investigation on sugar, some exporters and importers argued that some domestic processing enterprises converting raw sugar into refined sugar, which included the addition of manual labor to produce refined sugar, should also be considered as domestic producers of refined sugar. Thus, these processing enterprises that produce refined sugar from imported raw sugar should be included in the domestic industry.

Fourth, although foreign exporters or producers may not be familiar with economic information on the Chinese market, to provide MOFCOM with comprehensive analysis, it is advisable for them to collect extensive economic indicators from the domestic Chinese market with the assistance of PRC lawyers. Such economic indicators include, but are not limited to, production volume, capacity, market share, inventory, profitability, return on investment, cash flow, employment and other related factors. In the case of investigation on imported sugar case, some exporters argued that although certain indicators showed a decline of domestic relevant production, which may be influenced by imported sugar, other indicators demonstrated a positive trend during most of the investigation period.

In determining whether the domestic industry has suffered material damage, it should not be based solely on the performance of certain economic indicators, but rather should take into account the overall impact of all economic indicators and other relevant factors. For example, the COVID-19 pandemic caused serious damage to China’s economy during the period between the end of 2019 and 2022. This factor and relevant economic data may be applicable to argue that China’s domestic industry of beef products is not mainly influenced by imported beef.

Fifth, foreign exporters and producers may conduct a comprehensive review of the factors raised by the applicants applying for safeguard investigation, and argue that such factors are not relevant to the growth of imported products.

For instance, in the case of investigation on imported sugar, the applicants claimed that some factors, such as the severe oversupply in the global sugar supply chain for five consecutive years, significant appreciation of the RMB, and the global financial crisis, provided imported sugar with a significant competitive advantage. Foreign exporters argued that those are foreseeable, predictable and common in international trading. Thus, not relevant to any changes in the PRC domestic industry.

IV. Conclusion

In conclusion, this safeguard investigation launched by MOFCOM on 27^th December 2024 focuses on imports of the meat of bovine animals between 1^st January 2019 and 30^th June 2024. We recommend that foreign exporters or producers, with the help of PRC lawyers, pay attention to the notices issued by MOFCOM and register and respond to MOFCOM's investigations within the appropriate timeframe. In addition, we recommend that foreign exporters or producers gather relevant information about the beef market in the PRC and comment on the applicant's application in a timely manner. In this way, foreign exporters or producers can provide MOFCOM with more comprehensive information so that MOFCOM can make a reasonable judgement and at the same time, pursue their own interests.

Intern Xiang Long contributed to this article.

Notes ：

1.https://www.wto.org/english/news_e/news24_e/safe_chn_27dec24_e.htm

2.Article 2 of The WTO Agreement on Safeguards

3.Committee on Safeguards - Notification under article 12.1(a) of the Agreement on Safeguards on initiation of an investigation and the reasons for it - China - Meat of bovine animals, G/SG/N/6/CHN/3

4.Committee on Safeguards - Notification under article 12.1(a) of the Agreement on Safeguards on initiation of an investigation and the reasons for it - China - Meat of bovine animals, G/SG/N/6/CHN/3

5.Trade Remedy and Investigation Bureau, Ministry of Commerce, Announcement on Safeguard Measures Investigation on Imported Beef, https://trb.mofcom.gov.cn/myjjdc/art/2024/art_5aa54f7c76ef4cfc8ce0a7cf13605491.html

6.Trade Remedy and Investigation Bureau, Ministry of Commerce, Notice of Matters Regarding the Interested Parties’ Application for Hearings, https://trb.mofcom.gov.cn/myjjdc/art/2024/art_c182d0b653f7497fb70c17a199f77e5a.html

7.Trade Remedy and Investigation Bureau, Ministry of Commerce, Notice of Distribution of Questionnaires in this Safeguard Investigation Case, https://trb.mofcom.gov.cn/myjjdc/art/2025/art_739547f9494a4264b154eae4228d1b5d.html

8.Trade Remedy and Investigation Bureau, Ministry of Commerce, Questionnaire for Foreign Exporters or Producers, https://trb.mofcom.gov.cn/cms_files/filemanager/1511035453/attach/20251/5f53ed5c5f464751b51fce84399d2779.pdf?fileName=牛肉保障措施调查国外出口商或生产商问卷.pdf

9.Article 2 of the WTO Agreement on Safeguards

10.For the purpose of this safeguard investigation, the scope of like products is beef and beef products from the slaughtering and processing of live cattle (bovine animals), including fresh, chilled or frozen whole and half-heads of beef, boned beef and boneless beef.

11.For the purpose of this safeguard investigation, the scope of directly competitive products is beef cattle, meaning live cattle used primarily for the production of beef.

12.According to the PRC Regulation on Safeguard Measures, domestic industry means the producers as a whole of the like products or directly competitive products operating within the PRC, or those whose collective output of the Like Products or Directly Competitive Products constitutes a major proportion of the total domestic production of those products.