PROTOCOL AMENDING THE MARRAKESH AGREEMENT ESTABLISHING
THE WORLD TRADE ORGANIZATION
DECISION OF 27 NOVEMBER 2014
The General Council;
Having regard to paragraph 1 of Article X of the Marrakesh
Agreement Establishing the World Trade Organization ("the WTO
Agreement");
Conducting the functions
of the Ministerial Conference in the interval between meetings pursuant
to paragraph 2 of Article IV of the WTO Agreement;
Recalling the General Council Decision to commence
negotiations on the basis of the modalities set out in Annex D to that
decision, adopted on 1 August 2004, as well as the Ministerial Decision of 7
December 2013 to draw up a Protocol of Amendment to insert the Agreement on
Trade Facilitation into Annex 1A of the WTO Agreement (the “Protocol”);
Recalling
paragraph 47 of the Doha Ministerial Declaration
of 20 November 2001;
Recalling paragraphs 2
and 3 of the Doha Ministerial Declaration, Annex D of the General Council
Decision of August 2004 and Article 13.2 of the Agreement on Trade Facilitation
on the importance of the provision of assistance and support for capacity
building to help developing and least-developed countries to implement the
provisions of the Agreement on Trade Facilitation;
Welcoming the Director
General's announcement setting up, within the existing WTO structures, a
Trade Facilitation Agreement Facility to manage support that Members volunteer
to provide to the WTO in furtherance of supplementary assistance to implement
the provisions of the Trade Facilitation Agreement and to facilitate coherence
of assistance with the Annex D plus agencies;
Having considered the
Agreement submitted by the Preparatory Committee on Trade Facilitation
(WT/L/931);
Noting the consensus to submit this proposed amendment to the Members for
acceptance;
Decides as follows:
1.
The Protocol
amending the WTO Agreement attached to this Decision is hereby adopted and
submitted to the Members for acceptance.
2.
The Protocol shall hereby be open for acceptance
by Members.
3.
The Protocol
shall enter into force in accordance with the provisions of paragraph 3 of
Article X of the WTO Agreement.
_______________
PROTOCOL AMENDING THE MARRAKESH AGREEMENT ESTABLISHING
THE WORLD TRADE ORGANIZATION
Members of the World Trade Organization;
Referring
to the Agreement on Trade Facilitation;
Having regard to the Decision of the General Council in
document WT/L/940, adopted pursuant to paragraph 1 of Article X of the
Marrakesh Agreement Establishing the World Trade Organization ("the WTO
Agreement");
Hereby
agree as follows:
1.
Annex 1A to
the WTO Agreement shall, upon entry into force of this Protocol pursuant to paragraph
4, be amended by the insertion of the Agreement on Trade Facilitation, as set
out in the Annex to this Protocol, to be placed after the Agreement on
Safeguards.
2.
Reservations
may not be entered in respect of any of the provisions of this Protocol without
the consent of the other Members.
3.
This Protocol is hereby open for acceptance by
Members.
4.
This Protocol
shall enter into force in accordance with paragraph 3 of Article X of the WTO
Agreement.1
5.
This Protocol
shall be deposited with the Director-General of the World Trade Organization
who shall promptly furnish to each Member a certified copy thereof and a
notification of each acceptance thereof pursuant to paragraph 3.
6.
This Protocol
shall be registered in accordance with the provisions of Article 102 of the
Charter of the United Nations.
Done at Geneva this twenty-seventh day of November two
thousand and fourteen, in a single copy in the English, French and
Spanish languages, each text being authentic.
__________
ANNEX
TO THE PROTOCOL AMENDING THE MARRAKESH AGREEMENT ESTABLISHING THE WORLD TRADE
ORGANIZATION
AGREEMENT ON TRADE FACILITATION
Preamble
Members,
Having
regard to the negotiations launched under the Doha
Ministerial Declaration;
Recalling and
reaffirming the mandate
and principles contained in paragraph 27 of the Doha Ministerial
Declaration (WT/MIN(01)/DEC/1) and in Annex D of the Decision of the Doha Work
Programme adopted by the General Council on 1 August 2004 (WT/L/579), as well
as in paragraph 33 of and Annex E to the Hong Kong Ministerial Declaration
(WT/MIN(05)/DEC);
Desiring to clarify and improve relevant aspects of Articles
V, VIII and X of the GATT 1994 with a view to further expediting the
movement, release and clearance of goods, including goods in transit;
Recognizing the particular needs of developing and especially
least-developed country Members and desiring to enhance assistance and
support for capacity building in this area;
Recognizing the need for effective cooperation among Members
on trade facilitation and customs compliance issues;
Hereby agree
as follows:
SECTION I
ARTICLE 1: PUBLICATION AND AVAILABILITY OF INFORMATION
1 Publication
1.1 Each Member shall promptly publish the
following information in a non-discriminatory and easily accessible manner in
order to enable governments, traders, and other interested parties to become
acquainted with them:
(a) procedures for importation, exportation, and
transit (including port, airport, and other entry-point procedures), and
required forms and documents;
(b) applied rates of duties and taxes of any kind
imposed on or in connection with importation or exportation;
(c) fees and charges imposed by or for governmental
agencies on or in connection with importation, exportation or transit;
(d)
rules for the classification or valuation of
products for customs purposes;
(e) laws, regulations, and administrative rulings of
general application relating to rules of origin;
(f)
import, export or transit restrictions or
prohibitions;
(g)
penalty provisions for breaches of import,
export, or transit formalities;
(h)
procedures for appeal or review;
(i)
agreements or
parts thereof with any country or countries relating to importation,
exportation, or transit; and
(i)
procedures relating to the administration of
tariff quotas.
1.2 Nothing in these provisions shall be construed as
requiring the publication or provision of information other than in the
language of the Member except as stated in paragraph 2.2.
2 Information Available Through Internet
2.1
Each Member
shall make available, and update to the extent possible and as appropriate, the
following through the internet:
(a) a description1 of its procedures for
importation, exportation, and transit, including procedures for appeal or
review, that informs governments, traders, and other interested parties of the
practical steps needed for importation, exportation, and transit;
(b) the forms and documents required for importation
into, exportation from, or transit through the territory of that Member;
(c)
contact information on its enquiry point(s).
2.2
Whenever
practicable, the description referred to in subparagraph 2.1(a) shall also be
made available in one of the official languages of the WTO.
2.3
Members are
encouraged to make available further trade-related information through the
internet, including relevant trade-related legislation and other items referred
to in paragraph 1.1.
3 Enquiry Points
3.1
Each Member
shall, within its available resources, establish or maintain one or more
enquiry points to answer reasonable enquiries of governments, traders, and
other interested parties on matters covered by paragraph 1.1 and to provide the
required forms and documents referred to in subparagraph 1.1(a).
3.2
Members of a
customs union or involved in regional integration may establish or maintain
common enquiry points at the regional level to satisfy the requirement of
paragraph 3.1 for common procedures.
3.3
Members are
encouraged not to require the payment of a fee for answering enquiries and
providing required forms and documents. If any, Members shall limit the amount
of their fees and charges to the approximate cost of services rendered.
3.4
The enquiry
points shall answer enquiries and provide the forms and documents within a
reasonable time period set by each Member, which may vary depending on the
nature or complexity of the request.
4 Notification
Each Member shall notify
the Committee on Trade Facilitation established under paragraph 1.1 of Article
23 (referred to in this Agreement as the "Committee") of:
(a) the official place(s) where the items in
subparagraphs 1.1(a) to (j) have been published;
(b)
the Uniform Resource Locators of website(s)
referred to in paragraph 2.1; and
(c)
the contact information of the enquiry points
referred to in paragraph 3.1.
ARTICLE
2: OPPORTUNITY TO COMMENT, INFORMATION BEFORE ENTRY INTO FORCE,
AND CONSULTATIONS
1 Opportunity to Comment and Information before Entry into
Force
1.1 Each Member shall, to the extent practicable and
in a manner consistent with its domestic law and legal system, provide
opportunities and an appropriate time period to traders and other interested
parties to comment on the proposed introduction or amendment of laws and
regulations of general application related to the movement, release, and
clearance of goods, including goods in transit.
1.2
Each Member
shall, to the extent practicable and in a manner consistent with its domestic
law and legal system, ensure that new or amended laws and regulations of
general application related to the movement, release, and clearance of goods,
including goods in transit, are published or information on them made otherwise
publicly available, as early as possible before their entry into force, in
order to enable traders and other interested parties to become acquainted with
them.
1.3 Changes to duty rates or tariff rates, measures
that have a relieving effect, measures the effectiveness of which would be
undermined as a result of compliance with paragraphs 1.1 or 1.2, measures
applied in urgent circumstances, or minor changes to domestic law and legal
system are each excluded from paragraphs 1.1 and 1.2.
2 Consultations
Each Member shall, as appropriate, provide for
regular consultations between its border agencies and traders or other
stakeholders located within its territory.
ARTICLE 3: ADVANCE RULINGS
1.
Each Member
shall issue an advance ruling in a reasonable, time-bound manner to the applicant
that has submitted a written request containing all necessary information. If a
Member declines to issue an advance ruling, it shall promptly notify the
applicant in writing, setting out the relevant facts and the basis for its
decision.
2.
A Member may
decline to issue an advance ruling to the applicant where the question raised
in the application:
(a) is already pending in the applicant's case before
any governmental agency, appellate tribunal, or court; or
(b)
has already been decided by any appellate
tribunal or court.
3.
The advance
ruling shall be valid for a reasonable period of time after its issuance unless
the law, facts, or circumstances supporting that ruling have changed.
4.
Where the
Member revokes, modifies, or invalidates the advance ruling, it shall provide
written notice to the applicant setting out the relevant facts and the basis
for its decision. Where a Member revokes, modifies, or invalidates advance
rulings with retroactive effect, it may only do so where the ruling was based
on incomplete, incorrect, false, or misleading information.
5.
An advance
ruling issued by a Member shall be binding on that Member in respect of the
applicant that sought it. The Member may provide that the advance ruling is
binding on the applicant.
6.
Each Member shall publish, at a minimum:
(a) the requirements for the application for an
advance ruling, including the information to be provided and the format;
(b)
the time period by which it will issue an advance
ruling; and
(b)
the length of time for which the advance ruling
is valid.
7.
Each Member
shall provide, upon written request of an applicant, a review of the advance
ruling or the decision to revoke, modify, or invalidate the advance ruling.2
8.
Each Member
shall endeavour to make publicly available any information on advance rulings
which it considers to be of significant interest to other interested parties,
taking into account the need to protect commercially confidential information.
9.
Definitions and scope:
(a) An advance ruling is a written decision provided
by a Member to the applicant prior to the importation of a good covered by the
application that sets forth the treatment that the Member shall provide to the
good at the time of importation with regard to:
(i)
the good's tariff classification; and
(ii)
the origin of the good.3
(b) In
addition to the advance rulings defined in subparagraph (a), Members are
encouraged to provide advance rulings on:
(i)
the
appropriate method or criteria, and the application thereof, to be used for
determining the customs value under a particular set of facts;
(ii) the applicability of the Member's requirements
for relief or exemption from customs duties;
(iii) the
application of the Member's requirements for quotas, including tariff quotas;
and
(iv) any additional matters for which a Member
considers it appropriate to issue an advance ruling.
(c) An applicant is an exporter, importer or any
person with a justifiable cause or a representative thereof.
(d) A Member may require that the applicant have
legal representation or registration in its territory. To the extent possible,
such requirements shall not restrict the categories of persons eligible to
apply for advance rulings, with particular consideration for the specific needs
of small and medium-sized enterprises. These requirements shall be clear and
transparent and not constitute a means of arbitrary or unjustifiable
discrimination.
ARTICLE 4: PROCEDURES FOR APPEAL OR REVIEW
1.
Each Member
shall provide that any person to whom customs issues an administrative decision4
has the right, within its territory, to:
(a) an administrative appeal to or review by an
administrative authority higher than or independent of the official or office
that issued the decision;
and/or
(b)
a judicial appeal or review of the decision.
2.
The
legislation of a Member may require that an administrative appeal or review be
initiated prior to a judicial appeal or review.
3.
Each Member
shall ensure that its procedures for appeal or review are carried out in a
non-discriminatory manner.
4.
Each Member
shall ensure that, in a case where the decision on appeal or review under
subparagraph 1(a) is not given either:
(a)
within set periods as specified in its laws or
regulations; or
(b)
without undue delay
the petitioner has the right to either further appeal
to or further review by the administrative authority or the judicial authority
or any other recourse to the judicial authority.5
5.
Each Member
shall ensure that the person referred to in paragraph 1 is provided with the
reasons for the administrative decision so as to enable such a person to have
recourse to procedures for appeal or review where necessary.
6.
Each Member is
encouraged to make the provisions of this Article applicable to an
administrative decision issued by a relevant border agency other than customs.
ARTICLE 5: OTHER MEASURES TO ENHANCE IMPARTIALITY,
NON-DISCRIMINATION
AND TRANSPARENCY
1 Notifications for enhanced controls or inspections
Where a Member adopts or maintains a system of
issuing notifications or guidance to its concerned authorities for enhancing
the level of controls or inspections at the border in respect of foods,
beverages, or feedstuffs covered under the notification or guidance for
protecting human, animal, or plant life or health within its territory, the following
disciplines shall apply to the manner of their issuance, termination, or
suspension:
(a)
the Member may, as appropriate, issue the
notification or guidance based on risk;
(b) the Member may issue the notification or guidance
so that it applies uniformly only to those points of entry where the sanitary
and phytosanitary conditions on which the notification or guidance are based
apply;
(b) the Member shall promptly terminate or suspend
the notification or guidance when circumstances giving rise to it no longer
exist, or if changed circumstances can be addressed in a less trade-restrictive
manner; and
(c) when the Member decides to terminate or suspend
the notification or guidance, it shall, as appropriate, promptly publish the
announcement of its termination or suspension in a non-discriminatory and
easily accessible manner, or inform the exporting Member or the importer.
2 Detention
A Member shall promptly inform the carrier or
importer in case of detention of goods declared for importation, for inspection
by customs or any other competent authority.
3 Test Procedures
3.1 A Member may, upon request, grant an
opportunity for a second test in case the first test result of a sample taken
upon arrival of goods declared for importation shows an adverse finding.
3.2 A Member
shall either publish, in a non-discriminatory and easily accessible manner, the
name and address of any laboratory where the test can be carried out or provide
this information to the importer when it is granted the opportunity provided
under paragraph 3.1.
3.3 A Member
shall consider the result of the second test, if any, conducted under paragraph
3.1, for the release and clearance of goods and, if appropriate, may accept the
results of such test.
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