Overeenkomst tot oprichting van de Wereldhandelsorganisatie, Marrakesh, 15-04-1994

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Overeenkomst tot oprichting van de Wereldhandelsorganisatie

Authentiek : EN

Agreement establishing the World Trade Organization

The Parties to this Agreement,

Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world's resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development,

Recognizing further that there is need for positive efforts designed to ensure that developing countries, and especially the least developed among them, secure a share in the growth in international trade commensurate with the needs of their economic development,

Being desirous of contributing to these objectives by entering into reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international trade relations,

Resolved, therefore, to develop an integrated, more viable and durable multilateral trading system encompassing the General Agreement on Tariffs and Trade, the results of past trade liberalization efforts, and all of the results of the Uruguay Round of Multilateral Trade Negotiations,

Determined to preserve the basic principles and to further the objectives underlying this multilateral trading system,

Agree as follows:

Article I. Establishment of the Organization

The World Trade Organization (hereinafter referred to as "the WTO") is hereby established.

Article II. Scope of the WTO

• 1 The WTO shall provide the common institutional framework for the conduct of trade relations among its Members in matters related to the agreements and associated legal instruments included in the Annexes to this Agreement.

• 2 The agreements and associated legal instruments included in Annexes 1, 2 and 3 (hereinafter referred to as "Multilateral Trade Agreements") are integral parts of this Agreement, binding on all Members.

• 3 The agreements and associated legal instruments included in Annex 4 (hereinafter referred to as "Plurilateral Trade Agreements") are also part of this Agreement for those Members that have accepted them, and are binding on those Members. The Plurilateral Trade Agreements do not create either obligations or rights for Members that have not accepted them.

• 4 The General Agreement on Tariffs and Trade 1994 as specified in Annex 1A (hereinafter referred to as "GATT 1994") is legally distinct from the General Agreement on Tariffs and Trade, dated 30 October 1947, annexed to the Final Act Adopted at the Conclusion of the Second Session of the Preparatory Committee of the United Nations Conference on Trade and Employment, as subsequently rectified, amended or modified (hereinafter referred to as "GATT 1947").

Article III. Functions of the WTO

• 1 The WTO shall facilitate the implementation, administration and operation, and further the objectives, of this Agreement and of the Multilateral Trade Agreements, and shall also provide the framework for the implementation, administration and operation of the Plurilateral Trade Agreements.

• 2 The WTO shall provide the forum for negotiations among its Members concerning their multilateral trade relations in matters dealt with under the agreements in the Annexes to this Agreement. The WTO may also provide a forum for further negotiations among its Members concerning their multilateral trade relations, and a framework for the implementation of the results of such negotiations, as may be decided by the Ministerial Conference.

• 3 The WTO shall administer the Understanding on Rules and Procedures Governing the Settlement of Disputes (hereinafter referred to as the "Dispute Settlement Understanding" or "DSU") in Annex 2 to this Agreement.

• 4 The WTO shall administer the Trade Policy Review Mechanism (hereinafter referred to as the "TPRM") provided for in Annex 3 to this Agreement.

• 5 With a view to achieving greater coherence in global economic policy-making, the WTO shall cooperate, as appropriate, with the International Monetary Fund and with the International Bank for Reconstruction and Development and its affiliated agencies.

Article IV. Structure of the WTO

• 1 There shall be a Ministerial Conference composed of representatives of all the Members, which shall meet at least once every two years. The Ministerial Conference shall carry out the functions of the WTO and take actions necessary to this effect. The Ministerial Conference shall have the authority to take decisions on all matters under any of the Multilateral Trade Agreements, if so requested by a Member, in accordance with the specific requirements for decision-making in this Agreement and in the relevant Multilateral Trade Agreement.

• 2 There shall be a General Council composed of representatives of all the Members, which shall meet as appropriate. In the intervals between meetings of the Ministerial Conference, its functions shall be conducted by the General Council. The General Council shall also carry out the functions assigned to it by this Agreement. The General Council shall establish its rules of procedure and approve the rules of procedure for the Committees provided for in paragraph 7.

• 3 The General Council shall convene as appropriate to discharge the responsibilities of the Dispute Settlement Body provided for in the Dispute Settlement Understanding. The Dispute Settlement Body may have its own chairman and shall establish such rules of procedure as it deems necessary for the fulfilment of those responsibilities.

• 4 The General Council shall convene as appropriate to discharge the responsibilities of the Trade Policy Review Body provided for in the TPRM. The Trade Policy Review Body may have its own chairman and shall establish such rules of procedure as it deems necessary for the fulfilment of those responsibilities.

• 5 There shall be a Council for Trade in Goods, a Council for Trade in Services and a Council for Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as the "Council for TRIPS"), which shall operate under the general guidance of the General Council. The Council for Trade in Goods shall oversee the functioning of the Multilateral Trade Agreements in Annex 1A. The Council for Trade in Services shall oversee the functioning of the General Agreement on Trade in Services (hereinafter referred to as "GATS"). The Council for TRIPS shall oversee the functioning of the Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as the "Agreement on TRIPS"). These Councils shall carry out the functions assigned to them by their respective agreements and by the General Council. They shall establish their respective rules of procedure subject to the approval of the General Council. Membership in these Councils shall be open to representatives of all Members. These Councils shall meet as necessary to carry out their functions.

• 6 The Council for Trade in Goods, the Council for Trade in Services and the Council for TRIPS shall establish subsidiary bodies as required. These subsidiary bodies shall establish their respective rules of procedure subject to the approval of their respective Councils.

• 7 The Ministerial Conference shall establish a Committee on Trade and Development, a Committee on Balance-of-Payments Restrictions and a Committee on Budget, Finance and Administration, which shall carry out the functions assigned to them by this Agreement and by the Multilateral Trade Agreements, and any additional functions assigned to them by the General Council, and may establish such additional Committees with such functions as it may deem appropriate. As part of its functions, the Committee on Trade and Development shall periodically review the special provisions in the Multilateral Trade Agreements in favour of the least-developed country Members and report to the General Council for appropriate action. Membership in these Committees shall be open to representatives of all Members.

• 8 The bodies provided for under the Plurilateral Trade Agreements shall carry out the functions assigned to them under those Agreements and shall operate within the institutional framework of the WTO. These bodies shall keep the General Council informed of their activities on a regular basis.

Article V. Relations with Other Organizations

• 1 The General Council shall make appropriate arrangements for effective cooperation with other intergovernmental organizations that have responsibilities related to those of the WTO.

• 2 The General Council may make appropriate arrangements for consultation and cooperation with non-governmental organizations concerned with matters related to those of the WTO.

Article VI. The Secretariat

• 1 There shall be a Secretariat of the WTO (hereinafter referred to as "the Secretariat") headed by a Director-General.

• 2 The Ministerial Conference shall appoint the Director-General and adopt regulations setting out the powers, duties, conditions of service and term of office of the Director-General.

• 3 The Director-General shall appoint the members of the staff of the Secretariat and determine their duties and conditions of service in accordance with regulations adopted by the Ministerial Conference.

• 4 The responsibilities of the Director-General and of the staff of the Secretariat shall be exclusively international in character. In the discharge of their duties, the Director-General and the staff of the Secretariat shall not seek or accept instructions from any government or any other authority external to the WTO. They shall refrain from any action which might adversely reflect on their position as international officials. The Members of the WTO shall respect the international character of the responsibilities of the Director-General and of the staff of the Secretariat and shall not seek to influence them in the discharge of their duties.

Article VII. Budget and Contributions

• 1 The Director-General shall present to the Committee on Budget, Finance and Administration the annual budget estimate and financial statement of the WTO. The Committee on Budget, Finance and Administration shall review the annual budget estimate and the financial statement presented by the Director-General and make recommendations thereon to the General Council. The annual budget estimate shall be subject to approval by the General Council.

• 2 The Committee on Budget, Finance and Administration shall propose to the General Council financial regulations which shall include provisions setting out:

  • a) the scale of contributions apportioning the expenses of the WTO among its Members; and

  • b) the measures to be taken in respect of Members in arrears.

  The financial regulations shall be based, as far as practicable, on the regulations and practices of GATT 1947.

• 3 The General Council shall adopt the financial regulations and the annual budget estimate by a two-thirds majority comprising more than half of the Members of the WTO.

• 4 Each Member shall promptly contribute to the WTO its share in the expenses of the WTO in accordance with the financial regulations adopted by the General Council.

Article VIII. Status of the WTO

• 1 The WTO shall have legal personality, and shall be accorded by each of its Members such legal capacity as may be necessary for the exercise of its functions.

• 2 The WTO shall be accorded by each of its Members such privileges and immunities as are necessary for the exercise of its functions.

• 3 The officials of the WTO and the representatives of the Members shall similarly be accorded by each of its Members such privileges and immunities as are necessary for the independent exercise of their functions in connection with the WTO.

• 4 The privileges and immunities to be accorded by a Member to the WTO, its officials, and the representatives of its Members shall be similar to the privileges and immunities stipulated in the Convention on the Privileges and Immunities of the Specialized Agencies, approved by the General Assembly of the United Nations on 21 November 1947.

• 5 The WTO may conclude a headquarters agreement.

Article IX. Decision-Making

• 1 The WTO shall continue the practice of decision-making by consensus followed under GATT 1947.1 Except as otherwise provided, where a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting. At meetings of the Ministerial Conference and the General Council, each Member of the WTO shall have one vote. Where the European Communities exercise their right to vote, they shall have a number of votes equal to the number of their member States2 which are Members of the WTO. Decisions of the Ministerial Conference and the General Council shall be taken by a majority of the votes cast, unless otherwise provided in this Agreement or in the relevant Multilateral Trade Agreement.3

• 2 The Ministerial Conference and the General Council shall have the exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade Agreements. In the case of an interpretation of a Multilateral Trade Agreement in Annex 1, they shall exercise their authority on the basis of a recommendation by the Council overseeing the functioning of that Agreement. The decision to adopt an interpretation shall be taken by a three-fourths majority of the Members. This paragraph shall not be used in a manner that would undermine the amendment provisions in Article X.

• 3 In exceptional circumstances, the Ministerial Conference may decide to waive an obligation imposed on a Member by this Agreement or any of the Multilateral Trade Agreements, provided that any such decision shall be taken by three fourths4of the Members unless otherwise provided for in this paragraph.

  • a) A request for a waiver concerning this Agreement shall be submitted to the Ministerial Conference for consideration pursuant to the practice of decision-making by consensus. The Ministerial Conference shall establish a time-period, which shall not exceed 90 days, to consider the request. If consensus is not reached during the time-period, any decision to grant a waiver shall be taken by three fourths5of the Members.

  • b) A request for a waiver concerning the Multilateral Trade Agreements in Annexes 1A or IB or 1C and their annexes shall be submitted initially to the Council for Trade in Goods, the Council for Trade in Services or the Council for TRIPS, respectively, for consideration during a time-period which shall not exceed 90 days. At the end of the timeperiod, the relevant Council shall submit a report to the Ministerial Conference.

• 4 A decision by the Ministerial Conference granting a waiver shall state the exceptional circumstances justifying the decision, the terms and conditions governing the application of the waiver, and the date on which the waiver shall terminate. Any waiver granted for a period of more than one year shall be reviewed by the Ministerial Conference not later than one year after it is granted, and thereafter annually until the waiver terminates. In each review, the Ministerial Conference shall examine whether the exceptional circumstances justifying the waiver still exist and whether the terms and conditions attached to the waiver have been met. The Ministerial Conference, on the basis of the annual review, may extend, modify or terminate the waiver.

• 5 Decisions under a Plurilateral Trade Agreement, including any decisions on interpretations and waivers, shall be governed by the provisions of that Agreement.

Article X. Amendments

• 1 Any Member of the WTO may initiate a proposal to amend the provisions of this Agreement or the Multilateral Trade Agreements in Annex 1 by submitting such proposal to the Ministerial Conference. The Councils listed in paragraph 5 of Article IV may also submit to the Ministerial Conference proposals to amend the provisions of the corresponding Multilateral Trade Agreements in Annex 1 the functioning of which they oversee. Unless the Ministerial Conference decides on a longer period, for a period of 90 days after the proposal has been tabled formally at the Ministerial Conference any decision by the Ministerial Conference to submit the proposed amendment to the Members for acceptance shall be taken by consensus. Unless the provisions of paragraphs 2, 5 or 6 apply, that decision shall specify whether the provisions of paragraphs 3 or 4 shall apply. If consensus is reached, the Ministerial Conference shall forthwith submit the proposed amendment to the Members for acceptance. If consensus is not reached at a meeting of the Ministerial Conference within the established period, the Ministerial Conference shall decide by a two-thirds majority of the Members whether to submit the proposed amendment to the Members for acceptance. Except as provided in paragraphs 2, 5 and 6, the provisions of paragraph 3 shall apply to the proposed amendment, unless the Ministerial Conference decides by a three-fourths majority of the Members that the provisions of paragraph 4 shall apply

• 2 Amendments to the provisions of this Article and to the provisions of the following Articles shall take effect only upon acceptance by all Members:

  Article IX of this Agreement

  Articles I and II of GATT 1994

  Article II: 1 of GATS

  Article 4 of the Agreement on TRIPS.

• 3 Amendments to provisions of this Agreement, or of the Multilateral Trade Agreements in Annexes 1A and 1C, other than those listed in paragraphs 2 and 6, of a nature that would alter the rights and obligations of the Members, shall take effect for the Members that have accepted them upon acceptance by two thirds of the Members and thereafter for each other Member upon acceptance by it. The Ministerial Conference may decide by a three-fourths majority of the Members that any amendment made effective under this paragraph is of such a nature that any Member which has not accepted it within a period specified by the Ministerial Conference in each case shall be free to withdraw from the WTO or to remain a Member with the consent of the Ministerial Conference.

• 4 Amendments to provisions of this Agreement or of the Multilateral Trade Agreements in Annexes 1A and 1C, other than those listed in paragraphs 2 and 6, of a nature that would not alter the rights and obligations of the Members, shall take effect for all Members upon acceptance by two thirds of the Members.

• 5 Except as provided in paragraph 2 above, amendments to Parts I, II and III of GATS and the respective annexes shall take effect for the Members that have accepted them upon acceptance by two thirds of the Members and thereafter for each Member upon acceptance by it. The Ministerial Conference may decide by a three-fourths majority of the Members that any amendment made effective under the preceding provision is of such a nature that any Member which has not accepted it within a period specified by the Ministerial Conference in each case shall be free to withdraw from the WTO or to remain a Member with the consent of the Ministerial Conference. Amendments to Parts IV, V and VI of GATS and the respective annexes shall take effect for all Members upon acceptance by two thirds of the Members.

• 6 Notwithstanding the other provisions of this Article, amendments to the Agreement on TRIPS meeting the requirements of paragraph 2 of Article 71 thereof may be adopted by the Ministerial Conference without further formal acceptance process.

• 7 Any Member accepting an amendment to this Agreement or to a Multilateral Trade Agreement in Annex 1 shall deposit an instrument of acceptance with the Director-General of the WTO within the period of acceptance specified by the Ministerial Conference.

• 8 Any Member of the WTO may initiate a proposal to amend the provisions of the Multilateral Trade Agreements in Annexes 2 and 3 by submitting such proposal to the Ministerial Conference. The decision to approve amendments to the Multilateral Trade Agreement in Annex 2 shall be made by consensus and these amendments shall take effect for all Members upon approval by the Ministerial Conference. Decisions to approve amendments to the Multilateral Trade Agreement in Annex 3 shall take effect for all Members upon approval by the Ministerial Conference.

• 9 The Ministerial Conference, upon the request of the Members parties to a trade agreement, may decide exclusively by consensus to add that agreement to Annex 4. The Ministerial Conference, upon the request of the Members parties to a Plurilateral Trade Agreement, may decide to delete that Agreement from Annex 4.

• 10 Amendments to a Plurilateral Trade Agreement shall be governed by the provisions of that Agreement.

Article XI. Original Membership

• 1 The contracting parties to GATT 1947 as of the date of entry into force of this Agreement, and the European Communities, which accept this Agreement and the Multilateral Trade Agreements and for which Schedules of Concessions and Commitments are annexed to GATT 1994 and for which Schedules of Specific Commitments are annexed to GATS shall become original Members of the WTO.

• 2 The least-developed countries recognized as such by the United Nations will only be required to undertake commitments and concessions to the extent consistent with their individual development, financial and trade needs or their administrative and institutional capabilities.

Article XII. Accession

• 1 Any State or separate customs territory possessing full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement and the Multilateral Trade Agreements may accede to this Agreement, on terms to be agreed between it and the WTO. Such accession shall apply to this Agreement and the Multilateral Trade Agreements annexed thereto.

• 2 Decisions on accession shall be taken by the Ministerial Conference. The Ministerial Conference shall approve the agreement on the terms of accession by a two-thirds majority of the Members of the WTO.

• 3 Accession to a Plurilateral Trade Agreement shall be governed by the provisions of that Agreement.

Article XIII. Non-Application of Multilateral Trade Agreements between Particular Members

• 1 This Agreement and the Multilateral Trade Agreements in Annexes 1 and 2 shall not apply as between any Member and any other Member if either of the Members, at the time either becomes a Member, does not consent to such application.

• 2 Paragraph 1 may be invoked between original Members of the WTO which were contracting parties to GATT 1947 only where Article XXXV of that Agreement had been invoked earlier and was effective as between those contracting parties at the time of entry into force for them of this Agreement.

• 3 Paragraph 1 shall apply between a Member and another Member which has acceded under Article XII only if the Member not consenting to the application has so notified the Ministerial Conference before the approval of the agreement on the terms of accession by the Ministerial Conference.

• 4 The Ministerial Conference may review the operation of this Article in particular cases at the request of any Member and make appropriate recommendations.

• 5 Non-application of a Plurilateral Trade Agreement between parties to that Agreement shall be governed by the provisions of that Agreement.

Article XIV. Acceptance, Entry into Force and Deposit

• 1 This Agreement shall be open for acceptance, by signature or otherwise, by contracting parties to GATT 1947, and the European Communities, which are eligible to become original Members of the WTO in accordance with Article XI of this Agreement. Such acceptance shall apply to this Agreement and the Multilateral Trade Agreements annexed hereto. This Agreement and the Multilateral Trade Agreements annexed hereto shall enter into force on the date determined by Ministers in accordance with paragraph 3 of the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations and shall remain open for acceptance for a period of two years following that date unless the Ministers decide otherwise. An acceptance following the entry into force of this Agreement shall enter into force on the 30th day following the date of such acceptance.

• 2 A Member which accepts this Agreement after its entry into force shall implement those concessions and obligations in the Multilateral Trade Agreements that are to be implemented over a period of time starting with the entry into force of this Agreement as if it had accepted this Agreement on the date of its entry into force.

• 3 Until the entry into force of this Agreement, the text of this Agreement and the Multilateral Trade Agreements shall be deposited with the Director-General to the CONTRACTING PARTIES to GATT 1947. The Director-General shall promptly furnish a certified true copy of this Agreement and the Multilateral Trade Agreements, and a notification of each acceptance thereof, to each government and the European Communities having accepted this Agreement. This Agreement and the Multilateral Trade Agreements, and any amendments thereto, shall, upon the entry into force of this Agreement, be deposited with the Director-General of the WTO.

• 4 The acceptance and entry into force of a Plurilateral Trade Agreement shall be governed by the provisions of that Agreement. Such Agreements shall be deposited with the Director-General to the CONTRACTING PARTIES to GATT 1947. Upon the entry into force of this Agreement, such Agreements shall be deposited with the Director-General of the WTO.

Article XV. Withdrawal

• 1 Any Member may withdraw from this Agreement. Such withdrawal shall apply both to this Agreement and the Multilateral Trade Agreements and shall take effect upon the expiration of six months from the date on which written notice of withdrawal is received by the Director-General of the WTO.

• 2 Withdrawal from a Plurilateral Trade Agreement shall be governed by the provisions of that Agreement.

Article XVI. Miscellaneous Provisions

• 1 Except as otherwise provided under this Agreement or the Multilateral Trade Agreements, the WTO shall be guided by the decisions, procedures and customary practices followed by the CONTRACTING PARTIES to GATT 1947 and the bodies established in the framework of GATT 1947.

• 2 To the extent practicable, the Secretariat of GATT 1947 shall become the Secretariat of the WTO, and the Director-General to the CONTRACTING PARTIES to GATT 1947, until such time as the Ministerial Conference has appointed a Director-General in accordance with paragraph 2 of Article VI of this Agreement, shall serve as Director-General of the WTO.

• 3 In the event of a conflict between a provision of this Agreement and a provision of any of the Multilateral Trade Agreements, the provision of this Agreement shall prevail to the extent of the conflict.

• 4 Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements.

• 5 No reservations may be made in respect of any provision of this Agreement. Reservations in respect of any of the provisions of the Multilateral Trade Agreements may only be made to the extent provided for in those Agreements. Reservations in respect of a provision of a Plurilateral Trade Agreement shall be governed by the provisions of that Agreement.

• 6 This Agreement shall be registered in accordance with the provisions of Article 102 of the Charter of the United Nations.

DONE at Marrakesh this fifteenth day of April one thousand nine hundred and ninety-four, in a single copy, in the English, French and Spanish languages, each text being authentic.

Explanatory Notes:

The terms "country" or "countries" as used in this Agreement and the Multilateral Trade Agreements are to be understood to include any separate customs territory Member of the WTO.

In the case of a separate customs territory Member of the WTO, where an expression in this Agreement and the Multilateral Trade Agreements is qualified by the term "national", such expression shall be read as pertaining to that customs territory, unless otherwise specified.

List of annexes

ANNEX 1

ANNEX 1A: Multilateral Agreements on Trade in Goods

General Agreement on Tariffs and Trade 1994

Agreement on Agriculture

Agreement on the Application of Sanitary and Phytosanitary Measures

Agreement on Textiles and Clothing

Agreement on Technical Barriers to Trade

Agreement on Trade-Related Investment Measures

Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994

Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994

Agreement on Preshipment Inspection

Agreement on Rules of Origin

Agreement on Import Licensing Procedures

Agreement on Subsidies and Countervailing Measures

Agreement on Safeguards

ANNEX 1B: General Agreement on Trade in Services and Annexes

ANNEX 1C : Agreement on Trade-Related Aspects of Intellectual Property Rights

ANNEX 2

Understanding on Rules and Procedures Governing the Settlement of Disputes

ANNEX 3

Trade Policy Review Mechanism

ANNEX 4

Plurilateral Trade Agreements

Agreement on Trade in Civil Aircraft

Agreement on Government Procurement

International Dairy Agreement

International Bovine Meat Agreement

ANNEX 1

ANNEX 1A

MULTILATERAL AGREEMENTS ON TRADE IN GOODS General interpretative note to Annex 1A:

In the event of conflict between a provision of the General Agreement on Tariffs and Trade 1994 and a provision of another agreement in Annex 1A to the Agreement Establishing the World Trade Organization (referred to in the agreements in Annex 1A as the "WTO Agreement"), the provision of the other agreement shall prevail to the extent of the conflict.

General Agreement on Tariffs and Trade 1994

1. The General Agreement on Tariffs and Trade 1994 ("GATT 1994") shall consist of:

• a the provisions in the General Agreement on Tariffs and Trade, dated 30 October 1947, annexed to the Final Act Adopted at the Conclusion of the Second Session of the Preparatory Committee of the United Nations Conference on Trade and Employment (excluding the Protocol of Provisional Application), as rectified, amended or modified by the terms of legal instruments which have entered into force before the date of entry into force of the WTO Agreement;

• b the provisions of the legal instruments set forth below that have entered into force under the GATT 1947 before the date of entry into force of the WTO Agreement:

  • i) protocols and certifications relating to tariff concessions;

  • ii) protocols of accession (excluding he provisions(a) concerning provisional application and withdrawal of provisional application and (b) providing that Part II of GATT 1947 shall be applied provisionally to the fullest extent not inconsistent with legislation existing on the date of the Protocol);

  • iii) decisions on waivers granted under Article XXV of GATT 1947 and still in force on the date of entry into force of the WTO Agreement6;

  • iv) other decisions of the CONTRACTING PARTIES to GATT 1947;

• c the Understandings set forth below:

  • i) Understanding on the Interpretation of Article II:1(b) of the General Agreement on Tariffs and Trade 1994;

  • ii) Understanding on the Interpretation of Article XVII of the General Agreement on Tariffs and Trade 1994;

  • iii) Understanding on Balance-of-Payments Provisions of the General Agreement on Tariffs and Trade 1994;

  • iv) Understanding on the Interpretation of Article XXIV of the General Agreement on Tariffs and Trade 1994;

  • v) Understanding in Respect of Waivers of Obligations under the General Agreement on Tariffs and Trade 1994;

  • vi) Understanding on the Interpretation of Article XXVIII of the General Agreement on Tariffs and Trade 1994; and

• d the Marrakesh Protocol to GATT 1994.

2. Explanatory Notes

• a The references to "contracting party" in the provisions of GATT 1994 shall be deemed to read "Member". The references to "less-developed contracting party" and "developed contracting party" shall be deemed to read "developing country Member" and "developed country Member". The references to "Executive Secretary" shall be deemed to read "Director-General of the WTO".

• b The references to the CONTRACTING PARTIES acting jointly in Articles XV:1, XV:2, XV:8, XXXVIII and the Notes Ad Article XII and XVIII; and in the provisions on special exchange agreements in Articles XV:2, XV:3, XV:6, XV:7 and XV:9 of GATT 1994 shall be deemed to be references to the WTO. The other functions that the provisions of GATT 1994 assign to the CONTRACTING PARTIES acting jointly shall be allocated by the Ministerial Conference.

• c

  • i) The text of GATT 1994 shall be authentic in English, French and Spanish.

  • ii) The text of GATT 1994 in the French language shall be subject to the rectifications of terms indicated in Annex A to document MTN.TNC/41.

  • iii) The authentic text of GATT 1994 in the Spanish language shall be the text in Volume IV of the Basic Instruments and Selected Documents series, subject to the rectifications of terms indicated in Annex B to document MTN.TNC/41.

3.

• a) The provisions of Part II of GATT 1994 shall not apply to measures taken by a Member under specific mandatory legislation, enacted by that Member before it became a contracting party to GATT 1947, that prohibits the use, sale or lease of foreign-built or foreign-reconstructed vessels in commercial applications between points in national waters or the waters of an exclusive economic zone. This exemption applies to: (a) the continuation or prompt renewal of a nonconforming provision of such legislation; and (b) the amendment to a non-conforming provision of such legislation to the extent that the amendment does not decrease the conformity of the provision with Part II of GATT 1947. This exemption is limited to measures taken under legislation described above that is notified and specified prior to the date of entry into force of the WTO Agreement. If such legislation is subsequently modified to decrease its conformity with Part II of GATT 1994, it will no longer qualify for coverage under this paragraph.

• b) The Ministerial Conference shall review this exemption not later than five years after the date of entry into force of the WTO Agreement and thereafter every two years for as long as the exemption is in force for the purpose of examining whether the conditions which created the need for the exemption still prevail.

• c) A Member whose measures are covered by this exemption shall annually submit a detailed statistical notification consisting of a fiveyear moving average of actual and expected deliveries of relevant vessels as well as additional information on the use, sale, lease or repair of relevant vessels covered by this exemption.

• d) A Member that considers that this exemption operates in such a manner as to justify a reciprocal and proportionate limitation on the use, sale, lease or repair of vessels constructed in the territory of the Member invoking the exemption shall be free to introduce such a limitation subject to prior notification to the Ministerial Conference.

• e) This exemption is without prejudice to solutions concerning specific aspects of the legislation covered by this exemption negotiated in sectoral agreements or in other fora.

Understanding on the interpretation of Article II:1(b) of the General Agreement on Tariffs and Trade 1994

Members hereby agree as follows:

1.

In order to ensure transparency of the legal rights and obligations deriving from paragraph l(b) of Article II, the nature and level of any "other duties or charges" levied on bound tariff items, as referred to in that provision, shall be recorded in the Schedules of concessions annexed to GATT 1994 against the tariff item to which they apply. It is understood that such recording does not change the legal character of "other duties or charges".

2.

The date as of which "other duties or charges" are bound, for the purposes of Article II, shall be 15 April 1994. "Other duties or charges" shall therefore be recorded in the Schedules at the levels applying on this date. At each subsequent renegotiation of a concession or negotiation of a new concession the applicable date for the tariff item in question shall become the date of the incorporation of the new concession in the appropriate Schedule. However, the date of the instrument by which a concession on any particular tariff item was first incorporated into GATT 1947 or GATT 1994 shall also continue to be recorded in column 6 of the Loose-Leaf Schedules.

3.

"Other duties or charges" shall be recorded in respect of all tariff bindings.

4.

Where a tariff item has previously been the subject of a concession, the level of "other duties or charges" recorded in the appropriate Schedule shall not be higher than the level obtaining at the time of the first incorporation of the concession in that Schedule. It will be open to any Member to challenge the existence of an "other duty or charge", on the ground that no such "other duty or charge" existed at the time of the original binding of the item in question, as well as the consistency of the recorded level of any "other duty or charge" with the previously bound level, for a period of three years after the date of entry into force of the WTO Agreement or three years after the date of deposit with the Director-General of the WTO of the instrument incorporating the Schedule in question into GATT 1994, if that is a later date.

5.

The recording of "other duties or charges" in the Schedules is without prejudice to their consistency with rights and obligations under GATT 1994 other than those affected by paragraph 4. All Members retain the right to challenge, at any time, the consistency of any "other duty or charge" with such obligations.

6.

For the purposes of this Understanding, the provisions of Articles XXII and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding shall apply.

7.

"Other duties or charges" omitted from a Schedule at the time of deposit of the instrument incorporating the Schedule in question into GATT 1994 with, until the date of entry into force of the WTO Agreement, the Director-General to the CONTRACTING PARTIES to GATT 1947 or, thereafter, with the Director-General of the WTO, shall not subsequently be added to it and any "other duty or charge" recorded at a level lower than that prevailing on the applicable date shall not be restored to that level unless such additions or changes are made within six months of the date of deposit of the instrument.

8.

The decision in paragraph 2 regarding the date applicable to each concession for the purposes of paragraph l(b) of Article II of GATT 1994 supersedes the decision regarding the applicable date taken on 26 March 1980 (BISD 27S/24).

Understanding on the interpretation of Article XVII of the General Agreement on tariffs and Trade 1994

Members,

Noting that Article XVII provides for obligations on Members in respect of the activities of the state trading enterprises referred to in paragraph 1 of Article XVII, which are required to be consistent with the general principles of non-discriminatory treatment prescribed in GATT 1994 for governmental measures affecting imports or exports by private traders;

Noting further that Members are subject to their GATT 1994 obligations in respect of those governmental measures affecting state trading enterprises;

Recognizing that this Understanding is without prejudice to the substantive disciplines prescribed in Article XVII;

Hereby agree as follows:

1.

In order to ensure the transparency of the activities of state trading enterprises, Members shall notify such enterprises to the Council for Trade in Goods, for review by the working party to be set up under paragraph 5, in accordance with the following working definition:

"Governmental and non-governmental enterprises, including marketing boards, which have been granted exclusive or special rights or privileges, including statutory or constitutional powers, in the exercise of which they influence through their purchases or sales the level or direction of imports or exports."

This notification requirement does not apply to imports of products for immediate or ultimate consumption in governmental use or in use by an enterprise as specified above and not otherwise for resale or use in the production of goods for sale.

2.

Each Member shall conduct a review of its policy with regard to the submission of notifications on state trading enterprises to the Council for Trade in Goods, taking account of the provisions of this Understanding. In carrying out such a review, each Member should have regard to the need to ensure the maximum transparency possible in its notifications so as to permit a clear appreciation of the manner of operation of the enterprises notified and the effect of their operations on international trade.

3.

Notifications shall be made in accordance with the questionnaire on state trading adopted on 24 May 1960 (BISD 9S/184-185), it being understood that Members shall notify the enterprises referred to in paragraph 1 whether or not imports or exports have in fact taken place.

4.

Any Member which has reason to believe that another Member has not adequately met its notification obligation may raise the matter with the Member concerned. If the matter is not satisfactorily resolved it may make a counter-notification to the Council for Trade in Goods, for consideration by the working party set up under paragraph 5, simultaneously informing the Member concerned.

5.

A working party shall be set up, on behalf of the Council for Trade in Goods, to review notifications and counter-notifications. In the light of this review and without prejudice to paragraph 4(c) of Article XVII, the Council for Trade in Goods may make recommendations with regard to the adequacy of notifications and the need for further information. The working party shall also review, in the light of the notifications received, the adequacy of the above-mentioned questionnaire on state trading and the coverage of state trading enterprises notified under paragraph I. It shall also develop an illustrative list showing the kinds of relationships between governments and enterprises, and the kinds of activities, engaged in by these enterprises, which may be relevant for the purposes of Article XVII. It is understood that the Secretariat will provide a general background paper for the working party on the operations of state trading enterprises as they relate to international trade. Membership of the working party shall be open to all Members indicating their wish to serve on it. It shall meet within a year of the date of entry into force of the WTO Agreement and thereafter at least once a year. It shall report annually to the Council for Trade in Goods.7

Understanding on the balance-of-payments provisions of the General Agreement on tariffs and Trade 1994

Members,

Recognizing the provisions of Articles XII and XVIII:B of GATT 1994 and of the Declaration on Trade Measures Taken for Balance-of-Payments Purposes adopted on 28 November 1979 (BISD 26S/205-209, referred to in this Understanding as the "1979 Declaration") and in order to clarify such provisions8;

Hereby agree as follows:

Application of Measures

1.

Members confirm their commitment to announce publicly, as soon as possible, time-schedules for the removal of restrictive import measures taken for balance-of-payments purposes. It is understood that such time-schedules may be modified as appropriate to take into account changes in the balance-of-payments situation. Whenever a time-schedule is not publicly announced by a Member, that Member shall provide justification as to the reasons therefor.

2.

Members confirm their commitment to give preference to those measures which have the least disruptive effect on trade. Such measures (referred to in this Understanding as “price-based measures”) shall be understood to include import surcharges, import deposit requirements or other equivalent trade measures with an impact on the price of imported goods. It is understood that, notwithstanding the provisions of Article II, price-based measures taken for balance-of-payments purposes may be applied by a Member in excess of the duties inscribed in the Schedule of that Member. Furthermore, that Member shall indicate the amount by which the price-based measure exceeds the bound duty clearly and separately under the notification procedures of this Understanding.

3.

Members shall seek to avoid the imposition of new quantitative restrictions for balance-of-payments purposes unless, because of a critical balance-of-payments situation, price-based measures cannot arrest a sharp deterioration in the external payments position. In those cases in which a Member applies quantitative restrictions, it shall provide justification as to the reasons why price-based measures are not an adequate instrument to deal with the balance-of-payments situation. A Member maintaining quantitative restrictions shall indicate in successive consultations the progress made in significantly reducing the incidence and restrictive effect of such measures. It is understood that not more than one type of restrictive import measure taken for balance-of-payments purposes may be applied on the same product.

4.

Members confirm that restrictive import measures taken for balance-of-payments purposes may only be applied to control the general level of imports and may not exceed what is necessary to address the balance-of-payments situation. In order to minimize any incidental protective effects, a Member shall administer restrictions in a transparent manner. The authorities of the importing Member shall provide adequate justification as to the criteria used to determine which products are subject to restriction. As provided in paragraph 3 of Article XII and paragraph 10 of Article XVIII, Members may, in the case of certain essential products, exclude or limit the application of surcharges applied across the board or other measures applied for balance-of-payments purposes. The term “essential products” shall be understood to mean products which meet basic consumption needs or which contribute to the Member's effort to improve its balance-of-payments situation, such as capital goods or inputs needed for production. In the administration of quantitative restrictions, a Member shall use discretionary licensing only when unavoidable and shall phase it out progressively. Appropriate justification shall be provided as to the criteria used to determine allowable import quantities or values.

Procedures for Balance-of-Payments Consultations

5.

The Committee on Balance-of-Payments Restrictions (referred to in this Understanding as the “Committee”) shall carry out consultations in order to review all restrictive import measures taken for balance-of-payments purposes. The membership of the Committee is open to all Members indicating their wish to serve on it. The Committee shall follow the procedures for consultations on balance-of-payments restrictions approved on 28 April 1970 (BISD 18S/48-53, referred to in this Understanding as “full consultation procedures”), subject to the provisions set out below.

6.

A Member applying new restrictions or raising the general level of its existing restrictions by a substantial intensification of the measures shall enter into consultations with the Committee within four months of the adoption of such measures. The Member adopting such measures may request that a consultation be held under paragraph 4(a) of Article XII or paragraph 12(a) of Article XVIII as appropriate. If no such request has been made, the Chairman of the Committee shall invite the Member to hold such a consultation. Factors that may be examined in the consultation would include, inter alia, the introduction of new types of restrictive measures for balance-of-payments purposes, or an increase in the level or product coverage of restrictions.

7.

All restrictions applied for balance-of-payments purposes shall be subject to periodic review in the Committee under paragraph 4(b) of Article XII or under paragraph 12(b) of Article XVIII, subject to the possibility of altering the periodicity of consultations in agreement with the consulting Member or pursuant to any specific review procedure that may be recommended by the General Council.

8.

Consultations may be held under the simplified procedures approved on 19 December 1972 (BISD 20S/47-49, referred to in this Understanding as “simplified consultation procedures”) in the case of least-developed country Members or in the case of developing country Members which are pursuing liberalization efforts in conformity with the schedule presented to the Committee in previous consultations. Simplified consultation procedures may also be used when the Trade Policy Review of a developing country Member is scheduled for the same calendar year as the date fixed for the consultations. In such cases the decision as to whether full consultation procedures should be used will be made on the basis of the factors enumerated in paragraph 8 of the 1979 Declaration. Except in the case of least-developed country Members, no more than two successive consultations may be held under simplified consultation procedures.

Notification and Documentation

9.

A Member shall notify to the General Council the introduction of or any changes in the application of restrictive import measures taken for balance-of-payments purposes, as well as any modifications in time-schedules for the removal of such measures as announced under paragraph 1. Significant changes shall be notified to the General Council prior to or not later than 30 days after their announcement. On a yearly basis, each Member shall make available to the Secretariat a consolidated notification, including all changes in laws, regulations, policy statements or public notices, for examination by Members. Notifications shall include full information, as far as possible, at the tariff-line level, on the type of measures applied, the criteria used for their administration, product coverage and trade flows affected.

10.

At the request of any Member, notifications may be reviewed by the Committee. Such reviews would be limited to the clarification of specific issues raised by a notification or examination of whether a consultation under paragraph 4(a) of Article XII or paragraph 12(a) of Article XVIII is required. Members which have reasons to believe that a restrictive import measure applied by another Member was taken for balance-of-payments purposes may bring the matter to the attention of the Committee. The Chairman of the Committee shall request information on the measure and make it available to all Members. Without prejudice to the right of any member of the Committee to seek appropriate clarifications in the course of consultations, questions may be submitted in advance for consideration by the consulting Member.

11.

The consulting Member shall prepare a Basic Document for the consultations which, in addition to any other information considered to be relevant, should include: a) an overview of the balance-of-payments situation and prospects, including a consideration of the internal and external factors having a bearing on the balance-of-payments situation and the domestic policy measures taken in order to restore equilibrium on a sound and lasting basis; b) a full description of the restrictions applied for balance-of-payments purposes, their legal basis and steps taken to reduce incidental protective effects; c) measures taken since the last consultation to liberalize import restrictions, in the light of the conclusions of the Committee; d) a plan for the elimination and progressive relaxation of remaining restrictions. References may be made, when relevant, to the information provided in other notifications or reports made to the WTO. Under simplified consultation procedures, the consulting Member shall submit a written statement containing essential information on the elements covered by the Basic Document.

12.

The Secretariat shall, with a view to facilitating the consultations in the Committee, prepare a factual background paper dealing with the different aspects of the plan for consultations. In the case of developing country Members, the Secretariat document shall include relevant background and analytical material on the incidence of the external trading environment on the balance-of-payments situation and prospects of the consulting Member. The technical assistance services of the Secretariat shall, at the request of a developing country Member, assist in preparing the documentation for the consultations.

Conclusions of Balance-of-Payments Consultations

13.

The Committee shall report on its consultations to the General Council. When full consultation procedures have been used, the report should indicate the Committee's conclusions on the different elements of the plan for consultations, as well as the facts and reasons on which they are based. The Committee shall endeavour to include in its conclusions proposals for recommendations aimed at promoting the implementation of Articles XII and XVIII:B, the 1979 Declaration and this Understanding. In those cases in which a time-schedule has been presented for the removal of restrictive measures taken for balance-of-payments purposes, the General Council may recommend that, in adhering to such a time schedule, a Member shall be deemed to be in compliance with its GATT 1994 obligations. Whenever the General Council has made specific recommendations, the rights and obligations of Members shall be assessed in the light of such recommendations. In the absence of specific proposals for recommendations by the General Council, the Committee's conclusions should record the different views expressed in the Committee. When simplified consultation procedures have been used, the report shall include a summary of the main elements discussed in the Committee and a decision on whether full consultation procedures are required.

Understanding on the interpretation of Article XXIV of the General Agreement on Tariffs and Trade 1994

Members,

Having regard to the provisions of Article XXIV of GATT 1994;

Recognizing that customs unions and free trade areas have greatly increased in number and importance since the establishment of GATT 1947 and today cover a significant proportion of world trade;

Recognizing the contribution to the expansion of world trade that may be made by closer integration between the economies of the parties to such agreements;

Recognizing also that such contribution is increased if the elimination between the constituent territories of duties and other restrictive regulations of commerce extends to all trade, and diminished if any major sector of trade is excluded;

Reaffirming that the purpose of such agreements should be to facilitate trade between the constituent territories and not to raise barriers to the trade of other Members with such territories; and that in their formation or enlargement the parties to them should to the greatest possible extent avoid creating adverse effects on the trade of other Members;

Convinced also of the need to reinforce the effectiveness of the role of the Council for Trade in Goods in reviewing agreements notified under Article XXIV, by clarifying the criteria and procedures for the assessment of new or enlarged agreements, and improving the transparency of all Article XXIV agreements;

Recognizing the need for a common understanding of the obligations of Members under paragraph 12 of Article XXIV;

Hereby agree as follows:

1.

Customs unions, free-trade areas, and interim agreements leading to the formation of a customs union or free-trade area, to be consistent with Article XXIV, must satisfy, inter alia, the provisions of paragraphs 5, 6, 7 and 8 of that Article.

Article XXIV:5

2.

The evaluation under paragraph 5(a) of Article XXIV of the general incidence of the duties and other regulations of commerce applicable before and after the formation of a customs union shall in respect of duties and charges be based upon an overall assessment of weighted average tariff rates and of customs duties collected. This assessment shall be based on import statistics for a previous representative period to be supplied by the customs union, on a tariff-line basis and in values and quantities, broken down by WTO country of origin. The Secretariat shall compute the weighted average tariff rates and customs duties collected in accordance with the methodology used in the assessment of tariff offers in the Uruguay Round of Multilateral Trade Negotiations. For this purpose, the duties and charges to be taken into consideration shall be the applied rates of duty. It is recognized that for the purpose of the overall assessment of the incidence of other regulations of commerce for which quantification and aggregation are difficult, the examination of individual measures, regulations, products covered and trade flows affected may be required.

3.

The “reasonable length of time” referred to in paragraph 5(c) of Article XXIV should exceed 10 years only in exceptional cases. In cases where Members parties to an interim agreement believe that 10 years would be insufficient they shall provide a full explanation to the Council for Trade in Goods of the need for a longer period.

Article XXIV:6

4.

Paragraph 6 of Article XXIV establishes the procedure to be followed when a Member forming a customs union proposes to increase a bound rate of duty. In this regard Members reaffirm that the procedure set forth in Article XXVIII, as elaborated in the guidelines adopted on 10 November 1980 (BISD 27S/26-28) and in the Understanding on the Interpretation of Article XXVIII of GATT 1994, must be commenced before tariff concessions are modified or withdrawn upon the formation of a customs union or an interim agreement leading to the formation of a customs union.

5.

These negotiations will be entered into in good faith with a view to achieving mutually satisfactory compensatory adjustment. In such negotiations, as required by paragraph 6 of Article XXIV, due account shall be taken of reductions of duties on the same tariff line made by other constituents of the customs union upon its formation. Should such reductions not be sufficient to provide the necessary compensatory adjustment, the customs union would offer compensation, which may take the form of reductions of duties on other tariff lines. Such an offer shall be taken into consideration by the Members having negotiating rights in the binding being modified or withdrawn. Should the compensatory adjustment remain unacceptable, negotiations should be continued. Where, despite such efforts, agreement in negotiations on compensatory adjustment under Article XXVIII as elaborated by the Understanding on the Interpretation of Article XXVIII of GATT 1994 cannot be reached within a reasonable period from the initiation of negotiations, the customs union shall, nevertheless, be free to modify or withdraw the concessions; affected Members shall then be free to withdraw substantially equivalent concessions in accordance with Article XXVIII.

6.

GATT 1994 imposes no obligation on Members benefiting from a reduction of duties consequent upon the formation of a customs union, or an interim agreement leading to the formation of a customs union, to provide compensatory adjustment to its constituents.

Review of Customs Unions and Free-Trade Areas

7.

All notifications made under paragraph 7(a) of Article XXIV shall be examined by a working party in the light of the relevant provisions of GATT 1994 and of paragraph 1 of this Understanding. The working party shall submit a report to the Council for Trade in Goods on its findings in this regard. The Council for Trade in Goods may make such recommendations to Members as it deems appropriate.

8.

In regard to interim agreements, the working party may in its report make appropriate recommendations on the proposed time-frame and on measures required to complete the formation of the customs union or free-trade area. It may if necessary provide for further review of the agreement.

9.

Members parties to an interim agreement shall notify substantial changes in the plan and schedule included in that agreement to the Council for Trade in Goods and, if so requested, the Council shall examine the changes.

10.

Should an interim agreement notified under paragraph 7(a) of Article XXIV not include a plan and schedule, contrary to paragraph 5(c) of Article XXIV, the working party shall in its report recommend such a plan and schedule. The parties shall not maintain or put into force, as the case may be, such agreement if they are not prepared to modify it in accordance with these recommendations. Provision shall be made for subsequent review of the implementation of the recommendations.

11.

Customs unions and constituents of free-trade areas shall report periodically to the Council for Trade in Goods, as envisaged by the CONTRACTING PARTIES to GATT 1947 in their instruction to the GATT 1947 Council concerning reports on regional agreements (BISD 18S/38), on the operation of the relevant agreement. Any significant changes and/or developments in the agreements should be reported as they occur.

Dispute Settlement

12.

The provisions of Articles XXII and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding may be invoked with respect to any matters arising from the application of those provisions of Article XXIV relating to customs unions, free-trade areas or interim agreements leading to the formation of a customs union or free-trade area.

Understanding in respect of waivers of obligations under the General Agreement on Tariffs and Trade 1994

Members hereby agree as follows:

1.

A request for a waiver or for an extension of an existing waiver shall describe the measures which the Member proposes to take, the specific policy objectives which the Member seeks to pursue and the reasons which prevent the Member from achieving its policy objectives by measures consistent with its obligations under GATT 1994.

2.

Any waiver in effect on the date of entry into force of the WTO Agreement shall terminate, unless extended in accordance with the procedures above and those of Article IX of the WTO Agreement, on the date of its expiry or two years from the date of entry into force of the WTO Agreement, whichever is earlier.

3.

Any Member considering that a benefit accruing to it under GATT 1994 is being nullified or impaired as a result of:

• a. the failure of the Member to whom a waiver was granted to observe the terms or conditions of the waiver, or

• b. the application of a measure consistent with the terms and conditions of the waiver

may invoke the provisions of Article XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding.

Understanding on the interpretation of article XXVIII of the General Agreement on Tariffs and Trade 1994

Members hereby agree as follows:

1.

For the purposes of modification or withdrawal of a concession, the Member which has the highest ratio of exports affected by the concession (i.e. exports of the product to the market of the Member modifying or withdrawing the concession) to its total exports shall be deemed to have a principal supplying interest if it does not already have an initial negotiating right or a principal supplying interest as provided for in paragraph 1 of Article XXVIII. It is however agreed that this paragraph will be reviewed by the Council for Trade in Goods five years from the date of entry into force of the WTO Agreement with a view to deciding whether this criterion has worked satisfactorily in securing a redistribution of negotiating rights in favour of small and medium-sized exporting Members. If this is not the case, consideration will be given to possible improvements, including, in the light of the availability of adequate data, the adoption of a criterion based on the ratio of exports affected by the concession to exports to all markets of the product in question.

2.

Where a Member considers that it has a principal supplying interest in terms of paragraph 1, it should communicate its claim in writing, with supporting evidence, to the Member proposing to modify or withdraw a concession, and at the same time inform the Secretariat. Paragraph 4 of the ''Procedures for Negotiations under Article XXVIII" adopted on 10 November 1980 (BISD 27S/26-28) shall apply in these cases.

3.

In the determination of which Members have a principal supplying interest (whether as provided for in paragraph 1 above or in paragraph 1 of Article XXVIII) or substantial interest, only trade in the affected product which has taken place on an MFN basis shall be taken into consideration. However, trade in the affected product which has taken place under non-contractual preferences shall also be taken into account if the trade in question has ceased to benefit from such preferential treatment, thus becoming MFN trade, at the time of the negotiation for the modification or withdrawal of the concession, or will do so by the conclusion of that negotiation.

4.

When a tariff concession is modified or withdrawn on a new product (i.e. a product for which three years' trade statistics are not available) the Member possessing initial negotiating rights on the tariff line where the product is or was formerly classified shall be deemed to have an initial negotiating right in the concession in question. The determination of principal supplying and substantial interests and the calculation of compensation shall take into account, inter alia, production capacity and investment in the affected product in the exporting Member and estimates of export growth, as well as forecasts of demand for the product in the importing Member. For the purposes of this paragraph, "new product" is understood to include a tariff item created by means of a breakout from an existing tariff line.

5.

Where a Member considers that it has a principal supplying or a substantial interest in terms of paragraph 4, it should communicate its claim in writing, with supporting evidence, to the Member proposing to modify or withdraw a concession, and at the same time inform the Secretariat. Paragraph 4 of the above-mentioned "Procedures for Negotiations under Article XXVIII" shall apply in these cases.

6.

When an unlimited tariff concession is replaced by a tariff rate quota, the amount of compensation provided should exceed the amount of the trade actually affected by the modification of the concession. The basis for the calculation of compensation should be the amount by which future trade prospects exceed the level of the quota. It is understood that the calculation of future trade prospects should be based on the greater of: 1

• a) the average annual trade in the most recent representative three-year period, increased by the average annual growth rate of imports in that same period, or by 10 per cent, whichever is the greater; or

• b) trade in the most recent year increased by 10 per cent.

In no case shall a Member's liability for compensation exceed that which would be entailed by complete withdrawal of the concession.

7.

Any Member having a principal supplying interest, whether as provided for in paragraph 1 above or in paragraph 1 of Article XXVIII, in a concession which is modified or withdrawn shall be accorded an initial negotiating right in the compensatory concessions, unless another form of compensation is agreed by the Members concerned.

Marrakesh protocol to the General Agreement on Tariffs and Trade 1994

Members,

Having carried out negotiations within the framework of GATT 1947, pursuant to the Ministerial Declaration on the Uruguay Round,

Hereby agree as follows:

1.

The schedule annexed to this Protocol relating to a Member shall become a Schedule to GATT 1994 relating to that Member on the day on which the WTO Agreement enters into force for that Member. Any schedule submitted in accordance with the Ministerial Decision on measures in favour of least-developed countries shall be deemed to be annexed to this Protocol.

2.

The tariff reductions agreed upon by each Member shall be implemented in five equal rate reductions, except as may be otherwise specified in a Member's Schedule. The first such reduction shall be made effective on the date of entry into force of the WTO Agreement, each successive reduction shall be made effective on 1 January of each of the following years, and the final rate shall become effective no later than the date four years after the date of entry into force of the WTO Agreement, except as may be otherwise specified in that Member's Schedule. Unless otherwise specified in its Schedule, a Member that accepts the WTO Agreement after its entry into force shall, on the date that Agreement enters into force for it, make effective all rate reductions that have already taken place together with the reductions which it would under the preceding sentence have been obligated to make effective on 1 January of the year following, and shall make effective all remaining rate reductions on the schedule specified in the previous sentence. The reduced rate should in each stage be rounded off to the first decimal. For agricultural products, as defined in Article 2 of the Agreement on Agriculture, the staging of reductions shall be implemented as specified in the relevant parts of the schedules.

3.

The implementation of the concessions and commitments contained in the schedules annexed to this Protocol shall, upon request, be subject to multilateral examination by the Members. This would be without prejudice to the rights and obligations of Members under Agreements in Annex 1A of the WTO Agreement.

4.

After the schedule annexed to this Protocol relating to a Member has become a Schedule to GATT 1994 pursuant to the provisions of paragraph 1, such Member shall be free at any time to withhold or to withdraw in whole or in part the concession in such Schedule with respect to any product for which the principal supplier is any other Uruguay Round participant the schedule of which has not yet become a Schedule to GATT 1994. Such action can, however, only be taken after written notice of any such withholding or withdrawal of a concession has been given to the Council for Trade in Goods and after consultations have been held, upon request, with any Member, the relevant schedule relating to which has become a Schedule to GATT 1994 and which has a substantial interest in the product involved. Any concessions so withheld or withdrawn shall be applied on and after the day on which the schedule of the Member which has the principal supplying interest becomes a Schedule to GATT 1994.

5.

• a) Without prejudice to the provisions of paragraph 2 of Article 4 of the Agreement on Agriculture, for the purpose of the reference in paragraphs 1b) and 1c) of Article II of GATT 1994 to the date of that Agreement, the applicable date in respect of each product which is the subject of a concession provided for in a schedule of concessions annexed to this Protocol shall be the date of this Protocol.

• b) For the purpose of the reference in paragraph 6a) of Article II of GATT 1994 to the date of that Agreement, the applicable date in respect of a schedule of concessions annexed to this Protocol shall be the date of this Protocol.

6.

In cases of modification or withdrawal of concessions relating to non-tariff measures as contained in Part III of the schedules, the provisions of Article XXVIII of GATT 1994 and the "Procedures for Negotiations under Article XXVIII" adopted on 10 November 1980 (BISD 27S/26-28) shall apply. This would be without prejudice to the rights and obligations of Members under GATT 1994.

7.

In each case in which a schedule annexed to this Protocol results for any product in treatment less favourable than was provided for such product in the Schedules of GATT 1947 prior to the entry into force of the WTO Agreement, the Member to whom the schedule relates shall be deemed to have taken appropriate action as would have been otherwise necessary under the relevant provisions of Article XXVIII of GATT 1947 or 1994. The provisions of this paragraph shall apply only to Egypt, Peru, South Africa and Uruguay.

8.

The Schedules annexed hereto are authentic in the English, French or Spanish language as specified in each Schedule.

9.

The date of this Protocol is 15 April 1994

Agreement on Agriculture

Members,

Having decided to establish a basis for initiating a process of reform of trade in agriculture in line with the objectives of the negotiations as set out in the Punta del Este Declaration;

Recalling that their long-term objective as agreed at the Mid-Term Review of the Uruguay Round "is to establish a fair and market-oriented agricultural trading system and that a reform process should be initiated through the negotiation of commitments on support and protection and through the establishment of strengthened and more operationally effective GATT rules and disciplines";

Recalling further that "the above-mentioned long-term objective is to provide for substantial progressive reductions in agricultural support and protection sustained over an agreed period of time, resulting in correcting and preventing restrictions and distortions in world agricultural markets";

Committed to achieving specific binding commitments in each of the following areas: market access; domestic support; export competition; and to reaching an agreement on sanitary and phytosanitary issues;

Having agreed that in implementing their commitments on market access, developed country Members would take fully into account the particular needs and conditions of developing country Members by providing for a greater improvement of opportunities and terms of access for agricultural products of particular interest to these Members, including the fullest liberalization of trade in tropical agricultural products as agreed at the Mid-Term Review, and for products of particular importance to the diversification of production from the growing of illicit narcotic crops;

Noting that commitments under the reform programme should be made in an equitable way among all Members, having regard to non-trade concerns, including food security and the need to protect the environment; having regard to the agreement that special and differential treatment for developing countries is an integral element of the negotiations, and taking into account the possible negative effects of the implementation of the reform programme on least-developed and net food-importing developing countries;

Hereby agree as follows:

PART I

Article 1. Definition of Terms

In this Agreement, unless the context otherwise requires:

• a) "Aggregate Measurement of Support" and "AMS" mean the annual level of support, expressed in monetary terms, provided for an agricultural product in favour of the producers of the basic agricultural product or non-product-specific support provided in favour of agricultural producers in general, other than support provided under programmes that qualify as exempt from reduction under Annex 2 to this Agreement, which is:

  • i) with respect to support provided during the base period, specified in the relevant tables of supporting material incorporated by reference in Part IV of a Member's Schedule; and

  • ii) with respect to support provided during any year of the implementation period and thereafter, calculated in accordance with the provisions of Annex 3 of this Agreement and taking into account the constituent data and methodology used in the tables of supporting material incorporated by reference in Part IV of the Member's Schedule;

• b) "basic agricultural product" in relation to domestic support commitments is defined as the product as close as practicable to the point of first sale as specified in a Member's Schedule and in the related supporting material;

• c) "budgetary outlays" or "outlays" includes revenue foregone;

• d) "Equivalent Measurement of Support" means the annual level of support, expressed in monetary terms, provided to producers of a basic agricultural product through the application of one or more measures, the calculation of which in accordance with the AMS methodology is impracticable, other than support provided under programmes that qualify as exempt from reduction under Annex 2 to this Agreement, and which is:

  • i) with respect to support provided during the base period, specified in the relevant tables of supporting material incorporated by reference in Part IV of a Member's Schedule; and

  • ii) with respect to support provided during any year of the implementation period and thereafter, calculated in accordance with the provisions of Annex 4 of this Agreement and taking into account the constituent data and methodology used in the tables of supporting material incorporated by reference in Part IV of the Member's Schedule;

• e) "export subsidies" refers to subsidies contingent upon export performance, including the export subsidies listed in Article 9 of this Agreement;

• f) "implementation period" means the six-year period commencing in the year 1995, except that, for the purposes of Article 13, it means the nine-year period commencing in 1995;

• g) "market access concessions" includes all market access commitments undertaken pursuant to this Agreement;

• h) "Total Aggregate Measurement of Support" and "Total AMS" mean the sum of all domestic support provided in favour of agricultural producers, calculated as the sum of all aggregate measurements of support for basic agricultural products, all non-product-specific aggregate measurements of support and all equivalent measurements of support for agricultural products, and which is:

  • i) with respect to support provided during the base period (i.e. the "Base Total AMS") and the maximum support permitted to be provided during any year of the implementation period or thereafter (i.e. the "Annual and Final Bound Commitment Levels"), as specified in Part IV of a Member's Schedule; and

  • ii) with respect to the level of support actually provided during any year of the implementation period and thereafter (i.e. the "Current Total AMS"), calculated in accordance with the provisions of this Agreement, including Article 6, and with the constituent data and methodology used in the tables of supporting material incorporated by reference in Part IV of the Member's Schedule;

• i) "year" in paragraph (f) above and in relation to the specific commitments of a Member refers to the calendar, financial or marketing year specified in the Schedule relating to that Member.

Article 2. Product Coverage

This Agreement applies to the products listed in Annex 1 to this Agreement, hereinafter referred to as agricultural products.

PART II

Article 3. Incorporation of Concessions and Commitments

• 1 The domestic support and export subsidy commitments in Part IV of each Member's Schedule constitute commitments limiting subsidization and are hereby made an integral part of GATT 1994.

• 2 Subject to the provisions of Article 6, a Member shall not provide support in favour of domestic producers in excess of the commitment levels specified in Section I of Part IV of its Schedule.

• 3 Subject to the provisions of paragraphs 2(b) and 4 of Article 9, a Member shall not provide export subsidies listed in paragraph 1 of Article 9 in respect of the agricultural products or groups of products specified in Section II of Part IV of its Schedule in excess of the budgetary outlay and quantity commitment levels specified therein and shall not provide such subsidies in respect of any agricultural product not specified in that Section of its Schedule.

PART III

Article 4. Market Access

• 1 Market access concessions contained in Schedules relate to bindings and reductions of tariffs, and to other market access commitments as specified therein.

• 2 Members shall not maintain, resort to, or revert to any measures of the kind which have been required to be converted into ordinary customs duties9, except as otherwise provided for in Article 5 and Annex 5.

Article 5. Special Safeguard Provisions

• 1 Notwithstanding the provisions of paragraph 1(b) of Article II of GATT 1994, any Member may take recourse to the provisions of paragraphs 4 and 5 below in connection with the importation of an agricultural product, in respect of which measures referred to in paragraph 2 of Article 4 of this Agreement have been converted into an ordinary customs duty and which is designated in its Schedule with the symbol "SSG" as being the subject of a concession in respect of which the provisions of this Article may be invoked, if:

  • a) the volume of imports of that product entering the customs territory of the Member granting the concession during any year exceeds a trigger level which relates to the existing market access opportunity as set out in paragraph 4; or, but not concurrently:

  • b) the price at which imports of that product may enter the customs territory of the Member granting the concession, as determined on the basis of the c.i.f. import price of the shipment concerned expressed in terms of its domestic currency, falls below a trigger price equal to the average 1986 to 1988 reference price10for the product concerned.

• 2 Imports under current and minimum access commitments established as part of a concession referred to in paragraph 1 above shall be counted for the purpose of determining the volume of imports required for invoking the provisions of subparagraph 1a) and paragraph 4, but imports under such commitments shall not be affected by any additional duty imposed under either subparagraph 1a) and paragraph 4 or subparagraph 1b) and paragraph 5 below.

• 3 Any supplies of the product in question which were en route on the basis of a contract settled before the additional duty is imposed under subparagraph 1a) and paragraph 4 shall be exempted from any such additional duty, provided that they may be counted in the volume of imports of the product in question during the following year for the purposes of triggering the provisions of subparagraph 1a) in that year.

• 4 Any additional duty imposed under subparagraph 1a) shall only be maintained until the end of the year in which it has been imposed, and may only be levied at a level which shall not exceed one third of the level of the ordinary customs duty in effect in the year in which the action is taken. The trigger level shall be set according to the following schedule based on market access opportunities defined as imports as a percentage of the corresponding domestic consumption11during the three preceding years for which data are available:

  • a) where such market access opportunities for a product are less than or equal to 10 per cent, the base trigger level shall equal 125 per cent;

  • b) where such market access opportunities for a product are greater than 10 per cent but less than or equal to 30 per cent, the base trigger level shall equal 110 per cent;

  • c) where such market access opportunities for a product are greater than 30 per cent, the base trigger level shall equal 105 per cent.

  In all cases the additional duty may be imposed in any year where the absolute volume of imports of the product concerned entering the customs territory of the Member granting the concession exceeds the sum of (x) the base trigger level set out above multiplied by the average quantity of imports during the three preceding years for which data are available and (y) the absolute volume change in domestic consumption of the product concerned in the most recent year for which data are available compared to the preceding year, provided that the trigger level shall not be less than 105 per cent of the average quantity of imports in (x) above.

• 5 The additional duty imposed under subparagraph 1b) shall be set according to the following schedule:

  • a) if the difference between the c.i.f. import price of the shipment expressed in terms of the domestic currency (hereinafter referred to as the "import price") and the trigger price as defined under that subparagraph is less than or equal to 10 per cent of the trigger price, no additional duty shall be imposed;

  • b) if the difference between the import price and the trigger price (hereinafter referred to as the "difference") is greater than 10 per cent but less than or equal to 40 per cent of the trigger price, the additional duty shall equal 30 per cent of the amount by which the difference exceeds 10 per cent;

  • c) if the difference is greater than 40 per cent but less than or equal to 60 per cent of the trigger price, the additional duty shall equal 50 per cent of the amount by which the difference exceeds 40 per cent, plus the additional duty allowed under b);

  • d) if the difference is greater than 60 per cent but less than or equal to 75 per cent, the additional duty shall equal 70 per cent of the amount by which the difference exceeds 60 per cent of the trigger price, plus the additional duties allowed under b) and c);

  • e) if the difference is greater than 75 per cent of the trigger price, the additional duty shall equal 90 per cent of the amount by which the difference exceeds 75 per cent, plus the additional duties allowed under b), c) and d).

• 6 For perishable and seasonal products, the conditions set out above shall be applied in such a manner as to take account of the specific characteristics of such products. In particular, shorter time periods under subparagraph 1a) and paragraph 4 may be used in reference to the corresponding periods in the base period and different reference prices for different periods may be used under subparagraph 1b).

• 7 The operation of the special safeguard shall be carried out in a transparent manner. Any Member taking action under subparagraph 1a) above shall give notice in writing, including relevant data, to the Committee on Agriculture as far in advance as may be practicable and in any event within 10 days of the implementation of such action. In cases where changes in consumption volumes must be allocated to individual tariff lines subject to action under paragraph 4, relevant data shall include the information and methods used to allocate these changes. A Member taking action under paragraph 4 shall afford any interested Members the opportunity to consult with it in respect of the conditions of application of such action. Any Member taking action under subparagraph 1b) above shall give notice in writing, including relevant data, to the Committee on Agriculture within 10 days of the implementation of the first such action or, for perishable and seasonal products, the first action in any period. Members undertake, as far as practicable, not to take recourse to the provisions of subparagraph 1b) where the volume of imports of the products concerned are declining. In either case a Member taking such action shall afford any interested Members the opportunity to consult with it in respect of the conditions of application of such action.

• 8 Where measures are taken in conformity with paragraphs 1 through 7 above, Members undertake not to have recourse, in respect of such measures, to the provisions of paragraphs 1a) and 3 of Article XIX of GATT 1994 or paragraph 2 of Article 8 of the Agreement on Safeguards.

• 9 The provisions of this Article shall remain in force for the duration of the reform process as determined under Article 20.

PART IV

Article 6. Domestic Support Commitments

• 1 The domestic support reduction commitments of each Member contained in Part IV of its Schedule shall apply to all of its domestic support measures in favour of agricultural producers with the exception of domestic measures which are not subject to reduction in terms of the criteria set out in this Article and in Annex 2 to this Agreement. The commitments are expressed in terms of Total Aggregate Measurement of Support and "Annual and Final Bound Commitment Levels".

• 2 In accordance with the Mid-Term Review Agreement that government measures of assistance, whether direct or indirect, to encourage agricultural and rural development are an integral part of the development programmes of developing countries, investment subsidies which are generally available to agriculture in developing country Members and agricultural input subsidies generally available to low-income or resource-poor producers in developing country Members shall be exempt from domestic support reduction commitments that would otherwise be applicable to such measures, as shall domestic support to producers in developing country Members to encourage diversification from growing illicit narcotic crops. Domestic support meeting the criteria of this paragraph shall not be required to be included in a Member's calculation of its Current Total AMS.

• 3 A Member shall be considered to be in compliance with its domestic support reduction commitments in any year in which its domestic support in favour of agricultural producers expressed in terms of Current Total AMS does not exceed the corresponding annual or final bound commitment level specified in Part IV of the Member's Schedule.

• 4

  • a) A Member shall not be required to include in the calculation of its Current Total AMS and shall not be required to reduce:

    • i) product-specific domestic support which would otherwise be required to be included in a Member's calculation of its Current AMS where such support does not exceed 5 per cent of that Member's total value of production of a basic agricultural product during the relevant year; and

    • ii) non-product-specific domestic support which would otherwise be required to be included in a Member's calculation of its Current AMS where such support does not exceed 5 per cent of the value of that Member's total agricultural production.

  • b) For developing country Members, the de minimis percentage under this paragraph shall be 10 per cent.

• 5

  • a) Direct payments under production-limiting programmes shall not be subject to the commitment to reduce domestic support if:

    • i) such payments are based on fixed area and yields; or

    • ii) such payments are made on 85 per cent or less of the base level of production; or

    • iii) livestock payments are made on a fixed number of head.

  • b) The exemption from the reduction commitment for direct payments meeting the above criteria shall be reflected by the exclusion of the value of those direct payments in a Member's calculation of its Current Total AMS.

Article 7. General Disciplines on Domestic Support

• 1 Each Member shall ensure that any domestic support measures in favour of agricultural producers which are not subject to reduction commitments because they qualify under the criteria set out in Annex 2 to this Agreement are maintained in conformity therewith.

• 2

  • a) Any domestic support measure in favour of agricultural producers, including any modification to such measure, and any measure that is subsequently introduced that cannot be shown to satisfy the criteria in Annex 2 to this Agreement or to be exempt from reduction by reason of any other provision of this Agreement shall be included in the Member's calculation of its Current Total AMS.

  • b) Where no Total AMS commitment exists in Part IV of a Member's Schedule, the Member shall not provide support to agricultural producers in excess of the relevant de minimis level set out in paragraph 4 of Article 6.

PART V

Article 8. Export Competition Commitments

Each Member undertakes not to provide export subsidies otherwise than in conformity with this Agreement and with the commitments as specified in that Member's Schedule.

Article 9. Export Subsidy Commitments

• 1 The following export subsidies are subject to reduction commitments under this Agreement:

  • a) the provision by governments or their agencies of direct subsidies, including payments-in-kind, to a firm, to an industry, to producers of an agricultural product, to a cooperative or other association of such producers, or to a marketing board, contingent on export performance;

  • b) the sale or disposal for export by governments or their agencies of non-commercial stocks of agricultural products at a price lower than the comparable price charged for the like product to buyers in the domestic market;

  • c) payments on the export of an agricultural product that are financed by virtue of governmental action, whether or not a charge on the public account is involved, including payments that are financed from the proceeds of a levy imposed on the agricultural product concerned or on an agricultural product from which the exported product is derived;

  • d) the provision of subsidies to reduce the costs of marketing exports of agricultural products (other than widely available export promotion and advisory services) including handling, upgrading and other processing costs, and the costs of international transport and freight;

  • e) internal transport and freight charges on export shipments, provided or mandated by governments, on terms more favourable than for domestic shipments;

  • f) subsidies on agricultural products contingent on their incorporation in exported products.

• 2

  • a) Except as provided in subparagraph b), the export subsidy commitment levels for each year of the implementation period, as specified in a Member's Schedule, represent with respect to the export subsidies listed in paragraph 1 of this Article:

    • i) in the case of budgetary outlay reduction commitments, the maximum level of expenditure for such subsidies that may be allocated or incurred in that year in respect of the agricultural product, or group of products, concerned; and

    • ii) in the case of export quantity reduction commitments, the maximum quantity of an agricultural product, or group of products, in respect of which such export subsidies may be granted in that year.

  • b) In any of the second through fifth years of the implementation period, a Member may provide export subsidies listed in paragraph 1 above in a given year in excess of the corresponding annual commitment levels in respect of the products or groups of products specified in Part IV of the Member's Schedule, provided that:

    • i) the cumulative amounts of budgetary outlays for such subsidies, from the beginning of the implementation period through the year in question, does not exceed the cumulative amounts that would have resulted from full compliance with the relevant annual outlay commitment levels specified in the Member's Schedule by more than 3 per cent of the base period level of such budgetary outlays;

    • ii) the cumulative quantities exported with the benefit of such export subsidies, from the beginning of the implementation period through the year in question, does not exceed the cumulative quantities that would have resulted from full compliance with the relevant annual quantity commitment levels specified in the Member's Schedule by more than 1.75 per cent of the base period quantities;

    • iii) the total cumulative amounts of budgetary outlays for such export subsidies and the quantities benefiting from such export subsidies over the entire implementation period are no greater than the totals that would have resulted from full compliance with the relevant annual commitment levels specified in the Member's Schedule; and

    • iv) the Member's budgetary outlays for export subsidies and the quantities benefiting from such subsidies, at the conclusion of the implementation period, are no greater than 64 per cent and 79 per cent of the 1986-1990 base period levels, respectively. For developing country Members these percentages shall be 76 and 86 per cent, respectively.

• 3 Commitments relating to limitations on the extension of the scope of export subsidization are as specified in Schedules.

• 4 During the implementation period, developing country Members shall not be required to undertake commitments in respect of the export subsidies listed in subparagraphs (d) and (e) of paragraph 1 above, provided that these are not applied in a manner that would circumvent reduction commitments.

Article 10. Prevention of Circumvention of Export Subsidy Commitments

• 1 Export subsidies not listed in paragraph 1 of Article 9 shall not be applied in a manner which results in, or which threatens to lead to, circumvention of export subsidy commitments; nor shall non-commercial transactions be used to circumvent such commitments.

• 2 Members undertake to work toward the development of internationally agreed disciplines to govern the provision of export credits, export credit guarantees or insurance programmes and, after agreement on such disciplines, to provide export credits, export credit guarantees or insurance programmes only in conformity therewith.

• 3 Any Member which claims that any quantity exported in excess of a reduction commitment level is not subsidized must establish that no export subsidy, whether listed in Article 9 or not, has been granted in respect of the quantity of exports in question.

• 4 Members donors of international food aid shall ensure:

  • a) that the provision of international food aid is not tied directly or indirectly to commercial exports of agricultural products to recipient countries;

  • b) that international food aid transactions, including bilateral food aid which is monetized, shall be carried out in accordance with the FAO "Principles of Surplus Disposal and Consultative Obligations", including, where appropriate, the system of Usual Marketing Requirements (UMRs); and

  • c) that such aid shall be provided to the extent possible in fully grant form or on terms no less concessional than those provided for in Article IV of the Food Aid Convention 1986.

Article 11. Incorporated Products

In no case may the per-unit subsidy paid on an incorporated agricultural primary product exceed the per-unit export subsidy that would be payable on exports of the primary product as such.

PART VI

Article 12. Disciplines on Export Prohibitions and Restrictions

• 1 Where any Member institutes any new export prohibition or restriction on foodstuffs in accordance with paragraph 2a) of Article XI of GATT 1994, the Member shall observe the following provisions:

  • a) the Member instituting the export prohibition or restriction shall give due consideration to the effects of such prohibition or restriction on importing Members' food security;

  • b) before any Member institutes an export prohibition or restriction, it shall give notice in writing, as far in advance as practicable, to the Committee on Agriculture comprising such information as the nature and the duration of such measure, and shall consult, upon request, with any other Member having a substantial interest as an importer with respect to any matter related to the measure in question. The Member instituting such export prohibition or restriction shall provide, upon request, such a Member with necessary information.

• 2 The provisions of this Article shall not apply to any developing country Member, unless the measure is taken by a developing country Member which is a net-food exporter of the specific foodstuff concerned.

PART VII

Article 13. Due Restraint

During the implementation period, notwithstanding the provisions of GATT 1994 and the Agreement on Subsidies and Countervailing Measures (referred to in this Article as the "Subsidies Agreement"):

• a) domestic support measures that conform fully to the provisions of Annex 2 to this Agreement shall be:

  • i) non-actionable subsidies for purposes of countervailing duties12;

  • ii) exempt from actions based on Article XVI of GATT 1994 and Part III of the Subsidies Agreement; and

  • iii) exempt from actions based on non-violation nullification or impairment of the benefits of tariff concessions accruing to another Member under Article II of GATT 1994, in the sense of paragraph 1(b) of Article XXIII of GATT 1994;

• b) domestic support measures that conform fully to the provisions of Article 6 of this Agreement including direct payments that conform to the requirements of paragraph 5 thereof, as reflected in each Member's Schedule, as well as domestic support within de minimis levels and in conformity with paragraph 2 of Article 6, shall be:

  • i) exempt from the imposition of countervailing duties unless a determination of injury or threat thereof is made in accordance with Article VI of GATT 1994 and Part V of the Subsidies Agreement, and due restraint shall be shown in initiating any countervailing duty investigations;

  • ii) exempt from actions based on paragraph 1 of Article XVI of GATT 1994 or Articles 5 and 6 of the Subsidies Agreement, provided that such measures do not grant support to a specific commodity in excess of that decided during the 1992 marketing year; and

  • iii) exempt from actions based on non-violation nullification or impairment of the benefits of tariff concessions accruing to another Member under Article II of GATT 1994, in the sense of paragraph 1(b) of Article XXIII of GATT 1994, provided that such measures do not grant support to a specific commodity in excess of that decided during the 1992 marketing year;

• c) export subsidies that conform fully to the provisions of Part V of this Agreement, as reflected in each Member's Schedule, shall be:

  • i) subject to countervailing duties only upon a determination of injury or threat thereof based on volume, effect on prices, or consequent impact in accordance with Article VI of GATT 1994 and Part V of the Subsidies Agreement, and due restraint shall be shown in initiating any countervailing duty investigations; and

  • ii) exempt from actions based on Article XVI of GATT 1994 or Articles 3, 5 and 6 of the Subsidies Agreement.

PART VIII

Article 14. Sanitary and Phytosanitary Measures

Members agree to give effect to the Agreement on the Application of Sanitary and Phytosanitary Measures.

PART IX

Article 15. Special and Differential Treatment

• 1 In keeping with the recognition that differential and more favourable treatment for developing country Members is an integral part of the negotiation, special and differential treatment in respect of commitments shall be provided as set out in the relevant provisions of this Agreement and embodied in the Schedules of concessions and commitments.

• 2 Developing country Members shall have the flexibility to implement reduction commitments over a period of up to 10 years. Least-developed country Members shall not be required to undertake reduction commitments.

PART X

Article 16. Least-Developed and Net Food-Importing Developing Countries

• 1 Developed country Members shall take such action as is provided for within the framework of the Decision on Measures Concerning the Possible Negative Effects of the Reform Programme on Least-Developed and Net Food-Importing Developing Countries.

• 2 The Committee on Agriculture shall monitor, as appropriate, the follow-up to this Decision.

PART XI

Article 17. Committee on Agriculture

A Committee on Agriculture is hereby established.

Article 18. Review of the Implementation of Commitments

• 1 Progress in the implementation of commitments negotiated under the Uruguay Round reform programme shall be reviewed by the Committee on Agriculture.

• 2 The review process shall be undertaken on the basis of notifications submitted by Members in relation to such matters and at such intervals as shall be determined, as well as on the basis of such documentation as the Secretariat may be requested to prepare in order to facilitate the review process.

• 3 In addition to the notifications to be submitted under paragraph 2, any new domestic support measure, or modification of an existing measure, for which exemption from reduction is claimed shall be notified promptly. This notification shall contain details of the new or modified measure and its conformity with the agreed criteria as set out either in Article 6 or in Annex 2.

• 4 In the review process Members shall give due consideration to the influence of excessive rates of inflation on the ability of any Member to abide by its domestic support commitments.

• 5 Members agree to consult annually in the Committee on Agriculture with respect to their participation in the normal growth of world trade in agricultural products within the framework of the commitments on export subsidies under this Agreement.

• 6 The review process shall provide an opportunity for Members to raise any matter relevant to the implementation of commitments under the reform programme as set out in this Agreement.

• 7 Any Member may bring to the attention of the Committee on Agriculture any measure which it considers ought to have been notified by another Member.

Article 19. Consultation and Dispute Settlement

The provisions of Articles XXII and XXIII of GATT 1994, as elaborated and applied by the Dispute Settlement Understanding, shall apply to consultations and the settlement of disputes under this Agreement.

PART XII

Article 20. Continuation of the Reform Process

Recognizing that the long-term objective of substantial progressive reductions in support and protection resulting in fundamental reform is an ongoing process, Members agree that negotiations for continuing the process will be initiated one year before the end of the implementation period, taking into account:

• a) the experience to that date from implementing the reduction commitments;

• b) the effects of the reduction commitments on world trade in agriculture;

• c) non-trade concerns, special and differential treatment to developing country Members, and the objective to establish a fair and market-oriented agricultural trading system, and the other objectives and concerns mentioned in the preamble to this Agreement; and

• d) what further commitments are necessary to achieve the above mentioned long-term objectives.

PART XIII

Article 21. Final Provisions

• 1 The provisions of GATT 1994 and of other Multilateral Trade Agreements in Annex 1A to the WTO Agreement shall apply subject to the provisions of this Agreement.

• 2 The Annexes to this Agreement are hereby made an integral part of this Agreement.

Annex 1. PRODUCT COVERAGE

1.

This Agreement shall cover the following products:

• (i) HS Chapters 1 to 24 less fish and fish products, plus13

• (ii)

  HS Code	2905.43	(manifold)
  HS Code	2905.44	(sorbitol)
  HS Heading	33.01	(essential oils)
  HS Headings	35.01 to 35.05	(albuminoidal substances, modified starches, glues)
  HS Code	3809.10	(finishing agents)
  HS Code	3823.60	(sorbitol n.e.p.)
  HS Headings	41.01 to 41.03	(hides and skins)
  HS Heading	43.01	(raw furskins)
  HS Headings	50.01 to 50.03	(raw silk and silk waste)
  HS Headings	51.01 to 51.03	(wool and animal hair)
  HS Headings	52.01 to 52.03	(raw cotton, waste and cotton carded or combed)
  HS Heading	53.01	(raw flax)
  HS Heading	53.02	(raw hemp)

2.

The foregoing shall not limit the product coverage of the Agreement on the Application of Sanitary and Phytosanitary Measures.

Annex 2. DOMESTIC SUPPORT: THE BASIS FOR EXEMPTION FROM THE REDUCTION COMMITMENTS

1.

Domestic support measures for which exemption from the reduction commitments is claimed shall meet the fundamental requirement that they have no, or at most minimal, trade-distorting effects or effects on production. Accordingly, all measures for which exemption is claimed shall conform to the following basic criteria:

• a) the support, in question shall be provided through a publicly-funded government programme (including government revenue foregone) not involving transfers from consumers; and,

• b) the support in question shall not have the effect of providing price support to producers; plus policy-specific criteria and conditions as set out below.

Government Service Programmes

2. General services

Policies in this category involve expenditures (or revenue foregone) in relation to programmes which provide services or benefits to agriculture or the rural community. They shall not involve direct payments to producers or processors. Such programmes, which include but are not restricted to the following list, shall meet the general criteria in paragraph 1 above and policy-specific conditions where set out below:

• a) research, including general research, research in connection with environmental programmes, and research programmes relating to particular products;

• b) pest and disease control, including general and product-specific pest and disease control measures, such as early-warning systems, quarantine and eradication;

• c) training services, including both general and specialist training facilities;

• d) extension and advisory services, including the provision of means to facilitate the transfer of information and the results of research to producers and consumers;

• e) inspection services, including general inspection services and the inspection of particular products for health, safety, grading or standardization purposes;

• f) marketing and promotion services, including market information, advice and promotion relating to particular products but excluding expenditure for unspecified purposes that could be used by sellers to reduce their selling price or confer a direct economic benefit to purchasers; and

• g) infrastructural services, including: electricity reticulation, roads and other means of transport, market and port facilities, water supply facilities, dams and drainage schemes, and infrastructural works associated with environmental programmes. In all cases the expenditure shall be directed to the provision or construction of capital works only, and shall exclude the subsidized provision of on-farm facilities other than for the reticulation of generally available public utilities. It shall not include subsidies to inputs or operating costs, or preferential user charges.

3. Public stockholding for food security purposes14

Expenditures (or revenue foregone) in relation to the accumulation and holding of stocks of products which form an integral part of a food security programme identified in national legislation. This may include government aid to private storage of products as part of such a programme.

The volume and accumulation of such stocks shall correspond to predetermined targets related solely to food security. The process of stock accumulation and disposal shall be financially transparent. Food purchases by the government shall be made at current market prices and sales from food security stocks shall be made at no less than the current domestic market price for the product and quality in question.

4. Domestic food aid15

Expenditures (or revenue foregone) in relation to the provision of domestic food aid to sections of the population in need.

Eligibility to receive the food aid shall be subject to clearly-defined criteria related to nutritional objectives. Such aid shall be in the form of direct provision of food to those concerned or the provision of means to allow eligible recipients to buy food either at market or at subsidized prices. Food purchases by the government shall be made at current market prices and the financing and administration of the aid shall be transparent.

5. Direct payments to producers

Support provided through direct payments (or revenue foregone, including payments in kind) to producers for which exemption from reduction commitments is claimed shall meet the basic criteria set out in paragraph 1 above, plus specific criteria applying to individual types of direct payment as set out in paragraphs 6 through 13 below. Where exemption from reduction is claimed for any existing or new type of direct payment other than those specified in paragraphs 6 through 13, it shall conform to criteria (b) through (e) in paragraph 6, in addition to the general criteria set out in paragraph 1.

6. Decoupled income support

• a) Eligibility for such payments shall be determined by clearly-defined criteria such as income, status as a producer or landowner, factor use or production level in a defined and fixed base period.

• b) The amount of such payments in any given year shall not be related to, or based on, the type or volume of production (including livestock units) undertaken by the producer in any year after the base period.

• c) The amount of such payments in any given year shall not be related to, or based on, the prices, domestic or international, applying to any production undertaken in any year after the base period.

• d) The amount of such payments in any given year shall not be related to, or based on, the factors of production employed in any year after the base period.

• e) No production shall be required in order to receive such payments.

7. Government financial participation in income insurance and income safety-net programmes

• a) Eligibility for such payments shall be determined by an income loss, taking into account only income derived from agriculture, which exceeds 30 per cent of average gross income or the equivalent in net income terms (excluding any payments from the same or similar schemes) in the preceding three-year period or a three-year average based on the preceding five-year period, excluding the highest and the lowest entry. Any producer meeting this condition shall be eligible to receive the payments.

• b) The amount of such payments shall compensate for less than 70 per cent of the producer's income loss in the year the producer becomes eligible to receive this assistance.

• c) The amount of any such payments shall relate solely to income; it shall not relate to the type or volume of production (including livestock units) undertaken by the producer; or to the prices, domestic or international, applying to such production; or to the factors of production employed.

• d) Where a producer receives in the same year payments under this paragraph and under paragraph 8 (relief from natural disasters), the total of such payments shall be less than 100 per cent of the producer's total loss.

8. Payments (made either directly or by way of government financial participation in crop insurance schemes) for relief from natural disasters

• a) Eligibility for such payments shall arise only following a formal recognition by government authorities that a natural or like disaster (including disease outbreaks, pest infestations, nuclear accidents, and war on the territory of the Member concerned) has occurred or is occurring; and shall be determined by a production loss which exceeds 30 per cent of the average of production in the preceding three-year period or a three-year average based on the preceding five-year period, excluding the highest and the lowest entry.

• b) Payments made following a disaster shall be applied only in respect of losses of income, livestock (including payments in connection with the veterinary treatment of animals), land or other production factors due to the natural disaster in question.

• c) Payments shall compensate for not more than the total cost of replacing such losses and shall not require or specify the type or quantity of future production.

• d) Payments made during a disaster shall not exceed the level required to prevent or alleviate further loss as defined in criterion (b) above.

• e) Where a producer receives in the same year payments under this paragraph and under paragraph 7 (income insurance and income safety-net programmes), the total of such payments shall be less than 100 per cent of the producer's total loss.

9. Structural adjustment assistance provided through producer retirement programmes

• a) Eligibility for such payments shall be determined by reference to clearly defined criteria in programmes designed to facilitate the retirement of persons engaged in marketable agricultural production, or their movement to non-agricultural activities.

• b) Payments shall be conditional upon the total and permanent retirement of the recipients from marketable agricultural production.

10. Structural adjustment assistance provided through resource retirement programmes

• a) Eligibility for such payments shall be determined by reference to clearly defined criteria in programmes designed to remove land or other resources, including livestock, from marketable agricultural production.

• b) Payments shall be conditional upon the retirement of land from marketable agricultural production for a minimum of three years, and in the case of livestock on its slaughter or definitive permanent disposal.

• c) Payments shall not require or specify any alternative use for such land or other resources which involves the production of marketable agricultural products.

• d) Payments shall not be related to either the type or quantity of production or to the prices, domestic or international, applying to production undertaken using the land or other resources remaining in production.

11. Structural adjustment assistance provided through investment aids

• a) Eligibility for such payments shall be determined by reference to clearly-defined criteria in government programmes designed to assist the financial or physical restructuring of a producer's operations in response to objectively demonstrated structural disadvantages. Eligibility for such programmes may also be based on a clearly-defined government programme for the reprivatization of agricultural land.

• b) The amount of such payments in any given year shall not be related to, or based on, the type or volume of production (including livestock units) undertaken by the producer in any year after the base period other than as provided for under criterion (e) below.

• c) The amount of such payments in any given year shall not be related to, or based on, the prices, domestic or international, applying to any production undertaken in any year after the base period.

• d) The payments shall be given only for the period of time necessary for the realization of the investment in respect of which they are provided.

• e) The payments shall not mandate or in any way designate the agricultural products to be produced by the recipients except to require them not to produce a particular product.

• f) The payments shall be limited to the amount required to compensate for the structural disadvantage.

12. Payments under environmental programmes

• a) Eligibility for such payments shall be determined as part of a clearly-defined government environmental or conservation programme and be dependent on the fulfilment of specific conditions under the government programme, including conditions related to production methods or inputs.

• b) The amount of payment shall be limited to the extra costs or loss of income involved in complying with the government programme.

13. Payments under regional assistance programmes

• a) Eligibility for such payments shall be limited to producers in disadvantaged regions. Each such region must be a clearly designated contiguous geographical area with a definable economic and administrative identity, considered as disadvantaged on the basis of neutral and objective criteria clearly spelt out in law or regulation and indicating that the region's difficulties arise out of more than temporary circumstances.

• b) The amount of such payments in any given year shall not be related to, or based on, the type or volume of production (including livestock units) undertaken by the producer in any year after the base period other than to reduce that production.

• c) The amount of such payments in any given year shall not be related to, or based on, the prices, domestic or international, applying to any production undertaken in any year after the base period.

• d) Payments shall be available only to producers in eligible regions, but generally available to all producers within such regions.

• e) Where related to production factors, payments shall be made at a degressive rate above a threshold level of the factor concerned.

• f) The payments shall be limited to the extra costs or loss of income involved in undertaking agricultural production in the prescribed area.

Annex 3. DOMESTIC SUPPORT: CALCULATION OF AGGREGATE MEASUREMENT OF SUPPORT

1.

Subject to the provisions of Article 6, an Aggregate Measurement of Support (AMS) shall be calculated on a product-specific basis for each basic agricultural product receiving market price support, nonexempt direct payments, or any other subsidy not exempted from the reduction commitment ("other non-exempt policies"). Support which is non-product specific shall be totalled into one non-product-specific AMS in total monetary terms.

2.

Subsidies under paragraph 1 shall include both budgetary outlays and revenue foregone by governments or their agents.

3.

Support at both the national and sub-national level shall be included.

4.

Specific agricultural levies or fees paid by producers shall be deducted from the AMS.

5.

The AMS calculated as outlined below for the base period shall constitute the base level for the implementation of the reduction commitment on domestic support.

6.

For each basic agricultural product, a specific AMS shall be established, expressed in total monetary value terms.

7.

The AMS shall be calculated as close as practicable to the point of first sale of the basic agricultural product concerned. Measures directed at agricultural processors shall be included to the extent that such measures benefit the producers of the basic agricultural products.

8.

Market price support: market price support shall be calculated using the gap between a fixed external reference price and the applied administered price multiplied by the quantity of production eligible to receive the applied administered price. Budgetary payments made to maintain this gap, such as buying-in or storage costs, shall not be included in the AMS.

9.

The fixed external reference price shall be based on the years 1986 to 1988 and shall generally be the average f.o.b. unit value for the basic agricultural product concerned in a net exporting country and the average c.i.f. unit value for the basic agricultural product concerned in a net importing country in the base period. The fixed reference price may be adjusted for quality differences as necessary.

10.

Non-exempt direct payments: non-exempt direct payments which are dependent on a price gap shall be calculated either using the gap between the fixed reference price and the applied administered price multiplied by the quantity of production eligible to receive the administered price, or using budgetary outlays.

11.

The fixed reference price shall be based on the years 1986 to 1988 and shall generally be the actual price used for determining payment rates.

12.

Non-exempt direct payments which are based on factors other than price shall be measured using budgetary outlays.

13.

Other non-exempt measures, including input subsidies and other measures such as marketing-cost reduction measures: the value of such measures shall be measured using government budgetary outlays or, where the use of budgetary outlays does not reflect the full extent of the subsidy concerned, the basis for calculating the subsidy shall be the gap between the price of the subsidized good or service and a representative market price for a similar good or service multiplied by the quantity of the good or service.

Annex 4. DOMESTIC SUPPORT: CALCULATION OF EQUIVALENT MEASUREMENT OF SUPPORT

1.

Subject to the provisions of Article 6, equivalent measurements of support shall be calculated in respect of all basic agricultural products where market price support as defined in Annex 3 exists but for which calculation of this component of the AMS is not practicable. For such products the base level for implementation of the domestic support reduction commitments shall consist of a market price support component expressed in terms of equivalent measurements of support under paragraph 2 below, as well as any non-exempt direct payments and other non-exempt support, which shall be evaluated as provided for under paragraph 3 below. Support at both national and sub-national level shall be included.

2.

The equivalent measurements of support provided for in paragraph 1 shall be calculated on a product-specific basis for all basic agricultural products as close as practicable to the point of first sale receiving market price support and for which the calculation of the market price support component of the AMS is not practicable. For those basic agricultural products, equivalent measurements of market price support shall be made using the applied administered price and the quantity of production eligible to receive that price or, where this is not practicable, on budgetary outlays used to maintain the producer price.

3.

Where basic agricultural products falling under paragraph 1 are the subject of non-exempt direct payments or any other product-specific subsidy not exempted from the reduction commitment, the basis for equivalent measurements of support concerning these measures shall be calculations as for the corresponding AMS components (specified in paragraphs 10 through 13 of Annex 3).

4.

Equivalent measurements of support shall be calculated on the amount of subsidy as close as practicable to the point of first sale of the basic agricultural product concerned. Measures directed at agricultural processors shall be included to the extent that such measures benefit the producers of the basic agricultural products. Specific agricultural levies or fees paid by producers shall reduce the equivalent measurements of support by a corresponding amount.

Annex 5. SPECIAL TREATMENT WITH RESPECT TO PARAGRAPH 2 OF ARTICLE 4

Section A

1.

The provisions of paragraph 2 of Article 4 shall not apply with effect from the entry into force of the WTO Agreement to any primary agricultural product and its worked and/or prepared products ("designated products") in respect of which the following conditions are complied with (hereinafter referred to as "special treatment"):

• a) imports of the designated products comprised less than 3 per cent of corresponding domestic consumption in the base period 1986-1988 ("the base period");

• b) no export subsidies have been provided since the beginning of the base period for the designated products;

• c) effective production-restricting measures are applied to the primary agricultural product;

• d) such products are designated with the symbol "ST-Annex 5" in Section I-B of Part I of a Member's Schedule annexed to the Marrakesh Protocol, as being subject to special treatment reflecting factors of non-trade concerns, such as food security and environmental protection; and

• e) minimum access opportunities in respect of the designated products correspond, as specified in Section I-B of Part I of the Schedule of the Member concerned, to 4 per cent of base period domestic consumption of the designated products from the beginning of the first year of the implementation period and, thereafter, are increased by 0.8 per cent of corresponding domestic consumption in the base period per year for the remainder of the implementation period.

2.

At the beginning of any year of the implementation period a Member may cease to apply special treatment in respect of the designated products by complying with the provisions of paragraph 6. In such a case, the Member concerned shall maintain the minimum access opportunities already in effect at such time and increase the minimum access opportunities by 0.4 per cent of corresponding domestic consumption in the base period per year for the remainder of the implementation period. Thereafter, the level of minimum access opportunities resulting from this formula in the final year of the implementation period shall be maintained in the Schedule of the Member concerned.

3.

Any negotiation on the question of whether there can be a continuation of the special treatment as set out in paragraph 1 after the end of the implementation period shall be completed within the time-frame of the implementation period itself as a part of the negotiations set out in Article 20 of this Agreement, taking into account the factors of non-trade concerns.

4.

If it is agreed as a result of the negotiation referred to in paragraph 3 that a Member may continue to apply the special treatment, such Member shall confer additional and acceptable concessions as determined in that negotiation.

5.

Where the special treatment is not to be continued at the end of the implementation period, the Member concerned shall implement the provisions of paragraph 6. In such a case, after the end of the implementation period the minimum access opportunities for the designated products shall be maintained at the level of 8 per cent of corresponding domestic consumption in the base period in the Schedule of the Member concerned.

6.

Border measures other than ordinary customs duties maintained in respect of the designated products shall become subject to the provisions of paragraph 2 of Article 4 with effect from the beginning of the year in which the special treatment ceases to apply. Such products shall be subject to ordinary customs duties, which shall be bound in the Schedule of the Member concerned and applied, from the beginning of the year in which special treatment ceases and thereafter, at such rates as would have been applicable had a reduction of at least 15 per cent been implemented over the implementation period in equal annual installments. These duties shall be established on the basis of tariff equivalents to be calculated in accordance with the guidelines prescribed in the attachment hereto.

Section B

7.

The provisions of paragraph 2 of Article 4 shall also not apply with effect from the entry into force of the WTO Agreement to a primary agricultural product that is the predominant staple in the traditional diet of a developing country Member and in respect of which the following conditions, in addition to those specified in paragraph 1(a) through 1(d), as they apply to the products concerned, are complied with:

• a) minimum access opportunities in respect of the products concerned, as specified in Section I-B of Part I of the Schedule of the developing country Member concerned, correspond to 1 per cent of base period domestic consumption of the products concerned from the beginning of the first year of the implementation period and are increased in equal annual installments to 2 per cent of corresponding domestic consumption in the base period at the beginning of the fifth year of the implementation period. From the beginning of the sixth year of the implementation period, minimum access opportunities in respect of the products concerned correspond to 2 per cent of corresponding domestic consumption in the base period and are increased in equal annual installments to 4 per cent of corresponding domestic consumption in the base period until the beginning of the 10th year. Thereafter, the level of minimum access opportunities resulting from this formula in the 10th year shall be maintained in the Schedule of the developing country Member concerned

• b) appropriate market access opportunities have been provided for in other products under this Agreement.

8.

Any negotiation on the question of whether there can be a continuation of the special treatment as set out in paragraph 7 after the end of the 10th year following the beginning of the implementation period shall be initiated and completed within the time-frame of the 10th year itself following the beginning of the implementation period.

9.

If it is agreed as a result of the negotiation referred to in paragraph 8 that a Member may continue to apply the special treatment, such Member shall confer additional and acceptable concessions as determined in that negotiation.

10.

In the event that special treatment under paragraph 7 is not to be continued beyond the 10th year following the beginning of the implementation period, the products concerned shall be subject to ordinary customs duties, established on the basis of a tariff equivalent to be calculated in accordance with the guidelines prescribed in the attachment hereto, which shall be bound in the Schedule of the Member concerned. In other respects, the provisions of paragraph 6 shall apply as modified by the relevant special and differential treatment accorded to developing country Members under this Agreement.

Attachment to Annex 5

Guidelines for the Calculation of Tariff Equivalents for the Specific Purpose Specified in Paragraphs 6 and 10 of this Annex

1.

The calculation of the tariff equivalents, whether expressed as ad valorem or specific rates, shall be made using the actual difference between internal and external prices in a transparent manner. Data used shall be for the years 1986 to 1988. Tariff equivalents:

• a) shall primarily be established at the four-digit level of the HS;

• b) shall be established at the six-digit or a more detailed level of the HS wherever appropriate;

• c) shall generally be established for worked and/or prepared products by multiplying the specific tariff equivalent(s) for the primary agricultural product(s) by the proportion(s) in value terms or in physical terms as appropriate of the primary agricultural product(s) in the worked and/or prepared products, and take account, where necessary, of any additional elements currently providing protection to industry.

2.

External prices shall be, in general, actual average c.i.f. unit values for the importing country. Where average c.i.f. unit values are not available or appropriate, external prices shall be either:

• a) appropriate average c.i.f. unit values of a near country; or

• b) estimated from average f.o.b. unit values of (an) appropriate major exporter(s) adjusted by adding an estimate of insurance, freight and other relevant costs to the importing country.

3.

The external prices shall generally be converted to domestic currencies using the annual average market exchange rate for the same period as the price data.

4.

The internal price shall generally be a representative wholesale price ruling in the domestic market or an estimate of that price where adequate data is not available.

5.

The initial tariff equivalents may be adjusted, where necessary, to take account of differences in quality or variety using an appropriate coefficient.

6.

Where a tariff equivalent resulting from these guidelines is negative or lower than the current bound rate, the initial tariff equivalent may be established at the current bound rate or on the basis of national offers for that product.

7.

Where an adjustment is made to the level of a tariff equivalent which would have resulted from the above guidelines, the Member concerned shall afford, on request, full opportunities for consultation with a view to negotiating appropriate solutions.

Agreement on the application of sanitary and phytosanitary measures

Members,

Reaffirming that no Member should be prevented from adopting or enforcing measures necessary to protect human, animal or plant life or health, subject to the requirement that these measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between Members where the same conditions prevail or a disguised restriction on international trade;

Desiring to improve the human health, animal health and phytosanitary situation in all Members;

Noting that sanitary and phytosanitary measures are often applied on the basis of bilateral agreements or protocols;

Desiring the establishment of a multilateral framework of rules and disciplines to guide the development, adoption and enforcement of sanitary and phytosanitary measures in order to minimize their negative effects on trade;

Recognizing the important contribution that international standards, guidelines and recommendations can make in this regard;

Desiring to further the use of harmonized sanitary and phytosanitary measures between Members, on the basis of international standards, guidelines and recommendations developed by the relevant international organizations, including the Codex Alimentarius Commission, the International Office of Epizootics, and the relevant international and regional organizations operating within the framework of the International Plant Protection Convention, without requiring Members to change their appropriate level of protection of human, animal or plant life or health;

Recognizing that developing country Members may encounter special difficulties in complying with the sanitary or phytosanitary measures of importing Members, and as a consequence in access to markets, and also in the formulation and application of sanitary or phytosanitary measures in their own territories, and desiring to assist them in their endeavours in this regard;

Desiring therefore to elaborate rules for the application of the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article XXb)16;

Hereby agree as follows:

Article 1. General Provisions

• 1 This Agreement applies to all sanitary and phytosanitary measures which may, directly or indirectly, affect international trade. Such measures shall be developed and applied in accordance with the provisions of this Agreement.

• 2 For the purposes of this Agreement, the definitions provided in Annex A shall apply.

• 3 The annexes are an integral part of this Agreement.

• 4 Nothing in this Agreement shall affect the rights of Members under the Agreement on Technical Barriers to Trade with respect to measures not within the scope of this Agreement.

Article 2. Basic Rights and Obligations

• 1 Members have the right to take sanitary and phytosanitary measures necessary for the protection of human, animal or plant life or health, provided that such measures are not inconsistent with the provisions of this Agreement.

• 2 Members shall ensure that any sanitary or phytosanitary measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence, except as provided for in paragraph 7 of Article 5.

• 3 Members shall ensure that their sanitary and phytosanitary measures do not arbitrarily or unjustifiably discriminate between Members where identical or similar conditions prevail, including between their own territory and that of other Members. Sanitary and phytosanitary measures shall not be applied in a manner which would constitute a disguised restriction on international trade.

• 4 Sanitary or phytosanitary measures which conform to the relevant provisions of this Agreement shall be presumed to be in accordance with the obligations of the Members under the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article XX(b).

Article 3. Harmonization

• 1 To harmonize sanitary and phytosanitary measures on as wide a basis as possible, Members shall base their sanitary or phytosanitary measures on international standards, guidelines or recommendations, where they exist, except as otherwise provided for in this Agreement, and in particular in paragraph 3.

• 2 Sanitary or phytosanitary measures which conform to international standards, guidelines or recommendations shall be deemed to be necessary to protect human, animal or plant life or health, and presumed to be consistent with the relevant provisions of this Agreement and of GATT 1994.

• 3 Members may introduce or maintain sanitary or phytosanitary measures which result in a higher level of sanitary or phytosanitary protection than would be achieved by measures based on the relevant international standards, guidelines or recommendations, if there is a scientific justification, or as a consequence of the level of sanitary or phytosanitary protection a Member determines to be appropriate in accordance with the relevant provisions of paragraphs 1 through 8 of Article 5.17 Notwithstanding the above, all measures which result in a level of sanitary or phytosanitary protection different from that which would be achieved by measures based on international standards, guidelines or recommendations shall not be inconsistent with any other provision of this Agreement.

• 4 Members shall play a full part, within the limits of their resources, in the relevant international organizations and their subsidiary bodies, in particular the Codex Alimentarius Commission, the International Office of Epizootics, and the international and regional organizations operating within the framework of the International Plant Protection Convention, to promote within these organizations the development and periodic review of standards, guidelines and recommendations with respect to all aspects of sanitary and phytosanitary measures.

• 5 The Committee on Sanitary and Phytosanitary Measures provided for in paragraphs 1 and 4 of Article 12 (referred to in this Agreement as the “Committee”) shall develop a procedure to monitor the process of international harmonization and coordinate efforts in this regard with the relevant international organizations.

Article 4. Equivalence

• 1 Members shall accept the sanitary or phytosanitary measures of other Members as equivalent, even if these measures differ from their own or from those used by other Members trading in the same product, if the exporting Member objectively demonstrates to the importing Member that its measures achieve the importing Member's appropriate level of sanitary or phytosanitary protection. For this purpose, reasonable access shall be given, upon request, to the importing Member for inspection, testing and other relevant procedures.

• 2 Members shall, upon request, enter into consultations with the aim of achieving bilateral and multilateral agreements on recognition of the equivalence of specified sanitary or phytosanitary measures.

Article 5. Assessment of Risk and Determination of the Appropriate Level of Sanitary or Phytosanitary Protection

• 1 Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assessment techniques developed by the relevant international organizations.

• 2 In the assessment of risks, Members shall take into account available scientific evidence; relevant processes and production methods; relevant inspection, sampling and testing methods; prevalence of specific diseases or pests; existence of pest- or disease-free areas; relevant ecological and environmental conditions; and quarantine or other treatment.

• 3 In assessing the risk to animal or plant life or health and determining the measure to be applied for achieving the appropriate level of sanitary or phytosanitary protection from such risk, Members shall take into account as relevant economic factors: the potential damage in terms of loss of production or sales in the event of the entry, establishment or spread of a pest or disease; the costs of control or eradication in the territory of the importing Member; and the relative cost-effectiveness of alternative approaches to limiting risks.

• 4 Members should, when determining the appropriate level of sanitary or phytosanitary protection, take into account the objective of minimizing negative trade effects.

• 5 With the objective of achieving consistency in the application of the concept of appropriate level of sanitary or phytosanitary protection against risks to human life or health, or to animal and plant life or health, each Member shall avoid arbitrary or unjustifiable distinctions in the levels it considers to be appropriate in different situations, if such distinctions result in discrimination or a disguised restriction on international trade. Members shall cooperate in the Committee, in accordance with paragraphs 1, 2 and 3 of Article 12, to develop guidelines to further the practical implementation of this provision. In developing the guidelines, the Committee shall take into account all relevant factors, including the exceptional character of human health risks to which people voluntarily expose themselves.

• 6 Without prejudice to paragraph 2 of Article 3, when establishing or maintaining sanitary or phytosanitary measures to achieve the appropriate level of sanitary or phytosanitary protection, Members shall ensure that such measures are not more trade-restrictive than required to achieve their appropriate level of sanitary or phytosanitary protection, taking into account technical and economic feasibility.18

• 7 In cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organizations as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time.

• 8 When a Member has reason to believe that a specific sanitary or phytosanitary measure introduced or maintained by another Member is constraining, or has the potential to constrain, its exports and the measure is not based on the relevant international standards, guidelines or recommendations, or such standards, guidelines or recommendations do not exist, an explanation of the reasons for such sanitary or phytosanitary measure may be requested and shall be provided by the Member maintaining the measure.

Article 6. Adaptation to Regional Conditions, Including Pest- or Disease-Free Areas and Areas of Low Pest or Disease Prevalence

• 1 Members shall ensure that their sanitary or phytosanitary measures are adapted to the sanitary or phytosanitary characteristics of the area - whether all of a country, part of a country, or all or parts of several countries - from which the product originated and to which the product is destined. In assessing the sanitary or phytosanitary characteristics of a region, Members shall take into account,inter alia,the level of prevalence of specific diseases or pests, the existence of eradication or control programmes, and appropriate criteria or guidelines which may be developed by the relevant international organizations.

• 2 Members shall, in particular, recognize the concepts of pest- or disease-free areas and areas of low pest or disease prevalence. Determination of such areas shall be based on factors such as geography, ecosystems, epidemiological surveillance, and the effectiveness of sanitary or phytosanitary controls.

• 3 Exporting Members claiming that areas within their territories are pest- or disease-free areas or areas of low pest or disease prevalence shall provide the necessary evidence thereof in order to objectively demonstrate to the importing Member that such areas are, and are likely to remain, pest- or disease-free areas or areas of low pest or disease prevalence, respectively. For this purpose, reasonable access shall be given, upon request, to the importing Member for inspection, testing and other relevant procedures.

Article 7. Transparency

Members shall notify changes in their sanitary or phytosanitary measures and shall provide information on their sanitary or phytosanitary measures in accordance with the provisions of Annex B.

Article 8. Control, Inspection and Approval Procedures

Members shall observe the provisions of Annex C in the operation of control, inspection and approval procedures, including national systems for approving the use of additives or for establishing tolerances for contaminants in foods, beverages or feedstuffs, and otherwise ensure that their procedures are not inconsistent with the provisions of this Agreement.

Article 9. Technical Assistance

• 1 Members agree to facilitate the provision of technical assistance to other Members, especially developing country Members, either bilaterally or through the appropriate international organizations. Such assistance may be,inter alia,in the areas of processing technologies, research and infrastructure, including in the establishment of national regulatory bodies, and may take the form of advice, credits, donations and grants, including for the purpose of seeking technical expertise, training and equipment to allow such countries to adjust to, and comply with, sanitary or phytosanitary measures necessary to achieve the appropriate level of sanitary or phytosanitary protection in their export markets.

• 2 Where substantial investments are required in order for an exporting developing country Member to fulfil the sanitary or phytosanitary requirements of an importing Member, the latter shall consider providing such technical assistance as will permit the developing country Member to maintain and expand its market access opportunities for the product involved.

Article 10. Special and Differential Treatment

• 1 In the preparation and application of sanitary or phytosanitary measures, Members shall take account of the special needs of developing country Members, and in particular of the least-developed country Members.

• 2 Where the appropriate level of sanitary or phytosanitary protection allows scope for the phased introduction of new sanitary or phytosanitary measures, longer time-frames for compliance should be accorded on products of interest to developing country Members so as to maintain opportunities for their exports.

• 3 With a view to ensuring that developing country Members are able to comply with the provisions of this Agreement, the Committee is enabled to grant to such countries, upon request, specified, time-limited exceptions in whole or in part from obligations under this Agreement, taking into account their financial, trade and development needs.

• 4 Members should encourage and facilitate the active participation of developing country Members in the relevant international organizations.

Article 11. Consultations and Dispute Settlement

• 1 The provisions of Articles XXII and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding shall apply to consultations and the settlement of disputes under this Agreement, except as otherwise specifically provided herein.

• 2 In a dispute under this Agreement involving scientific or technical issues, a panel should seek advice from experts chosen by the panel in consultation with the parties to the dispute. To this end, the panel may, when it deems it appropriate, establish an advisory technical experts group, or consult the relevant international organizations, at the request of either party to the dispute or on its own initiative.

• 3 Nothing in this Agreement shall impair the rights of Members under other international agreements, including the right to resort to the good offices or dispute settlement mechanisms of other international organizations or established under any international agreement.

Article 12. Administration

• 1 A Committee on Sanitary and Phytosanitary Measures is hereby established to provide a regular forum for consultations. It shall carry out the functions necessary to implement the provisions of this Agreement and the furtherance of its objectives, in particular with respect to harmonization. The Committee shall reach its decisions by consensus.

• 2 The Committee shall encourage and facilitate ad hoc consultations or negotiations among Members on specific sanitary or phytosanitary issues. The Committee shall encourage the use of international standards, guidelines or recommendations by all Members and, in this regard, shall sponsor technical consultation and study with the objective of increasing coordination and integration between international and national systems and approaches for approving the use of food additives or for establishing tolerances for contaminants in foods, beverages or feedstuffs.

• 3 The Committee shall maintain close contact with the relevant international organizations in the field of sanitary and phytosanitary protection, especially with the Codex Alimentarius Commission, the International Office of Epizootics, and the Secretariat of the International Plant Protection Convention, with the objective of securing the best available scientific and technical advice for the administration of this Agreement and in order to ensure that unnecessary duplication of effort is avoided.

• 4 The Committee shall develop a procedure to monitor the process of international harmonization and the use of international standards, guidelines or recommendations. For this purpose, the Committee should, in conjunction with the relevant international organizations, establish a list of international standards, guidelines or recommendations relating to sanitary or phytosanitary measures which the Committee determines to have a major trade impact. The list should include an indication by Members of those international standards, guidelines or recommendations which they apply as conditions for import or on the basis of which imported products conforming to these standards can enjoy access to their markets. For those cases in which a Member does not apply an international standard, guideline or recommendation as a condition for import, the Member should provide an indication of the reason therefor, and, in particular, whether it considers that the standard is not stringent enough to provide the appropriate level of sanitary or phytosanitary protection. If a Member revises its position, following its indication of the use of a standard, guideline or recommendation as a condition for import, it should provide an explanation for its change and so inform the Secretariat as well as the relevant international organizations, unless such notification and explanation is given according to the procedures of Annex B.

• 5 In order to avoid unnecessary duplication, the Committee may decide, as appropriate, to use the information generated by the procedures, particularly for notification, which are in operation in the relevant international organizations.

• 6 The Committee may, on the basis of an initiative from one of the Members, through appropriate channels invite the relevant international organizations or their subsidiary bodies to examine specific matters with respect to a particular standard, guideline or recommendation, including the basis of explanations for non-use given according to paragraph 4.

• 7 The Committee shall review the operation and implementation of this Agreement three years after the date of entry into force of the WTO Agreement, and thereafter as the need arises. Where appropriate, the Committee may submit to the Council for Trade in Goods proposals to amend the text of this Agreement having regard,inter alia,to the experience gained in its implementation.

Article 13. Implementation

Members are fully responsible under this Agreement for the observance of all obligations set forth herein. Members shall formulate and implement positive measures and mechanisms in support of the observance of the provisions of this Agreement by other than central government bodies. Members shall take such reasonable measures as may be available to them to ensure that non-governmental entities within their territories, as well as regional bodies in which relevant entities within their territories are members, comply with the relevant provisions of this Agreement. In addition, Members shall not take measures which have the effect of, directly or indirectly, requiring or encouraging such regional or non-governmental entities, or local governmental bodies, to act in a manner inconsistent with the provisions of this Agreement. Members shall ensure that they rely on the services of non-governmental entities for implementing sanitary or phytosanitary measures only if these entities comply with the provisions of this Agreement.

Article 14. Final Provisions

The least-developed country Members may delay application of the provisions of this Agreement for a period of five years following the date of entry into force of the WTO Agreement with respect to their sanitary or phytosanitary measures affecting importation or imported products. Other developing country Members may delay application of the provisions of this Agreement, other than paragraph 8 of Article 5 and Article 7, for two years following the date of entry into force of the WTO Agreement with respect to their existing sanitary or phytosanitary measures affecting importation or imported products, where such application is prevented by a lack of technical expertise, technical infrastructure or resources

Annex A. DEFINITIONS19

1. Sanitary or phytosanitary measure

- Any measure applied:

• a) to protect animal or plant life or health within the territory of the Member from risks arising from the entry, establishment or spread of pests, diseases, disease-carrying organisms or disease-causing organisms;

• b) to protect human or animal life or health within the territory of the Member from risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs;

• c) to protect human life or health within the territory of the Member from risks arising from diseases carried by animals, plants or products thereof, or from the entry, establishment or spread of pests; or

• d) to prevent or limit other damage within the territory of the Member from the entry, establishment or spread of pests.

Sanitary or phytosanitary measures include all relevant laws, decrees, regulations, requirements and procedures including,inter alia,end product criteria; processes and production methods; testing, inspection, certification and approval procedures; quarantine treatments including relevant requirements associated with the transport of animals or plants, or with the materials necessary for their survival during transport; provisions on relevant statistical methods, sampling procedures and methods of risk assessment; and packaging and labelling requirements directly related to food safety.

2. Harmonization

- The establishment, recognition and application of common sanitary and phytosanitary measures by different Members.

3. International standards, guidelines and recommendations

• a) for food safety, the standards, guidelines and recommendations established by the Codex Alimentarius Commission relating to food additives, veterinary drug and pesticide residues, contaminants, methods of analysis and sampling, and codes and guidelines of hygienic practice;

• b) for animal health and zoonoses, the standards, guidelines and recommendations developed under the auspices of the International Office of Epizootics;

• c) for plant health, the international standards, guidelines and recommendations developed under the auspices of the Secretariat of the International Plant Protection Convention in cooperation with regional organizations operating within the framework of the International Plant Protection Convention; and

• d) for matters not covered by the above organizations, appropriate standards, guidelines and recommendations promulgated by other relevant international organizations open for membership to all Members, as identified by the Committee.

4. Risk assessment

- The evaluation of the likelihood of entry, establishment or spread of a pest or disease within the territory of an importing Member according to the sanitary or phytosanitary measures which might be applied, and of the associated potential biological and economic consequences; or the evaluation of the potential for adverse effects on human or animal health arising from the presence of additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs.

5. Appropriate level of sanitary or phytosanitary protection

-The level of protection deemed appropriate by the Member establishing a sanitary or phytosanitary measure to protect human, animal or plant life or health within its territory.

NOTE: Many Members otherwise refer to this concept as the "acceptable level of risk".

6. Pest or disease-free area

- An area, whether all of a country, part of a country, or all or parts of several countries, as identified by the competent authorities, in which a specific pest or disease does not occur.

NOTE: A pest- or disease-free area may surround, be surrounded by, or be adjacent to an area - whether within part of a country or in a geographic region which includes parts of or all of several countries - in which a specific pest or disease is known to occur but is subject to regional control measures such as the establishment of protection, surveillance and buffer zones which will confine or eradicate the pest or disease in question.

7. Area of low pest or disease prevalence

- An area, whether all of a country, part of a country, or all or parts of several countries, as identified by the competent authorities, in which a specific pest or disease occurs at low levels and which is subject to effective surveillance, control or eradication measures.

Annex B. TRANSPARENCY OF SANITARY AND PHYTOSANITARY REGULATIONS

Publication of regulations

1.

Members shall ensure that all sanitary and phytosanitary regulations20which have been adopted are published promptly in such a manner as to enable interested Members to become acquainted with them.

2.

Except in urgent circumstances, Members shall allow a reasonable interval between the publication of a sanitary or phytosanitary regulation and its entry into force in order to allow time for producers in exporting Members, and particularly in developing country Members, to adapt their products and methods of production to the requirements of the importing Member.

Enquiry points

3.

Each Member shall ensure that one enquiry point exists which is responsible for the provision of answers to all reasonable questions from interested Members as well as for the provision of relevant documents regarding:

• a) any sanitary or phytosanitary regulations adopted or proposed within its territory;

• b) any control and inspection procedures, production and quarantine treatment, pesticide tolerance and food additive approval procedures, which are operated within its territory;

• c) risk assessment procedures, factors taken into consideration, as well as the determination of the appropriate level of sanitary or phytosanitary protection;

• d) the membership and participation of the Member, or of relevant bodies within its territory, in international and regional sanitary and phytosanitary organizations and systems, as well as in bilateral and multilateral agreements and arrangements within the scope of this Agreement, and the texts of such agreements and arrangements.

4.

Members shall ensure that where copies of documents are requested by interested Members, they are supplied at the same price (if any), apart from the cost of delivery, as to the nationals21of the Member concerned.

Notification procedures

5.

Whenever an international standard, guideline or recommendation does not exist or the content of a proposed sanitary or phytosanitary regulation is not substantially the same as the content of an international standard, guideline or recommendation, and if the regulation may have a significant effect on trade of other Members, Members shall:

• a) publish a notice at an early stage in such a manner as to enable interested Members to become acquainted with the proposal to introduce a particular regulation;

• b) notify other Members, through the Secretariat, of the products to be covered by the regulation together with a brief indication of the objective and rationale of the proposed regulation. Such notifications shall take place at an early stage, when amendments can still be introduced and comments taken into account;

• c) provide upon request to other Members copies of the proposed regulation and, whenever possible, identify the parts which in substance deviate from international standards, guidelines or recommendations;

• d) without discrimination, allow reasonable time for other Members to make comments in writing, discuss these comments upon request, and take the comments and the results of the discussions into account.

6.

However, where urgent problems of health protection arise or threaten to arise for a Member, that Member may omit such of the steps enumerated in paragraph 5 of this Annex as it finds necessary, provided that the Member:

• a) immediately notifies other Members, through the Secretariat, of the particular regulation and the products covered, with a brief indication of the objective and the rationale of the regulation, including the nature of the urgent problem(s);

• b) provides, upon request, copies of the regulation to other Members;

• c) allows other Members to make comments in writing, discusses these comments upon request, and takes the comments and the results of the discussions into account.

7.

Notifications to the Secretariat shall be in English, French or Spanish.

8.

Developed country Members shall, if requested by other Members, provide copies of the documents or, in case of voluminous documents, summaries of the documents covered by a specific notification in English, French or Spanish.

9.

The Secretariat shall promptly circulate copies of the notification to all Members and interested international organizations and draw the attention of developing country Members to any notifications relating to products of particular interest to them.

10.

10. Members shall designate a single central government authority as responsible for the implementation, on the national level, of the provisions concerning notification procedures according to paragraphs 5, 6, 7 and 8 of this Annex.

General reservations

11.

Nothing in this Agreement shall be construed as requiring:

• a) the provision of particulars or copies of drafts or the publication of texts other than in the language of the Member except as stated in paragraph 8 of this Annex; or

• b) Members to disclose confidential information which would impede enforcement of sanitary or phytosanitary legislation or which would prejudice the legitimate commercial interests of particular enterprises.

Annex C. CONTROL, INSPECTION AND APPROVAL PROCEDURES22

1.

Members shall ensure, with respect to any procedure to check and ensure the fulfilment of sanitary or phytosanitary measures, that:

• a) such procedures are undertaken and completed without undue delay and in no less favourable manner for imported products than for like domestic products;

• b) the standard processing period of each procedure is published or that the anticipated processing period is communicated to the applicant upon request; when receiving an application, the competent body promptly examines the completeness of the documentation and informs the applicant in a precise and complete manner of all deficiencies; the competent body transmits as soon as possible the results of the procedure in a precise and complete manner to the applicant so that corrective action may be taken if necessary; even when the application has deficiencies, the competent body proceeds as far as practicable with the procedure if the applicant so requests; and that upon request, the applicant is informed of the stage of the procedure, with any delay being explained;

• c) information requirements are limited to what is necessary for appropriate control, inspection and approval procedures, including for approval of the use of additives or for the establishment of tolerances for contaminants in food, beverages or feedstuffs;

• d) the confidentiality of information about imported products arising from or supplied in connection with control, inspection and approval is respected in a way no less favourable than for domestic products and in such a manner that legitimate commercial interests are protected;

• e) any requirements for control, inspection and approval of individual specimens of a product are limited to what is reasonable and necessary;

• f) any fees imposed for the procedures on imported products are equitable in relation to any fees charged on like domestic products or products originating in any other Member and should be no higher than the actual cost of the service;

• g) the same criteria should be used in the siting of facilities used in the procedures and the selection of samples of imported products as for domestic products so as to minimize the inconvenience to applicants, importers, exporters or their agents;

• h) whenever specifications of a product are changed subsequent to its control and inspection in light of the applicable regulations, the procedure for the modified product is limited to what is necessary to determine whether adequate confidence exists that the product still meets the regulations concerned; and

• i) a procedure exists to review complaints concerning the operation of such procedures and to take corrective action when a complaint is justified.

Where an importing Member operates a system for the approval of the use of food additives or for the establishment of tolerances for contaminants in food, beverages or feedstuffs which prohibits or restricts access to its domestic markets for products based on the absence of an approval, the importing Member shall consider the use of a relevant international standard as the basis for access until a final determination is made.

2.

Where a sanitary or phytosanitary measure specifies control at the level of production, the Member in whose territory the production takes place shall provide the necessary assistance to facilitate such control and the work of the controlling authorities.

3.

Nothing in this Agreement shall prevent Members from carrying out reasonable inspection within their own territories.

Agreement on textiles and clothing

Members,

Recalling that Ministers agreed at Punta del Este that "negotiations in the area of textiles and clothing shall aim to formulate modalities that would permit the eventual integration of this sector into GATT on the basis of strengthened GATT rules and disciplines, thereby also contributing to the objective of further liberalization of trade";

Recalling also that in the April 1989 Decision of the Trade Negotiations Committee it was agreed that the process of integration should commence following the conclusion of the Uruguay Round of Multilateral Trade Negotiations and should be progressive in character;

Recalling further that it was agreed that special treatment should be accorded to the least-developed country Members;

Hereby agree as follows:

Article 1

• 1 This Agreement sets out provisions to be applied by Members during a transition period for the integration of the textiles and clothing sector into GATT 1994.

• 2 Members agree to use the provisions of paragraph 18 of Article 2 and paragraph 6(b) of Article 6 in such a way as to permit meaningful increases in access possibilities for small suppliers and the development of commercially significant trading opportunities for new entrants in the field of textiles and clothing trade.23

• 3 Members shall have due regard to the situation of those Members which have not accepted the Protocols extending the Arrangement Regarding International Trade in Textiles (referred to in this Agreement as the "MFA") since 1986 and, to the extent possible, shall afford them special treatment in applying the provisions of this Agreement.

• 4 Members agree that the particular interests of the cotton-producing exporting Members should, in consultation with them, be reflected in the implementation of the provisions of this Agreement.

• 5 In order to facilitate the integration of the textiles and clothing sector into GATT 1994, Members should allow for continuous autonomous industrial adjustment and increased competition in their markets.

• 6 Unless otherwise provided in this Agreement, its provisions shall not affect the rights and obligations of Members under the provisions of the WTO Agreement and the Multilateral Trade Agreements.

• 7 The textile and clothing products to which this Agreement applies are set out in the Annex.

Article 2

• 1 All quantitative restrictions within bilateral agreements maintained under Article 4 or notified under Article 7 or 8 of the MFA in force on the day before the entry into force of the WTO Agreement shall, within 60 days following such entry into force, be notified in detail, including the restraint levels, growth rates and flexibility provisions, by the Members maintaining such restrictions to the Textiles Monitoring Body provided for in Article 8 (referred to in this Agreement as the "TMB"). Members agree that as of the date of entry into force of the WTO Agreement, all such restrictions maintained between GATT 1947 contracting parties, and in place on the day before such entry into force, shall be governed by the provisions of this Agreement.

• 2 The TMB shall circulate these notifications to all Members for their information. It is open to any Member to bring to the attention of the TMB, within 60 days of the circulation of the notifications, any observations it deems appropriate with regard to such notifications. Such observations shall be circulated to the other Members for their information. The TMB may make recommendations, as appropriate, to the Members concerned.

• 3 When the 12-month period of restrictions to be notified under paragraph 1 does not coincide with the 12-month period immediately preceding the date of entry into force of the WTO Agreement, the Members concerned should mutually agree on arrangements to bring the period of restrictions into line with the agreement year24, and to establish notional base levels of such restrictions in order to implement the provisions of this Article. Concerned Members agree to enter into consultations promptly upon request with a view to reaching such mutual agreement. Any such arrangements shall take into account, inter alia, seasonal patterns of shipments in recent years. The results of these consultations shall be notified to the TMB, which shall make such recommendations as it deems appropriate to the Members concerned.

• 4 The restrictions notified under paragraph 1 shall be deemed to constitute the totality of such restrictions applied by the respective Members on the day before the entry into force of the WTO Agreement. No new restrictions in terms of products or Members shall be introduced except under the provisions of this Agreement or relevant GATT 1994 provisions.25Restrictions not notified within 60 days of the date of entry into force of the WTO Agreement shall be terminated forthwith.

• 5 Any unilateral measure taken under Article 3 of the MFA prior to the date of entry into force of the WTO Agreement may remain in effect for the duration specified therein, but not exceeding 12 months, if it has been reviewed by the Textiles Surveillance Body (referred to in this Agreement as the "TSB") established under the MFA. Should the TSB not have had the opportunity to review any such unilateral measure, it shall be reviewed by the TMB in accordance with the rules and procedures governing Article 3 measures under the MFA. Any measure applied under an MFA Article 4 agreement prior to the date of entry into force of the WTO Agreement that is the subject of a dispute which the TSB has not had the opportunity to review shall also be reviewed by the TMB in accordance with the MFA rules and procedures applicable for such a review.

• 6 On the date of entry into force of the WTO Agreement, each Member shall integrate into GATT 1994 products which accounted for not less than 16 per cent of the total volume of the Member's 1990 imports of the products in the Annex, in terms of HS lines or categories. The products to be integrated shall encompass products from each of the following four groups: tops and yarns, fabrics, made-up textile products, and clothing.

• 7 Full details of the actions to be taken pursuant to paragraph 6 shall be notified by the Members concerned according to the following:

  • a) Members maintaining restrictions falling under paragraph 1 undertake, notwithstanding the date of entry into force of the WTO Agreement, to notify such details to the GATT Secretariat not later than the date determined by the Ministerial Decision of 15 April 1994. The GATT Secretariat shall promptly circulate these notifications to the other participants for information. These notifications will be made available to the TMB, when established, for the purposes of paragraph 21;

  • b) Members which have, pursuant to paragraph 1 of Article 6, retained the right to use the provisions of Article 6, shall notify such details to the TMB not later than 60 days following the date of entry into force of the WTO Agreement, or, in the case of those Members covered by paragraph 3 of Article 1, not later than at the end of the 12th month that the WTO Agreement is in effect. The TMB shall circulate these notifications to the other Members for information and review them as provided in paragraph 21.

• 8 The remaining products, i.e. the products not integrated into GATT 1994 under paragraph 6, shall be integrated, in terms of HS lines or categories, in three stages, as follows:

  • a) on the first day of the 37th month that the WTO Agreement is in effect, products which accounted for not less than 17 per cent of the total volume of the Member's 1990 imports of the products in the Annex. The products to be integrated by the Members shall encompass products from each of the following four groups: tops and yarns, fabrics, made-up textile products, and clothing;

  • b) on the first day of the 85th month that the WTO Agreement is in effect, products which accounted for not less than 18 per cent of the total volume of the Member's 1990 imports of the products in the Annex. The products to be integrated by the Members shall encompass products from each of the following four groups: tops and yarns, fabrics, made-up textile products, and clothing;

  • c) on the first day of the 121st month that the WTO Agreement is in effect, the textiles and clothing sector shall stand integrated into GATT 1994, all restrictions under this Agreement having been eliminated.

• 9 Members which have notified, pursuant to paragraph 1 of Article 6, their intention not to retain the right to use the provisions of Article 6 shall, for the purposes of this Agreement, be deemed to have integrated their textiles and clothing products into GATT 1994. Such Members shall, therefore, be exempted from complying with the provisions of paragraphs 6 to 8 and 11.

• 10 Nothing in this Agreement shall prevent a Member which has submitted an integration programme pursuant to paragraph 6 or 8 from integrating products into GATT 1994 earlier than provided for in such a programme. However, any such integration of products shall take effect at the beginning of an agreement year, and details shall be notified to the TMB at least three months prior thereto for circulation to all Members.

• 11 The respective programmes of integration, in pursuance of paragraph 8, shall be notified in detail to the TMB at least 12 months before their coming into effect, and circulated by the TMB to all Members.

• 12 The base levels of the restrictions on the remaining products, mentioned in paragraph 8, shall be the restraint levels referred to in paragraph 1.

• 13 During Stage 1 of this Agreement (from the date of entry into force of the WTO Agreement to the 36th month that it is in effect, inclusive) the level of each restriction under MFA bilateral agreements in force for the 12-month period prior to the date of entry into force of the WTO Agreement shall be increased annually by not less than the growth rate established for the respective restrictions, increased by 16 per cent.

• 14 Except where the Council for Trade in Goods or the Dispute Settlement Body decides otherwise under paragraph 12 of Article 8, the level of each remaining restriction shall be increased annually during subsequent stages of this Agreement by not less than the following:

  • a) for Stage 2 (from the 37th to the 84th month that the WTO Agreement is in effect, inclusive), the growth rate for the respective restrictions during Stage 1, increased by 25 per cent;

  • b) for Stage 3 (from the 85th to the 120th month that the WTO Agreement is in effect, inclusive), the growth rate for the respective restrictions during Stage 2, increased by 27 per cent.

• 15 Nothing in this Agreement shall prevent a Member from eliminating any restriction maintained pursuant to this Article, effective at the beginning of any agreement year during the transition period, provided the exporting Member concerned and the TMB are notified at least three months prior to the elimination coming into effect. The period for prior notification may be shortened to 30 days with the agreement of the restrained Member. The TMB shall circulate such notifications to all Members. In considering the elimination of restrictions as envisaged in this paragraph, the Members concerned shall take into account the treatment of similar exports from other Members.

• 16 Flexibility provisions, i.e. swing, carryover and carry forward, applicable to all restrictions maintained pursuant to this Article, shall be the same as those provided for in MFA bilateral agreements for the 12-month period prior to the entry into force of the WTO Agreement. No quantitative limits shall be placed or maintained on the combined use of swing, carryover and carry forward.

• 17 Administrative arrangements, as deemed necessary in relation to the implementation of any provision of this Article, shall be a matter for agreement between the Members concerned. Any such arrangements shall be notified to the TMB.

• 18 As regards those Members whose exports are subject to restrictions on the day before the entry into force of the WTO Agreement and whose restrictions represent 1.2 per cent or less of the total volume of the restrictions applied by an importing Member as of 31 December 1991 and notified under this Article, meaningful improvement in access for their exports shall be provided, at the entry into force of the WTO Agreement and for the duration of this Agreement, through advancement by one stage of the growth rates set out in paragraphs 13 and 14, or through at least equivalent changes as may be mutually agreed with respect to a different mix of base levels, growth and flexibility provisions. Such improvements shall be notified to the TMB.

• 19 In any case, during the duration of this Agreement, in which a safeguard measure is initiated by a Member under Article XIX of GATT 1994 in respect of a particular product during a period of one year immediately following the integration of that product into GATT 1994 in accordance with the provisions of this Article, the provisions of Article XIX, as interpreted by the Agreement on Safeguards, will apply, save as set out in paragraph 20.

• 20 Where such a measure is applied using non-tariff means, the importing Member concerned shall apply the measure in a manner as set forth in paragraph 2(d) of Article XIII of GATT 1994 at the request of any exporting Member whose exports of such products were subject to restrictions under this Agreement at any time in the one-year period immediately prior to the initiation of the safeguard measure. The exporting Member concerned shall administer such a measure. The applicable level shall not reduce the relevant exports below the level of a recent representative period, which shall normally be the average of exports from the Member concerned in the last three representative years for which statistics are available. Furthermore, when the safeguard measure is applied for more than one year, the applicable level shall be progressively liberalized at regular intervals during the period of application. In such cases the exporting Member concerned shall not exercise the right of suspending substantially equivalent concessions or other obligations under paragraph 3(a) of Article XIX of GATT 1994.

• 21 The TMB shall keep under review the implementation of this Article. It shall, at the request of any Member, review any particular matter with reference to the implementation of the provisions of this Article. It shall make appropriate recommendations or findings within 30 days to the Member or Members concerned, after inviting the participation of such Members.

Article 3

• 1 Within 60 days following the date of entry into force of the WTO Agreement, Members maintaining restrictions26on textile and clothing products (other than restrictions maintained under the MFA and covered by the provisions of Article 2), whether consistent with GATT 1994 or not, shall a) notify them in detail to the TMB, or b) provide to the TMB notifications with respect to them which have been submitted to any other WTO body. The notifications should, wherever applicable, provide information with respect to any GATT 1994 justification for the restrictions, including GATT 1994 provisions on which they are based.

• 2 Members maintaining restrictions falling under paragraph 1, except those justified under a GATT 1994 provision, shall either:

  • a) bring them into conformity with GATT 1994 within one year following the entry into force of the WTO Agreement, and notify this action to the TMB for its information; or

  • b) phase them out progressively according to a programme to be presented to the TMB by the Member maintaining the restrictions not later than six months after the date of entry into force of the WTO Agreement. This programme shall provide for all restrictions to be phased out within a period not exceeding the duration of this Agreement. The TMB may make recommendations to the Member concerned with respect to such a programme.

• 3 During the duration of this Agreement, Members shall provide to the TMB, for its information, notifications submitted to any other WTO bodies with respect to any new restrictions or changes in existing restrictions on textile and clothing products, taken under any GATT 1994 provision, within 60 days of their coming into effect.

• 4 It shall be open to any Member to make reverse notifications to the TMB, for its information, in regard to the GATT 1994 justification, or in regard to any restrictions that may not have been notified under the provisions of this Article. Actions with respect to such notifications may be pursued by any Member under relevant GATT 1994 provisions or procedures in the appropriate WTO body.

• 5 The TMB shall circulate the notifications made pursuant to this Article to all Members for their information.

Article 4

• 1 Restrictions referred to in Article 2, and those applied under Article 6, shall be administered by the exporting Members. Importing Members shall not be obliged to accept shipments in excess of the restrictions notified under Article 2, or of restrictions applied pursuant to Article 6.

• 2 Members agree that the introduction of changes, such as changes in practices, rules, procedures and categorization of textile and clothing products, including those changes relating to the Harmonized System, in the implementation or administration of those restrictions notified or applied under this Agreement should not: upset the balance of rights and obligations between the Members concerned under this Agreement; adversely affect the access available to a Member; impede the full utilization of such access; or disrupt trade under this Agreement.

• 3 If a product which constitutes only part of a restriction is notified for integration pursuant to the provisions of Article 2, Members agree that any change in the level of that restriction shall not upset the balance of rights and obligations between the Members concerned under this Agreement.

• 4 When changes mentioned in paragraphs 2 and 3 are necessary, however, Members agree that the Member initiating such changes shall inform and, wherever possible, initiate consultations with the affected Member or Members prior to the implementation of such changes, with a view to reaching a mutually acceptable solution regarding appropriate and equitable adjustment. Members further agree that where consultation prior to implementation is not feasible, the Member initiating such changes will, at the request of the affected Member, consult, within 60 days if possible, with the Members concerned with a view to reaching a mutually satisfactory solution regarding appropriate and equitable adjustments. If a mutually satisfactory solution is not reached, any Member involved may refer the matter to the TMB for recommendations as provided in Article 8. Should the TSB not have had the opportunity to review a dispute concerning such changes introduced prior to the entry into force of the WTO Agreement, it shall be reviewed by the TMB in accordance with the rules and procedures of the MFA applicable for such a review.

Article 5

• 1 Members agree that circumvention by transshipment, re-routing, false declaration concerning country or place of origin, and falsification of official documents, frustrates the implementation of this Agreement to integrate the textiles and clothing sector into GATT 1994. Accordingly, Members should establish the necessary legal provisions and/or administrative procedures to address and take action against such circumvention. Members further agree that, consistent with their domestic laws and procedures, they will cooperate fully to address problems arising from circumvention.

• 2 Should any Member believe that this Agreement is being circumvented by transshipment, re-routing, false declaration concerning country or place of origin, or falsification of official documents, and that no, or inadequate, measures are being applied to address and/or to take action against such circumvention, that Member should consult with the Member or Members concerned with a view to seeking a mutually satisfactory solution. Such consultations should be held promptly, and within 30 days when possible. If a mutually satisfactory solution is not reached, the matter may be referred by any Member involved to the TMB for recommendations.

• 3 Members agree to take necessary action, consistent with their domestic laws and procedures, to prevent, to investigate and, where appropriate, to take legal and/or administrative action against circumvention practices within their territory. Members agree to cooperate fully, consistent with their domestic laws and procedures, in instances of circumvention or alleged circumvention of this Agreement, to establish the relevant facts in the places of import, export and, where applicable, transshipment. It is agreed that such cooperation, consistent with domestic laws and procedures, will include: investigation of circumvention practices which increase restrained exports to the Member maintaining such restraints; exchange of documents, correspondence, reports and other relevant information to the extent available; and facilitation of plant visits and contacts, upon request and on a case-by-case basis. Members should endeavour to clarify the circumstances of any such instances of circumvention or alleged circumvention, including the respective roles of the exporters or importers involved.

• 4 Where, as a result of investigation, there is sufficient evidence that circumvention has occurred (e.g. where evidence is available concerning the country or place of true origin, and the circumstances of such circumvention), Members agree that appropriate action, to the extent necessary to address the problem, should be taken. Such action may include the denial of entry of goods or, where goods have entered, having due regard to the actual circumstances and the involvement of the country or place of true origin, the adjustment of charges to restraint levels to reflect the true country or place of origin. Also, where there is evidence of the involvement of the territories of the Members through which the goods have been transshipped, such action may include the introduction of restraints with respect to such Members. Any such actions, together with their timing and scope, may be taken after consultations held with a view to arriving at a mutually satisfactory solution between the concerned Members and shall be notified to the TMB with full justification. The Members concerned may agree on other remedies in consultation. Any such agreement shall also be notified to the TMB, and the TMB may make such recommendations to the Members concerned as it deems appropriate. If a mutually satisfactory solution is not reached, any Member concerned may refer the matter to the TMB for prompt review and recommendations.

• 5 Members note that some cases of circumvention may involve shipments transiting through countries or places with no changes or alterations made to the goods contained in such shipments in the places of transit. They note that it may not be generally practicable for such places of transit to exercise control over such shipments.

• 6 Members agree that false declaration concerning fibre content, quantities, description or classification of merchandise also frustrates the objective of this Agreement. Where there is evidence that any such false declaration has been made for purposes of circumvention, Members agree that appropriate measures, consistent with domestic laws and procedures, should be taken against the exporters or importers involved. Should any Member believe that this Agreement is being circumvented by such false declaration and that no, or inadequate, administrative measures are being applied to address and/or to take action against such circumvention, that Member should consult promptly with the Member involved with a view to seeking a mutually satisfactory solution. If such a solution is not reached, the matter may be referred by any Member involved to the TMB for recommendations. This provision is not intended to prevent Members from making technical adjustments when inadvertent errors in declarations have been made.

Article 6

• 1 Members recognize that during the transition period it may be necessary to apply a specific transitional safeguard mechanism (referred to in this Agreement as "transitional safeguard"). The transitional safeguard may be applied by any Member to products covered by the Annex, except those integrated into GATT 1994 under the provisions of Article 2. Members not maintaining restrictions falling under Article 2 shall notify the TMB within 60 days following the date of entry into force of the WTO Agreement, as to whether or not they wish to retain the right to use the provisions of this Article. Members which have not accepted the Protocols extending the MFA since 1986 shall make such notification within 6 months following the entry into force of the WTO Agreement. The transitional safeguard should be applied as sparingly as possible, consistently with the provisions of this Article and the effective implementation of the integration process under this Agreement.

• 2 Safeguard action may be taken under this Article when, on the basis of a determination by a Member27it is demonstrated that a particular product is being imported into its territory in such increased quantities as to cause serious damage, or actual threat thereof, to the domestic industry producing like and/or directly competitive products. Serious damage or actual threat thereof must demonstrably be caused by such increased quantities in total imports of that product and not by such other factors as technological changes or changes in consumer preference.

• 3 In making a determination of serious damage, or actual threat thereof, as referred to in paragraph 2, the Member shall examine the effect of those imports on the state of the particular industry, as reflected in changes in such relevant economic variables as output, productivity, utilization of capacity, inventories, market share, exports, wages, employment, domestic prices, profits and investment; none of which, either alone or combined with other factors, can necessarily give decisive guidance.

• 4 Any measure invoked pursuant to the provisions of this Article shall be applied on a Member-by-Member basis. The Member or Members to whom serious damage, or actual threat thereof, referred to in paragraphs 2 and 3, is attributed, shall be determined on the basis of a sharp and substantial increase in imports, actual or imminent28, from such a Member or Members individually, and on the basis of the level of imports as compared with imports from other sources, market share, and import and domestic prices at a comparable stage of commercial transaction; none of these factors, either alone or combined with other factors, can necessarily give decisive guidance. Such safeguard measure shall not be applied to the exports of any Member whose exports of the particular product are already under restraint under this Agreement.

• 5 The period of validity of a determination of serious damage or actual threat thereof for the purpose of invoking safeguard action shall not exceed 90 days from the date of initial notification as set forth in paragraph 7.

• 6 In the application of the transitional safeguard, particular account shall be taken of the interests of exporting Members as set out below:

  • a) least-developed country Members shall be accorded treatment significantly more favourable than that provided to the other groups of Members referred to in this paragraph, preferably in all its elements but, at least, on overall terms;

  • b) Members whose total volume of textile and clothing exports is small in comparison with the total volume of exports of other Members and who account for only a small percentage of total imports of that product into the importing Member shall be accorded differential and more favourable treatment in the fixing of the economic terms provided in paragraphs 8, 13 and 14. For those suppliers, due account will be taken, pursuant to paragraphs 2 and 3 of Article 1, of the future possibilities for the development of their trade and the need to allow commercial quantities of imports from them;

  • c) with respect to wool products from wool-producing developing country Members whose economy and textiles and clothing trade are dependent on the wool sector, whose total textile and clothing exports consist almost exclusively of wool products, and whose volume of textiles and clothing trade is comparatively small in the markets of the importing Members, special consideration shall be given to the export needs of such Members when considering quota levels, growth rates and flexibility;

  • d) more favourable treatment shall be accorded to re-imports by a Member of textile and clothing products which that Member has exported to another Member for processing and subsequent re-importation, as defined by the laws and practices of the importing Member, and subject to satisfactory control and certification procedures, when these products are imported from a Member for which this type of trade represents a significant proportion of its total exports of textiles and clothing.

• 7 The Member proposing to take safeguard action shall seek consultations with the Member or Members which would be affected by such action. The request for consultations shall be accompanied by specific and relevant factual information, as up-to-date as possible, particularly in regard to: (a) the factors, referred to in paragraph 3, on which the Member invoking the action has based its determination of the existence of serious damage or actual threat thereof; and (b) the factors, referred to in paragraph 4, on the basis of which it proposes to invoke the safeguard action with respect to the Member or Members concerned. In respect of requests made under this paragraph, the information shall be related, as closely as possible, to identifiable segments of production and to the reference period set out in paragraph 8. The Member invoking the action shall also indicate the specific level at which imports of' the product in question from the Member or Members concerned arc proposed to be restrained; such level shall not be lower than the level referred to in paragraph 8. The Member seeking consultations shall, at the same time, communicate to the Chairman of the TMB the request for consultations, including all the relevant factual data outlined in paragraphs 3 and 4, together with the proposed restraint level. The Chairman shall inform the members of the TMB of the request for consultations, indicating the requesting Member, the product in question and the Member having received the request. The Member or Members concerned shall respond to this request promptly and the consultations shall be held without delay and normally be completed within 60 days of the date on which the request was received.

• 8 If, in the consultations, there is mutual understanding that the situation calls for restraint on the exports of the particular product from the Member or Members concerned, the level of such restraint shall be fixed at a level not lower than the actual level of exports or imports from the Member concerned during the 12-month period terminating two months preceding the month in which the request for consultation was made.

• 9 Details of the agreed restraint measure shall be communicated to the TMB within 60 days from the date of conclusion of the agreement. The TMB shall determine whether the agreement is justified in accordance with the provisions of this Article. In order to make its determination, the TMB shall have available to it the factual data provided to the Chairman of the TMB, referred to in paragraph 7, as well as any other relevant information provided by the Members concerned. The TMB may make such recommendations as it deems appropriate to the Members concerned.

• 10 If, however, after the expiry of the period of 60 days from the date on which the request for consultations was received, there has been no agreement between the Members, the Member which proposed to take safeguard action may apply the restraint by date of import or date of export, in accordance with the provisions of this Article, within 30 days following the 60-day period for consultations, and at the same time refer the matter to the TMB. It shall be open to either Member to refer the matter to the TMB before the expiry of the period of 60 days. In either case, the TMB shall promptly conduct an examination of the matter, including the determination of serious damage, or actual threat thereof, and its causes, and make appropriate recommendations to the Members concerned within 30 days. In order to conduct such examination, the TMB shall have available to it the factual data provided to the Chairman of the TMB, referred to in paragraph 7, as well as any other relevant information provided by the Members concerned.

• 11 In highly unusual and critical circumstances, where delay would cause damage which would be difficult to repair, action under paragraph 10 may be taken provisionally on the condition that the request for consultations and notification to the TMB shall be effected within no more than five working days after taking the action. In the case that consultations do not produce agreement, the TMB shall be notified at the conclusion of consultations, but in any case no later than 60 days from the date of the implementation of the action. The TMB shall promptly conduct an examination of the matter, and make appropriate recommendations to the Members concerned within 30 days. In the case that consultations do produce agreement, Members shall notify the TMB upon conclusion but, in any case, no later than 90 days from the date of the implementation of the action. The TMB may make such recommendations as it deems appropriate to the Members concerned.

• 12 A Member may maintain measures invoked pursuant to the provisions of this Article: (a) for up to three years without extension, or (b) until the product is integrated into GATT 1994, whichever comes first.

• 13 Should the restraint measure remain in force for a period exceeding one year, the level for subsequent years shall be the level specified for the first year increased by a growth rate of not less than 6 per cent per annum, unless otherwise justified to the TMB. The restraint level for the product concerned may be exceeded in either year of any two subsequent years by carry forward and/or carryover of 10 per cent of which carry forward shall not represent more than 5 per cent. No quantitative limits shall be placed on the combined use of carryover, carry forward and the provision of paragraph 14.

• 14 When more than one product from another Member is placed under restraint under this Article by a Member, the level of restraint agreed, pursuant to the provisions of this Article, for each of these products may be exceeded by 7 per cent, provided that the total exports subject to restraint do not exceed the total of the levels for all products so restrained under this Article, on the basis of agreed common units. Where the periods of application of restraints of these products do not coincide with each other, this provision shall be applied to any overlapping period on a pro rata basis.

• 15 If a safeguard action is applied under this Article to a product for which a restraint was previously in place under the MFA during the 12-month period prior to the entry into force of the WTO Agreement, or pursuant to the provisions of Article 2 or 6, the level of the new restraint shall be the level provided for in paragraph 8 unless the new restraint comes into force within one year of:

  • a) the date of notification referred to in paragraph 15 of Article 2 for the elimination of the previous restraint; or

  • b) the date of removal of the previous restraint put in place pursuant to the provisions of this Article or of the MFA in which case the level shall not be less than the higher of (i) the level of restraint for the last 12-month period during which the product was under restraint, or (ii) the level of restraint provided for in paragraph 8.

• 16 When a Member which is not maintaining a restraint under Article 2 decides to apply a restraint pursuant to the provisions of this Article, it shall establish appropriate arrangements which: (a) take full account of such factors as established tariff classification and quantitative units based on normal commercial practices in export and import transactions, both as regards fibre composition and in terms of competing for the same segment of its domestic market, and (b) avoid over-categorization. The request for consultations referred to in paragraphs 7 or 11 shall include full information on such arrangements.

Article 7

• 1 As part of the integration process and with reference to the specific commitments undertaken by the Members as a result of the Uruguay Round, all Members shall take such actions as may be necessary to abide by GATT 1994 rules and disciplines so as to:

  • a) achieve improved access to markets for textile and clothing products through such measures as tariff reductions and bindings, reduction or elimination of non-tariff barriers, and facilitation of customs, administrative and licensing formalities;

  • b) ensure the application of policies relating to fair and equitable trading conditions as regards textiles and clothing in such areas as dumping and anti-dumping rules and procedures, subsidies and countervailing measures, and protection of intellectual property rights; and

  • c) avoid discrimination against imports in the textiles and clothing sector when taking measures for general trade policy reasons. Such actions shall be without prejudice to the rights and obligations of Members under GATT 1994.

• 2 Members shall notify to the TMB the actions referred to in paragraph 1 which have a bearing on the implementation of this Agreement. To the extent that these have been notified to other WTO bodies, a summary, with reference to the original notification, shall be sufficient to fulfil the requirements under this paragraph. It shall be open to any Member to make reverse notifications to the TMB.

• 3 Where any Member considers that another Member has not taken the actions referred to in paragraph 1, and that the balance of rights and obligations under this Agreement has been upset, that Member may bring the matter before the relevant WTO bodies and inform the TMB. Any subsequent findings or conclusions by the WTO bodies concerned shall form a part of the TMB's comprehensive report.

Article 8

• 1 In order to supervise the implementation of this Agreement, to examine all measures taken under this Agreement and their conformity therewith, and to take the actions specifically required of it by this Agreement, the Textiles Monitoring Body ("TMB") is hereby established. The TMB shall consist of a Chairman and 10 members. Its membership shall be balanced and broadly representative of the Members and shall provide for rotation of its members at appropriate intervals. The members shall be appointed by Members designated by the Council for Trade in Goods to serve on the TMB, discharging their function on an ad personam basis.

• 2 The TMB shall develop its own working procedures. It is understood, however, that consensus within the TMB does not require the assent or concurrence of members appointed by Members involved in an unresolved issue under review by the TMB.

• 3 The TMB shall be considered as a standing body and shall meet as necessary to carry out the functions required of it under this Agreement. It shall rely on notifications and information supplied by the Members under the relevant Articles of this Agreement, supplemented by any additional information or necessary details they may submit or it may decide to seek from them. It may also rely on notifications to and reports from other WTO bodies and from such other sources as it may deem appropriate.

• 4 Members shall afford to each other adequate opportunity for consultations with respect to any matters affecting the operation of this Agreement.

• 5 In the absence of any mutually agreed solution in the bilateral consultations provided for in this Agreement, the TMB shall, at the request of either Member, and following a thorough and prompt consideration of the matter, make recommendations to the Members concerned.

• 6 At the request of any Member, the TMB shall review promptly any particular matter which that Member considers to be detrimental to its interests under this Agreement and where consultations between it and the Member or Members concerned have failed to produce a mutually satisfactory solution. On such matters, the TMB may make such observations as it deems appropriate to the Members concerned and for the purposes of the review provided for in paragraph 11.

• 7 Before formulating its recommendations or observations, the TMB shall invite participation of such Members as may be directly affected by the matter in question.

• 8 Whenever the TMB is called upon to make recommendations or findings, it shall do so, preferably within a period of 30 days, unless a different time period is specified in this Agreement. All such recommendations or findings shall be communicated to the Members directly concerned. All such recommendations or findings shall also be communicated to the Council for Trade in Goods for its information.

• 9 The Members shall endeavour to accept in full the recommendations of the TMB, which shall exercise proper surveillance of the implementation of such recommendations.

• 10 If a Member considers itself unable to conform with the recommendations of the TMB, it shall provide the TMB with the reasons therefor not later than one month after receipt of such recommendations. Following thorough consideration of the reasons given, the TMB shall issue any further recommendations it considers appropriate forthwith. If, after such further recommendations, the matter remains unresolved, either Member may bring the matter before the Dispute Settlement Body and invoke paragraph 2 of Article XXIII of GATT 1994 and the relevant provisions of the Dispute Settlement Understanding.

• 11 In order to oversee the implementation of this Agreement, the Council for Trade in Goods shall conduct a major review before the end of each stage of the integration process. To assist in this review, the TMB shall, at least five months before the end of each stage, transmit to the Council for Trade in Goods a comprehensive report on the implementation of this Agreement during the stage under review, in particular in matters with regard to the integration process, the application of the transitional safeguard mechanism, and relating to the application of GATT 1994 rules and disciplines as defined in Articles 2, 3, 6 and 7 respectively. The TMB's comprehensive report may include any recommendation as deemed appropriate by the TMB to the Council for Trade in Goods.

• 12 In the light of its review the Council for Trade in Goods shall by consensus take such decisions as it deems appropriate to ensure that the balance of rights and obligations embodied in this Agreement is not being impaired. For the resolution of any disputes that may arise with respect to matters referred to in Article 7, the Dispute Settlement Body may authorize, without prejudice to the final date set out under Article 9, an adjustment to paragraph 14 of Article 2, for the stage subsequent to the review, with respect to any Member found not to be complying with its obligations under this Agreement.

Article 9

This Agreement and all restrictions thereunder shall stand terminated on the first day of the 121st month that the WTO Agreement is in effect, on which date the textiles and clothing sector shall be fully integrated into GATT 1994. There shall be no extension of this Agreement.

Annex LIST OF PRODUCTS COVERED BY THIS AGREEMENT

1.

This Annex lists textile and clothing products defined by Harmonized Commodity Description and Coding System (HS) codes at the six-digit level.

2.

Actions under the safeguard provisions in Article 6 will be taken with respect to particular textile and clothing products and not on the basis of the HS lines per se.

3.

Actions under the safeguard provisions in Article 6 of this Agreement shall not apply to:

• a) developing country Members' exports of handloom fabrics of the cottage industry, or hand-made cottage industry products made of such handloom fabrics, or traditional folklore handicraft textile and clothing products, provided that such products are properly certified under arrangements established between the Members concerned;

• b) historically traded textile products which were internationally traded in commercially significant quantities prior to 1982, such as bags, sacks, carpetbacking, cordage, luggage, mats, mattings and carpets typically made from fibres such as jute, coir, sisal, abaca, maguey and henequen;

• c) products made of pure silk.

  For such products, the provisions of Article XIX of GATT 1994, as interpreted by the Agreement on Safeguards, shall be applicable.

Products within Section XI (Textiles and Textile Articles) of the Harmonized Commodity Description and Coding System (HS) Nomenclature

HS No.	Product Description
Ch. 50	Silk
5004.00	Silk yarn (other than yarn spun from silk waste) not put up for retail sale
5005.00	Yarn spun from silk waste, not put up for retail sale
5006.00	Silk yarn&yarn spun from silk waste, put up f retail sale; silk-worm gut
5007.10	Woven fabrics of noil silk
5007.20	Woven fabrics of silk/silk waste, other than noil silk, 85%/more of such fibres
5007.90	Woven fabrics of silk, nes
Ch. 51	Wool, fine/coarse animal hair, horsehair yarn & fabric
5105.10	Carded wool
5105.21	Combed wool in fragments
5105.29	Wool tops and other combed wool, other than combed wool in fragments
5105.30	Fine animal hair, carded or combed
5106.10	Yarn of carded wool, > ∕ = 85% by weight of wool, nt put up for retail sale
5106.20	Yarn of carded, wool, < 85% by weight of wool, not put up for retail sale
5107.10	Yarn of combed wool, > ∕ = 85% by weight of wool, not put up for retail sale
5107.20	Yarn of combed wool, < 85% by weight of wool, not put up for retail sale
5108.10	Yarn of carded fine animal hair, not put up for retail sale
5108.20	Yarn of combed fine animal hair, not put up for retail sale
5109.10	Yarn of wool/of fine animal hair, > ∕ = 85% by weight of such fibres, put up
5109.90	Yarn of wool/of fine animal hair, < 85% by weight of such fibres, put up
5110.00	Yarn of coarse animal hair or of horsehair
5111.11	Woven fabrics of carded wool/fine animal hair, > ∕ = 85% by weight, < ∕ = 300 g/m2
5111.19	Woven fabrics of carded wool/fine animal hair, > ∕ = 85% by weight, > 300 g/m2
5111.20	Woven fabric of carded wool/fine animal hair, > ∕ = 85% by wt, mixd w m-m fi
5111.30	Woven fabric of carded wool/fine animal hair,>/=85% by wt, mixd w m-m fib
5111.90	Woven fabrics of carded wool/fine animal hair, > ∕ = 85% by weight, nes
5112.11	Woven fabric of combed wool/fine animal hair, > ∕ = 85% by weight, < ∕ = 200 g/m2
5112.19	Woven fabrics of combed wool/fine animal hair, > ∕ = 85% by weight, > 200 g/m2
5112.20	Woven fabrics of combed wool/fine animal hair, < 85% by wt, mixd w m-m fil
5112.30	Woven fabrics of combed wool/fine animal hair, < 85% by wt, mixd w m-m fib
5112.90	Woven fabrics of combed wool/fine animal hair, < 85% by weight, nes
5113.00	Woven fabrics of coarse animal hair or of horsehair
Ch. 52	Cotton
5204.11	Cotton sewing thread > ∕ = 85% by weight of cotton, not put up for retail sale
5204.19	Cotton sewing thread, < 85% by weight of cotton, not put up for retail sale
5204.20	Cotton sewing thread, put up for retail sale
5205.11	Cotton yarn, > ∕ = 85%,single, uncombed, > ∕ = 714.29 dtex, nt put up
5205.12	Cotton yarn, > ∕ = 85%,single, uncombed, 714.29 > dtex > ∕ = 232.56, not put up
5205.13	Cotton yarn, > ∕ = 85%,single, uncombed, 232.56 > dtex > ∕ = 192.31, not put up
5205.14	Cotton yarn, > ∕ = 85%,single, uncombed, 192.31 > dtex > ∕ = 125, not put up
5205.15	Cotton yarn, > ∕ = 85%,single, uncombed, < 125 dtex, nt put up f retail sale
5205.21	Cotton yarn, > ∕ = 85%, single, combed, > ∕ = 714.29, not put up
5205.22	Cotton yarn, > ∕ = 85%,single, combed, 714.29 > dtex > ∕ = 232.56, not put up
5205.23	Cotton yarn, > ∕ = 85%, single, combed, 232.56 > dtex > ∕ = 192.31, not put up
5205.24	Cotton yarn, > ∕ = 85%, single, combed, 192.31 > dtex > ∕ = 125, not put up
5205.25	Cotton yarn, > ∕ = 85%,single, combed, < 125 dtex, not put up for retail sale
5205.31	Cotton yarn, > ∕ = 85%, multi, uncombed, > ∕ = 714.29 dtex, not put up, nes
5205.32	Cotton yarn, > ∕ = 85%,multi, uncombed, 714.29 > dtex > ∕ = 232.56, not put up, nes
5205.33	Cotton yarn, > ∕ = 85%,multi, uncombed, 232.56 > dtex > /= 192.31, not put up, nes
5205.34	Cotton yarn, > ∕ = 85%,multi, uncombed, 192.31 > dtex > /= 125, nt put up, nes
5205.35	Cotton yarn, > ∕ = 85%,multi, uncombed, <125 dtex, not put up, nes
5205.41	Cotton yarn, > ∕ = 85%, multiple, combed,>/=714.29 dtex, not put up, nes
5205.42	Cotton yarn, > ∕ = 85%,multi, combed, 714.29 > dtex > /= 232.56, nt put up, nes
5205.43	Cotton yarn, > ∕ = 85%,multi, combed, 232.56 > dtex > /= 192.31, nt put up, nes
5205.44	Cotton yarn, > ∕ = 85%,multiple, combed, 192.31 > dtex > /= 125, not put up, nes
5205.45	Cotton yarn, > ∕ = 85%, multiple, combed, <125 dtex, not put up, nes
5206.11	Cotton yarn, < 85%, single, uncombed, > ∕ = 714.29, not put up
5206.12	Cotton yarn, < 85%, single, uncombed, 714.29 > dtex > /= 232.56, nt put up
5206.13	Cotton yarn, < 85%, single, uncombed, 232.56 > dtex > /= 192.31, not put up
5206.14	Cotton yarn, < 85%, single, uncombed, 192.31 > dtex > /= 125, nt put up
5206.15	Cotton yarn,< 85%,single, uncombed, < 125 dtex, not put up for retail sale
5206.21	Cotton yarn, < 85%, single, combed,>/=714.29 dtex, nt put up
5206.22	Cotton yarn, < 85%, single, combed, 714.29 > dtex > /= 232.56, not put up
5206.23	Cotton yarn, < 85%, single, combed, 232.56 > dtex > /= 192.31, not put up
5206.24	Cotton yarn, < 85%, single, combed, 192.31 > dtex > ∕ = 125, not put up
5206.25	Cotton yarn,< 85%,single, combed, < 125 dtex, not put up for retail sale
5206.31	Cotton yarn, < 85%, multiple, uncombed, > ∕ = 714.29, not put up, nes
5206.32	Cotton yarn,< 85%,multiple, uncombed, 714.29 > dtex > /= 232.56, nt put up, nes
5206.33	Cotton yarn,< 85%,multiple, uncombed, 232.56 > dtex > ∕ = 192.31, nt put up, nes
5206.34	Cotton yarn,< 85%,multiple, uncombed, 192.31 > dtex > /= 125, nt put up, nes
5206.35	Cotton yarn, < 85%, multiple, uncombed, < 125 dtex, not put up, nes
5206.41	Cotton yarn, < 85%, multiple, combed, > / = 714.29, nt put up, nes
5206.42	Cotton yarn, < 85%,multiple, combed, 714.29 > dtex > /=232.56, nt put up, nes
5206.43	Cotton yarn, < 85%,multiple, combed, 232.56 > dtex > /= 192.31, nt put up, nes
5206.44	Cotton yarn, < 85%,multiple, combed, 192.31 > dtex > / = 125, nt put up, nes
5206.45	Cotton yarn, < 85%, multiple, combed, < 125 dtex, not put up, nes
5207.10	Cotton yarn (other than sewing thread) > / = 85% by weight of cotton, put up
5207.90	Cotton yarn (other than sewg thread) < 85% by wt of cotton, put up f retl sale
5208.11	Plain weave cotton fabric, > / = 85%, not more than 100 g/m2. unbleached
5208.12	Plain weave cotton fabric, > / = 85%, > 100 g/m2 to 200 g/m2, unbleached
5208.13	Twill weave cotton fabric, > / = 85%, not more than 200 g/m2, unbleached
5208.19	Woven fabrics of cotton, > / = 85%, not more than 200 g/m2, unbleached, nes
5208.21	Plain weave cotton fabrics, > / = 85%, not more than 100 g/m2, bleached
5208.22	Plain weave cotton fabric, > / = 85%, > 100 g/m2 to 200 g/m2, bleached
5208.23	Twill weave cotton fabric, > / = 85%, not more than 200 g/m2, bleached
5208.29	Woven fabrics of cotton, > / = 85%, not more than 200 g/m2, bleached, nes
5208.31	Plain weave cotton fabric, > / = 85%, not more than 100 g/m2, dyed
5208.32	Plain weave cotton fabric, > / = 85%, > 100g/m = to 200g/m2, dyed
5208.33	Twill weave cotton fabrics, > / = 85%, not more than 200 g/m2, dyed
5208.39	Woven fabrics of cotton, > / = 85%, not more than 200 g/m2, dyed, nes
5208.41	Plain weave cotton fabric, > / = 85%, not more than 100 g/m2, yarn dyed
5208.42	Plain weave cotton fabrics, > / = 85%, > 100 g/m2 to 200 g/m2, yarn dyed
5208.43	Twill weave cotton fabric, > / = 85%, not more than 200 g/m2, yarn dyed
5208.49	Woven fabrics of cotton, > / = 85%, not more than 200 g/m2, yarn dyed, nes
5208.51	Plain weave cotton fabrics, > / = 85%, not more than 100 g/m2, printed
5208.52	Plain weave cotton fabric, > / = 85%, > 100 g/m2 to 200 g/m2, printed
5208.53	Twill weave cotton fabric, > / = 85%, not more than 200 g/m2, printed
5208.59	Woven fabrics of cotton, > / = 85%, not more than 200 g/m2, printed, nes
5209.11	Plain weave cotton fabric, > / = 85%, more than 200 g/m2, unbleached
5209.12	Twill weave cotton fabric, > / = 85%, more than 200 g/m2, unbleached
5209.19	Woven fabrics of cotton, > / = 85%, more than 200 g/m2 , unbleached, nes
5209.21	Plain weave cotton fabric, > / = 85%, more than 200 g/m2, bleached
5209.22	Twill weave cotton fabrics, > / = 85%, more than 200 g/m2, bleached
5209.29	Woven fabrics of cotton, > / = 85%, more than 200 g/m2, bleached, nes
5209.31	Plain weave cotton fabrics, > / = 85%, more than 200 g/m2, dyed
5209.32	Twill weave cotton fabrics, > / = 85%, more than 200 g/m2, dyed
5209.39	Woven fabrics of cotton, > / = 85%, more than 200 g/m2, dyed, nes
5209.41	Plain weave cotton fabrics, > / = 85%, more than 200 g/m2, yarn dyed
5209.42	Denim fabrics of cotton, > / = 85%, more than 200 g/m2
5209.43	Twill weave cotton fab, other than denim, > / = 85%, more than 200 g/m2, yarn dyed
5209.49	Woven fabrics of cotton, > / = 85%, more than 200 g/m2, yarn dyed, nes
5209.51	Plain weave cotton fabrics, > / = 85%, more than 200 g/m2, printed
5209.52	Twill weave cotton fabrics, > / = 85%, more than 200 g/m2, printed
5209.59	Woven fabrics of cotton, > / = 85%, more than 200 g/m2, printed, nes
5210.11	Plain weave cotton fab, < 85% mixd w m-m fib, not more than 200 g/m2, unbl
5210.12	Twill weave cotton fab, < 85% mixd w m-m fib, not more than 200 g/m2, unbl
5210.19	Woven fab of cotton, < 85% mixd with m-m fib, < / = 200 g/m2, unbl, nes
5210.21	Plain weave cotton fab, < 85% mixd w m-m fib, not more than 200 g/m2, bl
5210.22	Twill weave cotton fab, < 85% mixd w m-m fib, not more than 200 g/m2, bl
5210.29	Woven fabrics of cotton, < 85% mixd with m-m fib, < / = 200 g/m2, bl, nes
5210.31	Plain weave cotton fab, < 85% mixd w m-m fib, not more than 200 g/m2, dyd
5210.32	Twill weave cotton fab, < 85% mixd w m-m fib, not more than 200 g/m2, dyd
5210.39	Woven fabrics of cotton, < 85% mixd with m-m fib, < / = 200 g/m2, dyed, nes
5210.41	Plain weave cotton fab, < 85% mixd w m-m fib, nt mor thn 200g/m2, yarn dyd
5210.42	Twill weave cotton fab, < 85% mixd w m-m fib, nt mor thn 200g/m2, yarn dyd
5210.49	Woven fabrics of cotton, < 85% mixed w m-m fib, < / = 200g/m2, yarn dyed, nes
5210.51	Plain weave cotton fab, < 85% mixd w m-m fib, nt more thn 200 g/m2, printd
5210.52	Twill weave cotton fab, < 85% mixd w m-m fib, nt more thn 200g/m2, printd
5210.59	Woven fabrics of cotton, < 85% mixed with m-m fib, < / = 200g/m2, printed, nes
5211.11	Plain weave cotton fab, < 85% mixd w m-m fib, more thn 200 g/m2, unbleachd
5211.12	Twill weave cotton fab, < 85% mixed with m-m fib, more than 200 g/m2, unbl
5211.19	Woven fabrics of cotton, < 85% mixd w m-m fib, more thn 200g/m2, unbl, nes
5211.21	Plain weave colton fab, < 85% mixd w m-m fib, more than 200 g/m2, bleachd
5211.22	Twill weave cotton fab, < 85% mixd w m-m fib, more than 200 g/m2, bleachd
5211.29	Woven fabrics of cotton, < 85% mixd w m-m fib, more than 200 g/m2, bl, nes
5211.31	Plain weave cotton fab, < 85% mixed with m-m fib, more than 200 g/m2, dyed
5211.32	Twill weave cotton fab, < 85% mixed with m-m fib, more than 200 g/m2, dyed
5211.39	Woven fabrics of cotton, < 85% mixd w m-m fib, more than 200 g/m2, dyd, nes
5211.41	Plain weave cotton fab, < 85% mixd w m-m fib, more than 200 g/m2, yarn dyd
5211.42	Denim fabrics of cotton, < 85% mixed with m-m fib, more than 200 g/m2
5211.43	Twill weave cotton fab, other than denim, < 85% mixd w m-m fib, > 200g/m2, yarn dyd
5211.49	Woven fabrics of cotton, < 85% mixd with m-m fib, > 200 g/m2, yarn dyed, nes
5211.51	Plain weave cotton fab, < 85% mixd w m-m fib, more than 200 g/m2, printd
5211.52	Twill weave cotton fab, < 85% mixd w m-m fib, more than 200 g/m2, printd
5211.59	Woven fabrics of cotton, < 85% mixd w m-m fib, mor thn 200g/m2, printd, nes
5212.11	Woven fabrics of cotton, weighing not more than 200 g/m2, unbleached, nes
5212.12	Woven fabrics of cotton, weighing not more than 200 g/m2, bleached, nes
5212.13	Woven fabrics of cotton, weighing not more than 200 g/m2, dyed, nes
5212.14	Woven fabrics of cotton, < / = 200g/m2 , of yarns of different colours, nes
5212.15	Woven fabrics of cotton, weighing not more than 200 g/m2, printed, nes
5212.21	Woven fabrics of cotton, weighing more than 200 g/m2 , unbleached, nes
5212.22	Woven fabrics of cotton, weighing more than 200 g/m2, bleached, nes
5212.23	Woven fabrics of cotton, weighing more than 200 g/m2 , dyed, nes
5212.24	Woven fabrics of cotton, > 200 g/m2 , of yarns of different colours, nes
5212.25	Woven fabrics of cotton, weighing more than 200 g/m2 , printed, nes
Ch. 53	Other vegetable textile fibres; paper yarn & woven fab
5306.10	Flax yarn, single
5306.20	Flax yarn, multile (folded) or cabled
5307.10	Yarn of jute or of other textile bast fibres, single
5307.20	Yarn of jute or of oth textile bast fibres, multiple (folded) or cabled
5308.20	True hemp yarn
5308.90	Yarn of other vegetable textile fibres
5309.11	Woven fabrics, containg 85% or more by weight of flax, unbleached or bl
5309.19	Woven fabrics, containing 85% or more by weight of flax, other than unbl or bl
5309.21	Woven fabrics of flax, containg < 85% by weight of flax, unbleached or bl
5309.29	Woven fabrics of flax, containing < 85% by weight of flax, other than unbl or bl
5310.10	Woven fabrics of jute or of other textile bast fibres, unbleached
5310.90	Woven fabrics of jute or of other textile bast fibres, other than unbleached
5311.00	Woven fabrics of oth vegetable textile fibres; woven fab of paper yarn
Ch. 54	Man-made filaments
5401.10	Sewing thread of synthetic filaments
5401.20	Sewing thread of artificial filaments
5402.10	High tenacity yarn (other than sewg thread), nylon/oth polyamides fi, nt put up
5402.20	High tenacity yarn (other than sewg thread), of polyester filaments, not put up
5402.31	Texturd yarn nes, of nylon/oth polyamides fi, < ∕ = 50 tex/ s.y.,not put up
5402.32	Texturd yarn nes, of nylon/oth polyamides fi, > 50 tex ∕s.y.,not put up
5402.33	Textured yarn nes, of polyester filaments, not put up for retail sale
5402.39	Textured yarn of synthetic filaments, nes, not put up
5402.41	Yarn of nylon or other ρolyamides fi, single, untwisted, nes, not put up
5402.42	Yarn of polyester filaments, partially oriented, single, nes, not put up
5402.43	Yarn of polyester filaments, single, untwisted, nes, not put up
5402.49	Yarn of synthetic filaments, single, untwisted, nes, not put up
5402.51	Yarn of nylon or other polyamides fi, single, > 50 turns ∕ m, not put up
5402.52	Yarn of polyester filaments, single, > 50 turns per metre, not put up
5402.59	Yarn of synthetic filaments, single, > 50 turns per metre, nes, not put up
5402.61	Yarn of nylon or other polyamides fi, multiple, nes, not put up
5402.62	Yarn of polyester filaments, multiple, nes, not put up
5402.69	Yarn of synthetic filaments, multiple, nes, not put up
5403.10	High tenacity yarn (other than sewg thread), of viscose rayon filamt, nt put up
5403.20	Textured yarn nes, of artificial filaments, not put up for retail sale
5403.31	Yarn of viscose rayon filaments, single, untwisted, nes, not put up
5403.32	Yarn of viscose rayon filaments, single, > 120 turns per m, nes, nt put up
5403.33	Yarn of cellulose acetate filaments, single, nes, not put up
5403.39	Yarn of artificial filaments, single, nes, not put up
5403.41	Yarn of viscose rayon filaments, multiple, nes, not put up
5403.42	Yarn of cellulose acetate filaments, multiple, nes, not put up
5403.49	Yarn of artificial filaments, multiple, nes, not put up
5404.10	Synthetic mono, > / = 67 dtex, no cross sectional dimension exceeds 1 mm
5404.90	Strip&the like of syn tex material of an apparent width nt exceedg 5mm
5405.00	Artificial mono, 67 dtex, cross-sect > 1 mm; strip of arti tex mat w < / = 5 mm
5406.10	Yarn of synthetic filament (other than sewing thread), put up for retail sale
5406.20	Yarn of artificial filament (other than sewing thread), put up for retail sale
5407.10	Woven fab of high tenacity fi yarns of nylon oth polyamides/polyesters
5407.20	Woven fab obtaind from strip/the like of synthetic textile materials
5407.30	Fabrics specif in Note 9 Section XI (layers of parallel syn tex yarn)
5407.41	Woven fab, > / = 85% of nylon/other polyamides filaments, unbl or bl, nes
5407.42	Woven fabrics, > / = 85% of nylon/other polyamides filaments, dyed, nes
5407.43	Woven fab, > / = 85% of nylon/other polyamides filaments, yarn dyed, nes
5407.44	Woven fabrics, > / = 85% of nylon/other polyamides filaments, printed, nes
5407.51	Woven fabrics, > / = 85% of textured polyester filaments, unbl or bl, nes
5407.52	Woven fabrics, > / = 85% of textured polyester filaments, dyed, nes
5407.53	Woven fabrics, > / = 85% of textured polyester filaments, yarn dyed, nes
5407.54	Woven fabrics, > / = 85% of textured polyester filaments, printed, nes
5407.60	Woven fabrics, > / = 85% of non-textured polyester filaments, nes
5407.71	Woven fab, > / = 85% of synthetic filaments, unbleached or bleached, nes
5407.72	Woven fabrics, > / = 85% of synthetic filaments, dyed, nes
5407.73	Woven fabrics, > / = 85% of synthetic filaments, yarn dyed, nes
5407.74	Woven fabrics, > / = 85% of synthetic filaments, printed, nes
5407.81	Woven fabrics of synthetic filaments, < 85% mixd w cotton, unbl o bl, nes
5407.82	Woven fabrics of synthetic filaments, < 85% mixed with cotton, dyed, nes
5407.83	Woven fabrics of synthetic filaments, < 85% mixd w cotton, yarn dyd, nes
5407.84	Woven fabrics of synthetic filaments, < 85% mixd with cotton, printed, nes
5407.91	Woven fabrics of synthetic filaments, unbleached or bleached, nes
5407.92	Woven fabrics of synthetic filaments, dyed, nes
5407.93	Woven fabrics of synthetic filaments, yarn dyed, nes
5407.94	Woven fabrics of synthetic filaments, printed, nes
5408.10	Woven fabrics of high tenacity filament yarns of viscose rayon
5408.21	Woven fab, > / = 85% of artificial fi o strip of art tex mat, unbl/bl, nes
5408.22	Woven fab, > / = 85% of artificial fi or strip of art tex mat, dyed, nes
5408.23	Woven fab, > / = 85% of artificial fi or strip of art tex mat, y dyed, nes
5408.24	Woven fab, > / = 85% of artificial fi or strip of art tex mat, printd, nes
5408.31	Woven fabrics of artificial filaments, unbleached or bleached, nes
5408.32	Woven fabrics of artificial filaments, dyed, nes
5408.33	Woven fabrics of artificial filaments, yarn dyed, nes
5408.34	Woven fabrics of artificial filaments, printed, nes
Ch. 55	Man-made staple fibres
5501.10	Filament tow of nylon or other polyamides
5501.20	Filament tow of polyesters
5501.30	Filament tow of acrylic or modacrylic
5501.90	Synthetic filament tow, nes
5502.00	Artificial filament tow
5503.10	Staple fibres of nylon or other polyamides, not carded or combed
5503.20	Staple fibres of polyesters, not carded or combed
5503.30	Staple fibres of acrylic or modacrylic, not carded or combed
5503.40	Staple fibres of polypropylene, not carded or combed
5503.90	Synthetic staple fibres, not carded or combed, nes
5504.10	Staple fibres of viscose, not carded or combed
5504.90	Artificial staple fibres, other than viscose, not carded or combed
5505.10	Waste of synthetic fibres
5505.20	Waste of artificial fibres
5506.10	Staple fibres of nylon or other polyamides, carded or combed
5506.20	Staple fibres of polyesters, carded or combed
5506.30	Staple fibres of acrylic or modacrylic, carded or combed
5506.90	Synthetic staple fibres, carded or combed, nes
5507.00	Artificial staple fibres, carded or combed
5508.10	Sewing thread of synthetic staple fibres
5508.20	Sewing thread of artificial staple fibres
5509.11	Yarn, > / = 85% nylon or other polyamides staple fibres, single, not put up
5509.12	Yarn, > / = 85% nylon or other polyamides staple fibres, mufti, not put up, nes
5509.21	Yarn, > / = 85% of polyester staple fibres, single, not put up
5509.22	Yarn, > / = 85% of polyester staple fibres, multiple, not put up, nes
5509.31	Yarn, > / = 85% of acrylic or modacrylic staple fibres, single, not put up
5509.32	Yarn, > / = 85% acrylic/modacrylic staple fibres, multiple, not put up, nes
5509.41	Yarn, > / = 85% of other synthetic staple fibres, single, not put up
5509.42	Yarn, > / = 85% of other synthetic staple fibres, multiple, not put up, nes
5509.51	Yarn of polyester staple fibres mixd w/ arti staple fib, not put up, nes
5509.52	Yarn of polyester staple fib mixd w wool/fine animal hair, nt put up, nes
5509.53	Yarn of polyester staple fibres mixed with cotton, not put up, nes
5509.59	Yarn of polyester staple fibres, not put up, nes
5509.61	Yarn of acrylic staple fib mixd w wool/fine animal hair, not put up, nes
5509.62	Yarn of acrylic staple fibres mixed with cotton, not put up, nes
5509.69	Yarn of acrylic staple fibres, not put up, nes
5509.91	Yarn of oth synthetic staple fibres mixed w/wool/fine animal hair, nes
5509.92	Yarn of other synthetic staple fibres mixed with cotton, not put up, nes
5509.99	Yarn of other synthetic staple fibres, not put up, nes
5510.11	Yarn, > / = 85% of artificial staple fibres, single, not put up
5510.12	Yarn, > / = 85% of artificial staple fibres, multiple, not put up, nes
5510.20	Yarn of artificl staple fib mixd vv wool/fine animal hair, not put up, nes
5510.30	Yarn of artificial staple fibres mixed with cotton, not put up, nes
5510.90	Yarn of artificial staple fibres, not put up, nes
5511.10	Yarn, > / = 85% of synthetic staple fibres, other than sewing thread, put up
5511.20	Yarn, < 85% of synthetic staple fibres, put up for retail sale, nes
5511.30	Yarn of artificial fibres (other than sewing thread), put up for retail sale
5512.11	Woven fabrics, containing > / = 85% of polyester staple fibres, unbl or bl
5512.19	Woven fabrics, containg > / = 85% of polyester staple fibres, other than unbl or bl
5512.21	Woven fabrics, containg > / = 85% of acrylic staple fibres, unbleached or bl
5512.29	Woven fabrics, containing > / = 85% of acrylic staple fibres, other than unbl or bl
5512.91	Woven fabrics, containing > ∕ = 85% of oth synthetic staple fibres, unbl/bl
5512.99	Woven fabrics, containg > ∕ = 85% of other synthetic staple fib, other than unbl/bl
5513.11	Plain weave polyest stapl fib fab, < 85%,mixd w/cottn, < ∕ = 170g/m2, unbl/bl
5513.12	Twill weave polyest stapl fib fab, < 85%, mixd w/cottn, < ∕ = 170g/m2, unbl/bl
5513.13	Woven fab of polyest staple fib, < 85% mixd w/cot, < ∕ = 170g/m2, unbl/bl, nes
5513.19	Woven fabrics of oth syn staple fib, < 85%, mixd w/cot, < /= 170g/m2, unbl/bl
5513.21	Plain weave polyester staple fib fab, < 85%, mixd w/cotton, < /= 170g/m2, dyd
5513.22	Twill weave polyest staple fib fab, < 85%, mixd w/cotton, < /= 170g/m2, dyd
5513.23	Woven fab of polyester staple fib, < 85%, mixd w/cot, < /= 170 g/m2, dyd, nes
5513.29	Woven fabrics of oth syn staple fib, < 85% mixd w/cotton, < ∕ = 170g/m2, dyed
5513.31	Plain weave polyest stapl fib fab, < 85% m¡xd w/cot, < ∕ = 170g/m2, yarn dyd
5513.32	Twill weave polyest stapl fib fab, < 85% mixd w/cot, < ∕ = 170g/m2, yarn dyd
5513.33	Woven fab of polyest staple fib, < 85% mixd w/cot, < ∕ = 170 g/m2, dyd nes
5513.39	Woven fab of oth syn staple fib, < 85% mixd w/cot, < ∕ = 170g/m2, yarn dyd
5513.41	Plain weave polyester stapl fib fab, < 85%, mixd w/cot, < /= 170g/m2, printd
5513.42	Twill weave polyest staple fib fab, < 85%, mixd w/cot, < /= 170g/m2, printd
5513.43	Woven fab of polyester staple fib, < 85%, mixd w/cot, < /= 170g/m2, ptd, nes
5513.49	Woven fab of oth syn staple fib, < 85%, mixed w/cot, < /= 170g/m2, printed
5514.11	Plain weave polyest staple fib fab, < 85%, mixd w/cotton, > 170g/m2, unbl/bl
5514.12	Twill weave polyest stapl fib fab, < 85%, mixd w/cotton, > 170g/m2, unbl/bl
5514.13	Woven fab of polyester staple fib, < 85% mixd w/cot, > 170g/m2, unbl/bl, nes
5514.19	Woven fabrics of oth syn staple fib, < 85%, mixed w/cot, > 170 g/m2, unbl/bl
5514.21	Plain weave polyester staple fibre fab, < 85%, mixd w/cotton, > 170g/m2, dyd
5514.22	Twill weave polyester staple fibre fab, < 85%, mixd w/cotton, > 170g/m2, dyd
5514.23	Woven fabrics of polyester staple fib, < 85%, mixed w/cot, > 170 g/m2, dyed
5514.29	Woven fabrics of oth synthetic staple fib, < 85%, mixd w/cot,>170g/m2, dyd
5514.31	Plain weave polyester staple fib fab, < 85% mixd w/cot, > 170g/m2, yarn dyd
5514.32	Twill weave polyester staple fib fab, < 85% mixd w/cot, > 170g/m2, yarn dyd
5514.33	Woven fab of polyester stapl fib, < 85% mixd w/cot, > 170g/m2, yarn dyd nes
5514.39	Woven fabrics of oth syn staple fib, < 85% mixd w/cot, > 170 g/m2, yarn dyd
5514.41	Plain weave polyester staple fibre fab, < 85%, mixd w/cot, > 170g/m2, printd
5514.42	Twill weave polyester staple fibre fab, < 85%, mixd w/cot, > 170g/m2 , printd
5514.43	Woven fab of polyester staple fibres < 85%, mixd w/cot, > 170g/m2, ptd, nes
5514.49	Woven fabrics of oth syn staple fib, < 85%, mixed w/cot, > 170 g/m2, printed
5515.11	Woven fab of polyester staple fib mixd w viscose rayon staple fib, nes
5515.12	Woven fabrics of polyester staple fibres mixd w manmade filaments, nes
5515.13	Woven fab of polyester staple fibres mixd w/wool/fine animal hair, nes
5515.19	Woven fabrics of polyester staple fibres, nes
5515.21	Woven fabrics of acrylic staple fibres, mixd w man-made filaments, nes
5515.22	Woven fab of acrylic staple fibres, mixd w/wool/fine animal hair, nes
5515.29	Woven fabrics of acrylic or modacrylic staple fibres, nes
5515.91	Woven fabrics of oth syn staple fib, mixed with manmade filaments, nes
5515.92	Woven fabrics of oth syn staple fib, mixd w/wool o fine animal hair, nes
5515.99	Woven fabrics of synthetic staple fibres, nes
5516.11	Woven fabrics, containg > / = 85% of artificial staple fibres, unbleached/bl
5516.12	Woven fabrics, containing > ∕ = 85% of artificial staple fibres, dyed
5516.13	Woven fabrics, containing > ∕ = 85% of artificial staple fib, yarn dyed
5516.14	Woven fabrics, containing > ∕ = 85% of artificial staple fibres, printed
5516.21	Woven fabrics of artificial staple fib, < 85%,mixd w man-made fi, unbl/bl
5516.22	Woven fabrics of artificial staple fib, < 85%,mixd with man-made fi, dyd
5516.23	Woven fabrics of artificial staple fib, < 85%,mixd with m-m fi, yarn dyd
5516.24	Woven fabrics of artificial staple fib, < 85%,mixd w man-made fi, printd
5516.31	Woven fab of arti staple fib, < 85% mixd w/wool/fine animal hair, unbl/bl
5516.32	Woven fabrics of arti staple fib, < 85% mixd w/wool/fine animal hair, dyd
5516.33	Woven fab of arti staple fib, < 85% mixd w/wool/fine animal hair, yarn dyd
5516.34	Woven fab of arti staple fib, < 85% mixd w/wool/fine animal hair, printd
5516.41	Woven fabrics of artificial staple fib, < 85% mixd with cotton, unbl o bl
5516.42	Woven fabrics of artificial staple fib, < 85% mixed with cotton, dyed
5516.43	Woven fabrics of artificial staple fib, < 85% mixd with cotton, yarn dyd
5516.44	Woven fabrics of artificial staple fib, < 85% mixed with cotton, printed
5516.91	Woven fabrics of artificial staple fibres, unbleached or bleached, nes
5516.92	Woven fabrics of artificial staple fibres, dyed, nes
5516.93	Woven fabrics of artificial staple fibres, yarn dyed, nes
5516.94	Woven fabrics of artificial staple fibres, printed, nes
Ch. 56	Wadding, felt & nonwoven; yarns; twine, cordage, etc.
5601.10	Sanitary articles of waddg of textile mat i.e. sanitary towels, tampons
5601.21	Wadding of cotton and articles thereof, other than sanitary articles
5601.22	Wadding of man-made fibres and articles thereof, other than sanitary articles
5601.29	Waddg of oth textile materials&articles thereof, other than sanitary articles
5601.30	Textile flock and dust and mill neps
5602.10	Needleloom felt and stitch-bonded fibre fabrics
5602.21	Felt other than needleloom, of wool or fine animal hair, not imρreg, ctd, cov etc
5602.29	Felt other than needleloom, of other textile materials, not impreg, ctd, cov etc
5602.90	Felt of textile materials, nes
5603.00	Nonwovens, whether or not impregnated, coated, covered or laminated
5604.10	Rubber thread and cord, textile covered
5604.20	High tenacity yarn of polyest, nylon oth polyamid, viscose rayon, ctd etc
5604.90	Textile yarn, strips&the like, impreg ctd/cov with rubber o plastics, nes
5605.00	Metallisd yarn, beg textile yarn combind w metal thread, strip/powder
5606.00	Gimped yarn nes; chenille yarn; loop wale-yarn
5607.10	Twine, cordage, ropes and cables, of jute or other textile bast fibres
5607.21	Binder o baler twine, of sisal o oth textile fibres of the genus Agave
5607.29	Twine nes, cordage, ropes and cables, of sisal textile fibres
5607.30	Twine, cordage, ropes and cables, of abaca or other hard (leaf) fibres
5607.41	Binder or baler twine, of polyethylene or polypropylene
5607.49	Twine nes, cordage, ropes and cables, of polyethylene or polypropylene
5607.50	Twine, cordage, ropes and cables, of other synthetic fibres
5607.90	Twine, cordage, ropes and cables, of other materials
5608.11	Made up fishing nets, of man-made textile materials
5608.19	Knottd nettg of twine/cordage/rope, and oth made up nets of m-m tex mat
5608.90	Knottd nettg of twine/cordage/rope, nes, and made up nets of oth tex mat
5609.00	Articles of yarn, strip, twine, cordage, rope and cables, nes
Ch. 57	Carpets and other textile floor coverings
5701.10	Carpets of wool or fine animal hair, knotted
5701.90	Carpets of other textile materials, knotted
5702.10	Kelem, Schumacks, Karamanic and similar textile handwoven rugs
5702.20	Floor coverings of coconut fibres (coir)
5702.31	Carpets of wool/fine animal hair, of woven pile constructn, nt made up nes
5702.32	Carpets of man-made textile mat, of woven pile construct, nt made up, nes
5702.39	Carpets of oth textile mat, of woven pile constructn, nt made up, nes
5702.41	Carpets of wool/fine animal hair, of woven pile construction, made up, nes
5702.42	Carpets of man-made textile mat, of woven pile construction, made up, nes
5702.49	Carpets of oth textile materials, of woven pile construction, made up, nes
5702.51	Carpets of wool or fine animal hair, woven, not made up, nes
5702.52	Carpets of man-made textile materials, woven, not made up, nes
5702.59	Carpels of other textile materials, woven, not made up, nes
5702.91	Carpets of wool or fine animal hair, woven, made up, nes
5702.92	Carpets of man-made textile materials, woven, made up, nes
5702.99	Carpets of other textile materials, woven, made up, nes
5703.10	Carpets of wool or fine animal hair, tufted
5703.20	Carpets of nylon or other polyamides, tufted
5703.30	Carpets of other man-made textile materials, tufted
5703.90	Carpets of other textile materials, tufted
5704.10	Tiles of felt of textile materials, havg a max surface area of 0.3 m2
5704.90	Carpets of felt of textile materials, nes
5705.00	Carpets and other textile floor coverings, nes
Ch. 58	Special woven fab; tufted tex fab; lace; tapestries etc.
5801.10	Woven pile fabrics of wool/fine animal hair, other than terry&narrow fabrics
5801.21	Woven uncut weft pile fabrics of cotton, other than terry and narrow fabrics
5801.22	Cut corduroy fabrics of cotton, other than narrow fabrics
5801.23	Woven weft pile fabrics of cotton, nes
5801.24	Woven warp pile fab of cotton, pingl (uncut), other than terry&narrow fab
5801.25	Woven warp pile fabrics of cotton, cut, other than terry and narrow fabrics
5801.26	Chenille fabrics of cotton, other than narrow fabrics
5801.31	Woven uncut weft pile fabrics of manmade fibres, other than terry&narrow fab.
5801.32	Cut corduroy fabrics of man-made fibres, other than narrow fabrics
5801.33	Woven weft pile fabrics of man-made fibres, nes
5801.34	Woven warp pile fab of man-made fib, pingl (uncut), other than terry&nar fab
5801.35	Woven warp pile fabrics of man-made fib, cut, other than terry & narrow fabrics
5801.36	Chenille fabrics of man-made fibres, other than narrow fabrics
5801.90	Woven pile fab&chenille fab of other tex mat, other than terry&narrow fabrics
5802.11	Terry towellg & similar woven terry fab of cotton, other than narrow fab, unbl
5802.19	Terry towellg&similar woven terry fab of cotton, other than unbl&other than nar fab
5802.20	Terry towellg&sim woven terry fab of oth tex mat, otherthan narrow fabrics
5802.30	Tufted textile fabrics, other than products of heading No 57.03
5803.10	Gauze of cotton, other than narrow fabrics
5803.90	Gauze of other textile material, other than narrow fabrics
5804.10	Tulles & other net fabrics, not incl woven, knitted or crocheted fabrics
5804.21	Mechanically made lace of man-made fib, in the piece, in strips/motifs
5804.29	Mechanically made lace of oth tex mat, in the piece, instrips/in motifs
5804.30	Hand-made lace, in the piece, in strips or in motifs
5805.00	Hand-woven tapestries&needle-worked tapestries, whether or not made up
5806.10	Narrow woven pile fabrics and narrow chenille fabrics
5806.20	Narrow woven fab, cntg by wt > ∕ = 5% clastomerίc yarn/ rubber thread nes
5806.31	Narrow woven fabrics of cotton, nes
5806.32	Narrow woven fabrics of man-made fibres, nes
5806.39	Narrow woven fabrics of other textile materials, nes
5806.40	Fabrics consisting of warp w/o weft assembled by means of an adhesive
5807.10	Labels, badges and similar woven articles of textile materials
5807.90	Labels, badges and similar articles, not woven, of textile materials, nes
5808.10	Braids in the piece
5808.90	Ornamental trimmings in the piece, other than knit; tassels, pompons&sim¡lar art
5809.00	Woven fabrics of metal thread/of metallisd yarn, for apparel, etc, nes
5810.10	Embroidery without visible ground, in the piece, in strips or in motifs
5810.91	Embroidery of cotton, in the piece, in strips or in motifs, nes
5810.92	Embroidery of man-made fibres, in the piece, in strips or in motifs, nes
5810.99	Embroidery of oth textile materials, in the piece, in strips/ motifs, nes
5811.00	Quilted textile products in the piece
Ch. 59	Impregnated, coated, cover/laminated textile fabric etc.
5901.10	Textile fabrics coatd with gum, of a kind usd for outer covers of books
5901.90	Tracg cloth; prepared paintg canvas; stiffened textile fab; for hats etc
5902.10	Tire cord fabric made of nylon or other polyamides high tenacity yarns
5902.20	Tire cord fabric made of polyester high tenacity yarns
5902.90	Tire cord fabric made of viscose rayon high tenacity yarns
5903.10	Textile fab impregnatd, ctd, cov, or laminatd w polyvinyl chloride, nes
5903.20	Textile fabrics impregnated, ctd, cov, or laminated with polyurethane, nes
5903.90	Textile fabrics impregnated, ctd, cov, or laminated with plastics, nes
5904.10	Lineoleum, whether or not cut to shape
5904.91	Floor coverings, other than linoleum, with a base of needleloom felt/nonwovens
5904.92	Floor coverings, other than linoleum, with other textile base
5905.00	Textile wall coverings
5906.10	Rubberised textile adhesive tape of a width not exceeding 20 cm
5906.91	Rubberised textile knitted or crocheted fabrics, nes
5906.99	Rubberised textile fabrics, nes
5907.00	Textile fab impreg, ctd, cov nes; paintd canvas (e.g. threatrical scenery)
5908.00	Textile wicks f lamps, stoves, etc; gas mantles&knittd gas mantle fabric
5909.00	Textile hosepiping and similar textile tubing
5910.00	Transmission or conveyor belts or belting of textile material
5911.10	Textile fabrics usd f card clothing, and sim fabric f technical uses
5911.20	Textile bolting cloth, whether or not made up
5911.31	Textile fabrics used in paper-making or similar machines, < 650 g/m2
5911.32	Textile fabrics usd in paper-makg or similar mach, weighg > / = 650 g/m2
5911.40	Textile straing cloth usd in oil presses o the like, incl of human hair
5911.90	Textile products and articles for technical uses, nes
Ch. 60	Knitted or crocheted fabrics
6001.10	Long pile knitted or crocheted textile fabrics
6001.21	Looped pile knitted or crocheted fabrics, of cotton
6001.22	Looped pile knitted or crocheted fabrics, of man-made fibres
6001.29	Looped pile knitted or crocheted fabrics, of other textile materials
6001.91	Pile knitted or crocheted fabrics, of cotton, nes
6001.92	Pile knitted or crocheted fabrics, of man-made fibres, nes
6001.99	Pile knitted or crocheted fabrics, of other textile materials, nes
6002.10	Knittd or crochetd tex fab, w < / = 30 cm, > / = 5% of elastomeric/rubber, nes
6002.20	Knitted or crocheted textile fabrics, of a width not exceedg 30 cm, nes
6002.30	Knittd/crochetd tex fab, width > 30 cm, > / = 5% of elastomeric/rubber, nes
6002.41	Warp knitted fabrics, of wool or fine animal hair, nes
6002.42	Warp knitted fabrics, of cotton, nes
6002.43	Warp knitted fabrics, of man-made fibres, nes
6002.49	Warp knitted fabrics, of other materials, nes
6002.91	Knitted or crocheted fabrics, of wool or of fine animal hair, nes
6002.92	Knitted or crocheted fabrics, of cotton, nes
6002.93	Knitted or crocheted fabrics, of manmade fibres, nes
6002.99	Knitted or crocheted fabrics, of other materials, nes

HS No.	Product Description
Ch. 61	Art of apparel & clothing access, knitted or crocheted
6101.10	Mens/boys overcoats, anoraks etc, of wool or fine animal hair, knitted
6101.20	Mens/boys overcoats, anoraks etc, of cotton, knitted
6101.30	Mens/boys overcoats, anoraks etc, of man-made fibres, knitted
6101.90	Mens/boys overcoats, anoraks etc, of other textile materials, knitted
6102.10	Womens/girls overcoats, anoraks etc, of wool or fine animal hair, knitted
6102.20	Womens/girls overcoats, anoraks etc, of cotton, knitted
6102.30	Womens/girls overcoats, anoraks etc, of man-made fibres, knitted
6102.90	Womens/girls overcoats, anoraks etc, of other textile materials, knitted
6103.11	Mens/boys suits, of wool or fine animal hair, knitted
6103.12	Mens/boys suits, of synthetic fibres, knitted
6103.19	Mens/boys suits, of other textile materials, knitted
6103.21	Mens/boys ensembles, of wool or fine animal hair, knitted
6103.22	Mens/boys ensembles, of cotton, knitted
6103.23	Mens/boys ensembles, of synthetic fibres, knitted
6103.29	Mens/boys ensembles, of other textile materials, knitted
6103.31	Mens/boys jackets and blazers, of wool or fine animal hair, knitted
6103.32	Mens/boys jackets and blazers, of cotton, knitted
6103.33	Mens/boys jackets and blazers, of synthetic fibres, knitted
6103.39	Mens/boys jackets and blazers, of other textile materials, knitted
6103.41	Mens/boys trousers and shorts, of wool or fine animal hair, knitted
6103.42	Mens/boys trousers and shorts, of cotton, knitted
6103.43	Mens/boys trousers and shorts, of synthetic fibres, knitted
6103.49	Mens/boys trousers and shorts, of other textile materials, knitted
6104.11	Womens/girls suits, of wool or fine animal hair, knitted
6104.12	Womens/girls suits, of cotton, knitted
6104.13	Womens/girls suits, of synthetic fibres, knitted
6104.19	Womens/girls suits, of other textile materials, knitted
6104.21	Womens/girls ensembles, of wool or fine animal hair, knitted
6104.22	Womens/girls ensembles, of cotton, knitted
6104.23	Womens/girls ensembles, of synthetic fibres, knitted
6104.29	Womens/girls ensembles, of other textile materials, knitted
6104.31	Womens/girls jackets, of wool or fine animal hair, knitted
6104.32	Womens/girls jackets, of cotton, knitted
6104.33	Womens/girls jackets, of synthetic fibres, knitted
6104.39	Womens/girls jackets, of other textile materials, knitted
6104.41	Womens/girls dresses, of wool or fine animal hair, knitted
6104.42	Womens/girls dresses, of cotton, knitted
6104.43	Womens/girls dresses, of synthetic fibres, knitted
6104.44	Womens/girls dresses, of artificial fibres, knitted
6104.49	Womens/girls dresses, of other textile materials, knitted
6104.51	Womens/girls skirts, of wool or fine animal hair, knitted
6104.52	Womens/girls skirts, of cotton, knitted
6104.53	Womens/girls skirts, of synthetic fibres, knitted
6104.59	Womens/girls skirts, of other textile materials, knitted
6104.61	Womens/girls trousers and shorts, of wool or fine animal hair, knitted
6104.62	Womens/girls trousers and shorts, of cotton, knitted
6104.63	Womens/girls trousers and shorts, of synthetic fibres, knitted
6104.69	Womens/girls trousers and shorts, of other textile materials, knitted
6105.10	Mens/boys shirts, of cotton, knitted
6105.20	Mens/boys shirts, of man-made fibres, knitted
6105.90	Mens/boys shirts, of other textile materials, knitted
6106.10	Womens/girls blouses and shirts, of cotton, knitted
6106.20	Womens/girls blouses and shirts, of man-made fibres, knitted
6106.90	Womens/girls blouses and shirts, of other materials, knitted
6107.11	Mens/boys underpants and briefs, of cotton, knitted
6107.12	Mens/boys underpants and briefs, of man-made fibres, knitted
6107.19	Mens/boys underpants and briefs, of other textile materials, knitted
6107.21	Mens/boys nightshirts and pyjamas, of cotton, knitted
6107.22	Mens/boys nightshirts and pyjamas, of man-made fibres, knitted
6107.29	Mens/boys nightshirts and pyjamas, of other textile materials, knitted
6107.91	Mens/boys bathrobes, dressing gowns etc of cotton, knitted
6107.92	Mens/boys bathrobes, dressing gowns, etc of man-made fibres, knitted
6107.99	Mens/boys bathrobes, dressg gowns, etc of oth textile materials, knitted
6108.11	Womens/girls slips and petticoats, of man-made fibres, knitted
6108.19	Womens/girls slips and petticoats, of other textile materials, knitted
6108.21	Womens/girls briefs and panties, of cotton, knitted
6108.22	Womens/girls briefs and panties, of man-made fibres, knitted
6108.29	Womens/girls briefs and panties, of other textile materials, knitted
6108.31	Womens/girls nightdresses and pyjamas, of cotton, knitted
6108.32	Womens/girls nightdresses and pyjamas, of man-made fibres, knitted
6108.39	Womens/girls nightdresses & pyjamas, of other textile materials, knitted
6108.91	Womens/girls bathrobes, dressing gowns, etc, of cotton, knitted
6108.92	Womens/girls bathrobes, dressing gowns, etc, of manmade fibres, knitted
6108.99	Women/girls bathrobes, dressg gowns, etc, of oth textile materials, knittd
6109.10	T-shirts, singlets and other vests, of cotton, knitted
6109.90	T-shirts, singlets and other vests, of other textile materials, knitted
6110.10	Pullovers, cardigans&similar article of wool or fine animal hair, knittd
6110.20	Pullovers, cardigans and similar articles of cotton, knitted
6110.30	Pullovers, cardigans and similar articles of man-made fibres, knitted
6110.90	Pullovers, cardigans&similar articles of oth textile materials, knittd
6111.10	Babies garments&clothg accessories of wool or fine animal hair, knitted
6111.20	Babies garments and clothing accessories of cotton, knitted
6111.30	Babies garments and clothing accessories of synthetic fibres, knitted
6111.90	Babies garments&clothg accessories of other textile materials, knitted
6112.11	Track suits, of cotton, knitted
6112.12	Track suits, of synthetic fibres, knitted
6112.19	Track suits, of other textile materials, knitted
6112.20	Ski suits, of textile materials, knitted
6112.31	Mens/boys swimwear, of synthetic fibres, knitted
6112.39	Mens/boys swimwear, of other textile materials, knitted
6112.41	Womens/girls swimwear, of synthetic fibres, knitted
6112.49	Womens/girls swimwear, of other textile materials, knitted
6113.00	Garments made up of impreg, coatd, coverd or laminatd textile knittd fab
6114.10	Garments nes, of wool or fine animal hair, knitted
6114.20	Garments nes, of cotton, knitted
6114.30	Garments nes, of man-made fibres, knitted
6114.90	Garments nes, of other textile materials, knitted
6115.11	Panty hose&tights, of synthetic fibre yarns < 67 dtex / single yarn knittd
6115.12	Panty hose&tights, of synthetic fib yarns > / = 67 dtex / single yarn knittd
6115.19	Panty hose and tights, of other textile materials, knitted
6115.20	Women full-l/knee-1 hosiery, of textile yarn < 67 dtex / single yarn knittd
6115.91	Hosiery nes, of wool or fine animal hair, knitted
6115.92	Hosiery nes, of cotton, knitted
6115.93	Hosiery nes, of synthetic fibres, knitted
6115.99	Hosiery nes, of other textile materials, knitted
6116.10	Gloves impregnated, coated or covered with plastics or rubber, knitted
6116.91	Gloves, mittens and mitts, nes, of wool or fine animal hair, knitted
6116.92	Gloves, mittens and mitts, nes, of cotton, knitted
6116.93	Gloves, mittens and mitts, nes, of synthetic fibres, knitted
6116.99	Gloves, mittens and mitts, nes, of other textile materials, knitted
6117.10	Shawls, scarves, veils and the like, of textile materials, knitted
6117.20	Ties, bow ties and cravats, of textile materials, knitted
6117.80	Clothing accessories nes, of textile materials, knitted
6117.90	Parts of garments/of clothg accessories, of textile materials, knittd
Ch. 62	Art of apparel & clothing access, not knitted/crocheted
6201.11	Mens/boys overcoats&similar articles of wool/fine animal hair, not knit
6201.12	Mens/boys overcoats and similar articles of cotton, not knitted
6201.13	Mens/boys overcoats & similar articles of man-made fibres, not knitted
6201.19	Mens/boys overcoats&sim articles of oth textile materials, not knittd
6201.91	Mens/boys anoraks&similar articles, of wool/fine animal hair, not knittd
6201.92	Mens/boys anoraks and similar articles, of cotton, not knitted
6201.93	Mens/boys anoraks and similar articles, of man-made fibres, not knitted
6201.99	Mens/boys anoraks&similar articles, of oth textile materials, not knittd
6202.11	Womens/girls overcoats&sim articles of wool/fine animal hair nt knit
6202.12	Womens/girls overcoats and similar articles of cotton, not knitted
6202.13	Womens/girls overcoats&sim articles of man-made fibres, not knittd
6202.19	Womens/girls overcoats&similar articles of other textile mat, not knit
6202.91	Womens/girls anoraks&similar article of wool/fine animal hair, not knit
6202.92	Womens/girls anoraks and similar article of cotton, not knitted
6202.93	Womens/girls anoraks & similar article of man-made fibres, not knitted
6202.99	Womens/girls anoraks&similar article of oth textile materials, not knit
6203.11	Mens/boys suits, of wool or fine animal hair, not knitted
6203.12	Mens/boys suits, of synthetic fibres, not knitted
6203.19	Mens/boys suits, of other textile materials, not knitted
6203.21	Mens/boys ensembles, of wool or fine animal hair, not knitted
6203.22	Mens/boys ensembles, of cotton, not knitted
6203.23	Mens/boys ensembles, of synthetic fibres, not knitted
6203.29	Mens/boys ensembles, of other textile materials, not knitted
6203.31	Mens/boys jackets and blazers, of wool or fine animal hair, not knitted
6203.32	Mens/boys jackets and blazers, of cotton, not knitted
6203.33	Mens/boys jackets and blazers, of synthetic fibres, not knitted
6203.39	Mens/boys jackets and blazers, of other textile materials, not knitted
6203.41	Mens/boys trousers and shorts, of wool or fine animal hair, not knitted
6203.42	Mens/boys trousers and shorts, of cotton, not knitted
6203.43	Mens/boys trousers and shorts, of synthetic fibres, not knitted
6203.49	Mens/boys trousers and shorts, of other textile materials, not knitted
6204.11	Womens/girls suits, of wool or fine animal hair, not knitted
6204.12	Womens/girls suits, of cotton, not knitted
6204.13	Womens/girls suits, of synthetic fibres, not knitted
6204.19	Womens/girls suits, of other textile materials, not knitted
6204.21	Womens/girls ensembles, of wool or fine animal hair, not knitted
6204.22	Womens/girls ensembles, of cotton, not knitted
6204.23	Womens/girls ensembles, of synthetic fibres, not knitted
6204.29	Womens/girls ensembles, of other textile materials, not knitted
6204.31	Womens/girls jackets, of wool or fine animal hair, not knitted
6204.32	Womens/girls jackets, of cotton, not knitted
6204.33	Womens/girls jackets, of synthetic fibres, not knitted
6204.39	Womens/girls jackets, of other textile materials, not knitted
6204.41	Womens/girls dresses, of wool or fine animal hair, not knitted
6204.42	Womens/girls dresses, of cotton, not knitted
6204.43	Womens/girls dresses, of synthetic fibres, not knitted
6204.44	Womens/girls dresses, of artificial fibres, not knitted
6204.49	Womens/girls dresses, of other textile materials, not knitted
6204.51	Womens/girls skirts, of wool or fine animal hair, not knitted
6204.52	Womens/girls skirts, of cotton, not knitted
6204.53	Womens/girls skirts, of synthetic fibres, not knitted
6204.59	Womens/girls skirts, of other textile materials, not knitted
6204.61	Womens/girls trousers & shorts, of wool or fine animal hair, not knitted
6204.62	Womens/girls trousers and shorts, of cotton, not knitted
6204.63	Womens/girls trousers and shorts, of synthetic fibres, not knitted
6204.69	Womens/girls trousers & shorts, of other textile materials, not knitted
6205.10	Mens/boys shirts, of wool or fine animal hair, not knitted
6205.20	Mens/boys shirts, of cotton, not knitted
6205.30	Mens/boys shirts, of man-made fibres, not knitted
6205.90	Mens/boys shirts, of other textile materials, not knitted
6206.10	Womens/girls blouses and shirts, of silk or silk waste, not knitted
6206.20	Womens/girls blouses & shirts, of wool or fine animal hair, not knitted
6206.30	Womens/girls blouses and shirts, of cotton, not knitted
6206.40	Womens/girls blouses and shirts, of man-made fibres, not knitted
6206.90	Womens/girls blouses and shirts, of other textile materials, not knitted
6207.11	Mens/boys underpants and briefs, of cotton, not knitted
6207.19	Mens/boys underpants and briefs, of other textile materials, not knitted
6207.21	Mens/boys nightshirts and pyjamas, of cotton, not knitted
6207.22	Mens/boys nightshirts and pyjamas, of man-made fibres, not knitted
6207.29	Mens/boys nightshirts & pyjamas, of other textile materials, not knitted
6207.91	Mens/boys bathrobes, dressing gowns, etc of cotton, not knitted
6207.92	Mens/boys bathrobes, dressing gowns, etc of man-made fibres, not knitted
6207.99	Mens/boys bathrobes, dressg gowns, etc of oth textile materials, not knit
6208.11	Womens/girls slips and petticoats, of man-made fibres, not knitted
6208.19	Womens/girls slips & petticoats, of other textile materials, not knitted
6208.21	Womens/girls nightdresses and pyjamas, of cotton, not knitted
6208.22	Womens/girls nightdresses and pyjamas, of man-made fibres, not knitted
6208.29	Womens/girls nightdresses&pyjamas, of oth textile materials, not knitted
6208.91	Womens/girls panties, bathrobes, etc, of cotton, not knitted
6208.92	Womens/girls panties, bathrobes, etc, of man-made fibres, not knitted
6208.99	Womens/girls panties, bathrobes, etc, of oth textile materials, not knittd
6209.10	Babies garments&clothg accessories of wool o fine animal hair, not knit
6209.20	Babies garments and clothing accessories of cotton, not knitted
6209.30	Babies garments & clothing accessories of synthetic fibres, not knitted
6209.90	Babies garments&clothg accessories of oth textile materials, not knittd
6210.10	Garments made up of textile felts and of nonwoven textile fabrics
6210.20	Mens/boys overcoats&similar articles of impreg, ctd, cov etc, tex wov fab
6210.30	Womens/girls overcoats&sim articles, of impreg, ctd, etc, tex wov fab
6210.40	Mens/boys garments nes, made up of impreg, ctd, cov, etc, textile woven fab
6210.50	Womens/girls garments nes, of impregnatd, ctd, cov, etc, textile woven fab
6211.11	Mens/boys swimwear, of textile materials not knitted
6211.12	Womens/girls swimwear, of textile materials, not knitted
6211.20	Ski suits, of textile materials, not knitted
6211.31	Mens/boys garments nes, of wool or fine animal hair, not knitted
6211.32	Mens/boys garments nes, of cotton, not knitted
6211.33	Mens/boys garments nes, of man-made fibres, not knitted
6211.39	Mens/boys garments nes, of other textile materials, not knitted
6211.41	Womens/girls garments nes, of wool or fine animal hair,not knitted
6211.42	Womens/girls garments nes, of cotton, not knitted
6211.43	Womens/girls garments nes, of man-made fibres, not knitted
6211.49	Womens/girls garments nes, of other textile materials, not knitted
6212.10	Brassieres and parts thereof, of textile materials
6212.20	Girdles, panty girdles and parts thereof, of textile materials
6212.30	Corselettes and parts thereof, of textile materials
6212.90	Corsets, braces & similar articles & parts thereof, of textile materials
6213.10	Handkerchiefs, of silk or silk waste, not knitted
6213.20	Handkerchiefs, of cotton, not knitted
6213.90	Handkerchiefs, of other textile materials, not knitted
6214.10	Shawls, scarves, veils and the like, of silk or silk waste, not knitted
6214.20	Shawls, scarves, veils&the like, of wool or fine animal hair, not knitted
6214.30	Shawls, scarves, veils and the like, of synthetic fibres, not knitted
6214.40	Shawls, scarves, veils and the like, of artificial fibres, not knitted
6214.90	Shawls, scarves, veils & the like, of other textile materials, not knitted
6215.10	Ties, bow ties and cravats, of silk or silk waste, not knitted
6215.20	Ties, bow ties and cravats, of man-made fibres, not knitted
6215.90	Ties, bow ties and cravats, of other textile materials, not knitted
6216.00	Gloves, mittens and mitts, of textile materials, not knitted
6217.10	Clothing accessories nes, of textile materials, not knitted
6217.90	Parts of garments or of clothg accessories nes, of tex mat,not knittd.
Ch. 63	Other made up textile articles; sets; worn clothing etc.
6301.10	Electric blankets, of textile materials
6301.20	Blankets (other than electric) & travelling rugs, of wool or fine animal hair
6301.30	Blankets (other than electric) and travelling rugs, of cotton
6301.40	Blankets (other than electric) and travelling rugs, of synthetic fibres
6301.90	Blankets (other than electric) and travelling rugs, of other textile materials
6302.10	Bed linen, of textile knitted or crocheted materials
6302.21	Bed linen, of cotton, printed, not knitted
6302.22	Bed linen, of man-made fibres, printed, not knitted
6302.29	Bed linen, of other textile materials, printed, not knitted
6302.31	Bed linen, of cotton, nes
6302.32	Bed linen, of man-made fibres, nes
6302.39	Bed linen, of other textile materials, nes
6302.40	Table linen, of textile knitted or crocheted materials
6302.51	Table linen, of cotton, not knitted
6302.52	Table linen, of flax, not knitted
6302.53	Table linen, of man-made fibres, not knitted
6302.59	Table linen, of other textile materials, not knitted
6302.60	Toilet&kitchen linen, of terry towellg or similar terry fab, of cotton
6302.91	Toilet and kitchen linen, of cotton, nes
6302.92	Toilet and kitchen linen, of flax
6302.93	Toilet and kitchen linen, of man-made fibres
6302.99	Toilet and kitchen linen, of other textile materials
6303.11	Curtains, drapes, interior blinds&curtain or bed valances, of cotton, knit
6303.12	Curtains, drapes, interior blinds&curtain/bd valances, of syn fib, knittd
6303.19	Curtains, drapes, interior blinds&curtain/bd valances, oth tex mat, knit
6303.91	Curtains/drapes/interior blinds&curtain/bd valances, of cotton, not knit
6303.92	Curtains/drapes/interior blinds curtain/bd valances, of syn fib, nt knit
6303.99	Curtain/drape/interior blind curtain/bd valance, of oth tex mat, nt knit
6304.11	Bedspreads of textile materials, nes, knitted or crocheted
6304.19	Bedspreads of textile materials, nes, not knitted or crocheted
6304.91	Furnishing articles nes, of textile materials, knitted or crocheted
6304.92	Furnishing articles nes, of cotton, not knitted or crocheted
6304.93	Furnishing articles nes, of synthetic fibres, not knitted or crocheted
6304.99	Furnishg articles nes, of oth textile materials, not knittd o crochetd
6305.10	Sacks&bags, for packg of goods, of jute or of other textile bast fibres
6305.20	Sacks and bags, for packing of goods, of cotton
6305.31	Sacks&bags, for packg of goods, of polyethylene or polypropylene strips
6305.39	Sacks & bags, for packing of goods, of other man-made textile materials
6305.90	Sacks and bags, for packing of goods, of other textile materials
6306.11	Tarpaulins, awnings and sunblinds, of cotton
6306.12	Tarpaulins, awnings and sunblinds, of synthetic fibres
6306.19	Tarpaulins, awnings and sunblinds, of other textile materials
6306.21	Tents, of cotton
6306.22	Tents, of synthetic fibres
6306.29	Tents, of other textile materials
6306.31	Sails, of synthetic fibres
6306.39	Sails, of other textile materials
6306.41	Pneumatic mattresses, of cotton
6306.49	Pneumatic mattresses, of other textile materials
6306.91	Camping goods nes, of cotton
6306.99	Camping goods nes, of other textile materials
6307.10	Floor-cloths, dish-cloths, dusters & similar cleaning cloths, of tex mat
6307.20	Life jackets and life belts, of textile materials
6307.90	Made up articles, of textile materials, nes, including dress patterns
6308.00	Sets consistg of woven fab & yarn, for makg up into rugs, tapestries etc
6309.00	Worn clothing and other worn articles

Textile and clothing products in Chapters 30-49, 64-96

HS No.	Product Description
3005.90	Wadding, gauze, bandages and the like
ex 3921.12 ex 3921.13 ex 3921.90	Woven, knitted or non-woven fabrics coated, covered or laminated with plastics
ex 4202.12 ex 4202.22 ex 4202.32 ex 4202.92	Luggage, handbags and flatgoods with an outer surface predominantly of textile materials
ex 6405.20	Footwear with soles and uppers of wool felt
ex 6406.10	Footwear uppers of which 50% or more of the external surface area is textile material
ex 6406.99	Leg warmers and gaiters of textile material
6501.00	Hat-forms, hat bodies and hoods of felt; plateaux and manchons of felt
6502.00	Hat-shapes, plaited or made by assembling strips of any material
6503.00	Felt hats and other felt headgear
6504.00	Hats & other headgear, plaited or made by assembling strips of any material
6505.90	Hats & other headgear, knitted or made up from lace, or other textile material
6601.10	Umbrellas and sun umbrellas, garden type
6601.91	Other umbrella types, telescopic shaft
6601.99	Other umbrellas
ex 7019.10	Yarns of fibre glass
ex 7019.20	Woven fabrics of fibre glass
8708.21	Safety seat belts for motor vehicles
8804.00	Parachutes; their parts and accessories
9113.90	Watch straps, bands and bracelets of textile materials
ex 9404.90	Pillow and cushions of cotton; quilts; eiderdowns; comforters and similar articles of textile materials
9502.91	Garments for dolls
ex 9612.10	Woven ribbons, of man-made fibres, other than those measuring less than 30 mm in width and permanently put up in cartridges

Agreement on technical barriers to trade

Members,

Having regard to the Uruguay Round of Multilateral Trade Negotiations;

Desiring to further the objectives of GATT 1994;

Recognizing the important contribution that international standards and conformity assessment systems can make in this regard by improving efficiency of production and facilitating the conduct of international trade;

Desiring therefore to encourage the development of such international standards and conformity assessment systems;

Desiring however to ensure that technical regulations and standards, including packaging, marking and labelling requirements, and procedures for assessment of conformity with technical regulations and standards do not create unnecessary obstacles to international trade;

Recognizing that no country should be prevented from taking measures necessary to ensure the quality of its exports, or for the protection of human, animal or plant life or health, of the environment, or for the prevention of deceptive practices, at the levels it considers appropriate, subject to the requirement that they are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade, and are otherwise in accordance with the provisions of this Agreement;

Recognizing that no country should be prevented from taking measures necessary for the protection of its essential security interest;

Recognizing the contribution which international standardization can make to the transfer of technology from developed to developing countries;

Recognizing that developing countries may encounter special difficulties in the formulation and application of technical regulations and standards and procedures for assessment of conformity with technical regulations and standards, and desiring to assist them in their endeavours in this regard;

Hereby agree as follows:

Article 1. General Provisions

• 1.1 1 General terms for standardization and procedures for assessment of conformity shall normally have the meaning given to them by definitions adopted within the United Nations system and by international standardizing bodies taking into account their context and in the light of the object and purpose of this Agreement.

• 1.2 However, for the purposes of this Agreement the meaning of the terms given in Annex 1 applies.

• 1.3 All products, including industrial and agricultural products, shall be subject to the provisions of this Agreement.

• 1.4 Purchasing specifications prepared by governmental bodies for production or consumption requirements of governmental bodies are not subject to the provisions of this Agreement but are addressed in the Agreement on Government Procurement, according to its coverage.

• 1.5 The provisions of this Agreement do not apply to sanitary and phytosanitary measures as defined in Annex A of the Agreement on the Application of Sanitary and Phytosanitary Measures.

• 1.6 All references in this Agreement to technical regulations, standards and conformity assessment procedures shall be construed to include any amendments thereto and any additions to the rules or the product coverage thereof, except amendments and additions of an insignificant nature.

TECHNICAL REGULATIONS AND STANDARDS

Article 2. Preparation, Adoption and Application of Technical Regulations by Central Government Bodies

With respect to their central government bodies:

• 2.1 Members shall ensure that in respect of technical regulations, products imported from the territory of any Member shall be accorded treatment no less favourable than that accorded to like products of national origin and to like products originating in any other country.

• 2.2 Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. For this purpose, technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create. Such legitimate objectives are, inter alia: national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment. In assessing such risks, relevant elements of consideration are, inter alia: available scientific and technical information, related processing technology or intended end-uses of products.

• 2.3 Technical regulations shall not be maintained if the circumstances or objectives giving rise to their adoption no longer exist or if the changed circumstances or objectives can be addressed in a less trade-restrictive manner.

• 2.4 Where technical regulations are required and relevant international standards exist or their completion is imminent, Members shall use them, or the relevant parts of them, as a basis for their technical regulations except when such international standards or relevant parts would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued, for instance because of fundamental climatic or geographical factors or fundamental technological problems.

• 2.5 A Member preparing, adopting or applying a technical regulation which may have a significant effect on trade of other Members shall, upon the request of another Member, explain the justification for that technical regulation in terms of the provisions of paragraphs 2 to 4. Whenever a technical regulation is prepared, adopted or applied for one of the legitimate objectives explicitly mentioned in paragraph 2, and is in accordance with relevant international standards, it shall be rebuttably presumed not to create an unnecessary obstacle to international trade.

• 2.6 With a view to harmonizing technical regulations on as wide a basis as possible, Members shall play a full part, within the limits of their resources, in the preparation by appropriate international standardizing bodies of international standards for products for which they either have adopted, or expect to adopt, technical regulations.

• 2.7 Members shall give positive consideration to accepting as equivalent technical regulations of other Members, even if these regulations differ from their own, provided they are satisfied that these regulations adequately fulfil the objectives of their own regulations.

• 2.8 Wherever appropriate, Members shall specify technical regulations based on product requirements in terms of performance rather than design or descriptive characteristics.

• 2.9 Whenever a relevant international standard does not exist or the technical content of a proposed technical regulation is not in accordance with the technical content of relevant international standards, and if the technical regulation may have a significant effect on trade of other Members, Members shall:

  • 2.9.1 publish a notice in a publication at an early appropriate stage, in such a manner as to enable interested parties in other Members to become acquainted with it, that they propose to introduce a particular technical regulation;

  • 2.9.2 notify other Members through the Secretariat of the products to be covered by the proposed technical regulation, together with a brief indication of its objective and rationale. Such notifications shall take place at an early appropriate stage, when amendments can still be introduced and comments taken into account;

  • 2.9.3 upon request, provide to other Members particulars or copies of the proposed technical regulation and, whenever possible, identify the parts which in substance deviate from relevant international standards;

  • 2.9.4 without discrimination, allow reasonable time for other Members to make comments in writing, discuss these comments upon request, and take these written comments and the results of these discussions into account.

• 2.10 10 Subject to the provisions in the lead-in to paragraph 9, where urgent problems of safety, health, environmental protection or national security arise or threaten to arise for a Member, that Member may omit such of the steps enumerated in paragraph 9 as it finds necessary, provided that the Member, upon adoption of a technical regulation, shall:

  • 2.10.1 notify immediately other Members through the Secretariat of the particular technical regulation and the products covered, with a brief indication of the objective and the rationale of the technical regulation, including the nature of the urgent problems;

  • 2.10.2 upon request, provide other Members with copies of the technical regulation;

  • 2.10.3 without discrimination, allow other Members to present their comments in writing, discuss these comments upon request, and take these written comments and the results of these discussions into account.

• 2.11 Members shall ensure that all technical regulations which have been adopted are published promptly or otherwise made available in such a manner as to enable interested parties in other Members to become acquainted with them.

• 2.12 Except in those urgent circumstances referred to in paragraph 10, Members shall allow a reasonable interval between the publication of technical regulations and their entry into force in order to allow time for producers in exporting Members, and particularly in developing country Members, to adapt their products or methods of production to the requirements of the importing Member.

Article 3. Preparation, Adoption and Application of Technical Regulations by Local Government Bodies and Non-Governmental Bodies

With respect to their local government and non-governmental bodies within their territories:

• 3.1 Members shall take such reasonable measures as may be available to them to ensure compliance by such bodies with the provisions of Article 2, with the exception of the obligation to notify as referred to in paragraphs 9.2 and 10.1 of Article 2.

• 3.2 Members shall ensure that the technical regulations of local governments on the level directly below that of the central government in Members are notified in accordance with the provisions of paragraphs 9.2 and 10.1 of Article 2, noting that notification shall not be required for technical regulations the technical content of which is substantially the same as that of previously notified technical regulations of central government bodies of the Member concerned.

• 3.3 Members may require contact with other Members, including the notifications, provision of information, comments and discussions referred to in paragraphs 9 and 10 of Article 2, to take place through the central government.

• 3.4 Members shall not take measures which require or encourage local government bodies or non-governmental bodies within their territories to act in a manner inconsistent with the provisions of Article 2.

• 3.5 Members are fully responsible under this Agreement for the observance of all provisions of Article 2. Members shall formulate and implement positive measures and mechanisms in support of the observance of the provisions of Article 2 by other than central government bodies.

Article 4. Preparation, Adoption and Application of Standards

• 4.1 Members shall ensure that their central government standardizing bodies accept and comply with the Code of Good Practice for the Preparation, Adoption and Application of Standards in Annex 3 to this Agreement (referred to in this Agreement as the "Code of Good Practice"). They shall take such reasonable measures as may be available to them to ensure that local government and non-governmental standardizing bodies within their territories, as well as regional standardizing bodies of which they or one or more bodies within their territories are members, accept and comply with this Code of Good Practice. In addition, Members shall not take measures which have the effect of, directly or indirectly, requiring or encouraging such standardizing bodies to act in a manner inconsistent with the Code of Good Practice. The obligations of Members with respect to compliance of standardizing bodies with the provisions of the Code of Good Practice shall apply irrespective of whether or not a standardizing body has accepted the Code of Good Practice.

• 4.2 Standardizing bodies that have accepted and are complying with the Code of Good Practice shall be acknowledged by the Members as complying with the principles of this Agreement.

CONFORMITY WITH TECHNICAL REGULATIONS AND STANDARDS

Article 5. Procedures for Assessment of Conformity by Central Government Bodies

• 5.1 Members shall ensure that, in cases where a positive assurance of conformity with technical regulations or standards is required, their central government bodies apply the following provisions to products originating in the territories of other Members:

  • 5.1.1 conformity assessment procedures are prepared, adopted and applied so as to grant access for suppliers of like products originating in the territories of other Members under conditions no less favourable than those accorded to suppliers of like products of national origin or originating in any other country, in a comparable situation; access entails suppliers' right to an assessment of conformity under the rules of the procedure, including, when foreseen by this procedure, the possibility to have conformity assessment activities undertaken at the site of facilities and to receive the mark of the system;

  • 5.1.2 conformity assessment procedures are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. This means, inter alia, that conformity assessment procedures shall not be more strict or be applied more strictly than is necessary to give the importing Member adequate confidence that products conform with the applicable technical regulations or standards, taking account of the risks non-conformity would create.

• 5.2 When implementing the provisions of paragraph 1, Members shall ensure that:

  • 5.2.1 conformity assessment procedures are undertaken and completed as expeditiously as possible and in a no less favourable order for products originating in the territories of other Members than for like domestic products;

  • 5.2.2 the standard processing period of each conformity assessment procedure is published or that the anticipated processing period is communicated to the applicant upon request; when receiving an application, the competent body promptly examines the completeness of the documentation and informs the applicant in a precise and complete manner of all deficiencies; the competent body transmits as soon as possible the results of the assessment in a precise and complete manner to the applicant so that corrective action may be taken if necessary; even when the application has deficiencies, the competent body proceeds as far as practicable with the conformity assessment if the applicant so requests; and that, upon request, the applicant is informed of the stage of the procedure, with any delay being explained;

  • 5.2.3 information requirements are limited to what is necessary to assess conformity and determine fees;

  • 5.2.4 the confidentiality of information about products originating in the territories of other Members arising from or supplied in connection with such conformity assessment procedures is respected in the same way as for domestic products and in such a manner that legitimate commercial interests are protected;

  • 5.2.5 any fees imposed for assessing the conformity of products originating in the territories of other Members are equitable in relation to any fees chargeable for assessing the conformity of like products of national origin or originating in any other country, taking into account communication, transportation and other costs arising from differences between location of facilities of the applicant and the conformity assessment body;

  • 5.2.6 the siting of facilities used in conformity assessment procedures and the selection of samples are not such as to cause unnecessary inconvenience to applicants or their agents;

  • 5.2.7 whenever specifications of a product are changed subsequent to the determination of its conformity to the applicable technical regulations or standards, the conformity assessment procedure for the modified product is limited to what is necessary to determine whether adequate confidence exists that the product still meets the technical regulations or standards concerned;

  • 5.2.8 a procedure exists to review complaints concerning the operation of a conformity assessment procedure and to take corrective action when a complaint is justified.

• 5.3 Nothing in paragraphs 1 and 2 shall prevent Members from carrying out reasonable spot checks within their territories.

• 5.4 In cases where a positive assurance is required that products conform with technical regulations or standards, and relevant guides or recommendations issued by international standardizing bodies exist or their completion is imminent, Members shall ensure that central government bodies use them, or the relevant parts of them, as a basis for their conformity assessment procedures, except where, as duly explained upon request, such guides or recommendations or relevant parts are inappropriate for the Members concerned, for, inter alia, such reasons as: national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment; fundamental climatic or other geographical factors; fundamental technological or infrastructural problems.

• 5.5 With a view to harmonizing conformity assessment procedures on as wide a basis as possible, Members shall play a full part, within the limits of their resources, in the preparation by appropriate international standardizing bodies of guides and recommendations for conformity assessment procedures.

• 5.6 Whenever a relevant guide or recommendation issued by an international standardizing body does not exist or the technical content of a proposed conformity assessment procedure is not in accordance with relevant guides and recommendations issued by international standardizing bodies, and if the conformity assessment procedure may have a significant effect on trade of other Members, Members shall:

  • 5.6.1 publish a notice in a publication at an early appropriate stage, in such a manner as to enable interested parties in other Members to become acquainted with it, that they propose to introduce a particular conformity assessment procedure;

  • 5.6.2 notify other Members through the Secretariat of the products to be covered by the proposed conformity assessment procedure, together with a brief indication of its objective and rationale. Such notifications shall take place at an early appropriate stage, when amendments can still be introduced and comments taken into account;

  • 5.6.3 upon request, provide to other Members particulars or copies of the proposed procedure and, whenever possible, identify the parts which in substance deviate from relevant guides or recommendations issued by international standardizing bodies;

  • 5.6.4 without discrimination, allow reasonable time for other Members to make comments in writing, discuss these comments upon request, and take these written comments and the results of these discussions into account.

• 5.7 Subject to the provisions in the lead-in to paragraph 6, where urgent problems of safety, health, environmental protection or national security arise or threaten to arise for a Member, that Member may omit such of the steps enumerated in paragraph 6 as it finds necessary, provided that the Member, upon adoption of the procedure, shall:

  • 5.7.1 notify immediately other Members through the Secretariat of the particular procedure and the products covered, with a brief indication of the objective and the rationale of the procedure, including the nature of the urgent problems;

  • 5.7.2 upon request, provide other Members with copies of the rules of the procedure;

  • 5.7.3 without discrimination, allow other Members to present their comments in writing, discuss these comments upon request, and take these written comments and the results of these discussions into account.

• 5.8 Members shall ensure that all conformity assessment procedures which have been adopted are published promptly or otherwise made available in such a manner as to enable interested parties in other Members to become acquainted with them.

• 5.9 Except in those urgent circumstances referred to in paragraph 7, Members shall allow a reasonable interval between the publication of requirements concerning conformity assessment procedures and their entry into force in order to allow time for producers in exporting Members, and particularly in developing country Members, to adapt their products or methods of production to the requirements of the importing Member.

Article 6. Recognition of Conformity Assessment by Central Government Bodies

With respect to their central government bodies:

• 6.1 Without prejudice to the provisions of paragraphs 3 and 4, Members shall ensure, whenever possible, that results of conformity assessment procedures in other Members are accepted, even when those procedures differ from their own, provided they are satisfied that those procedures offer an assurance of conformity with applicable technical regulations or standards equivalent to their own procedures. It is recognized that prior consultations may be necessary in order to arrive at a mutually satisfactory understanding regarding, in particular:

  • 6.1.1 adequate and enduring technical competence of the relevant conformity assessment bodies in the exporting Member, so that confidence in the continued reliability of their conformity assessment results can exist; in this regard, verified compliance, for instance through accreditation, with relevant guides or recommendations issued by international standardizing bodies shall be taken into account as an indication of adequate technical competence;

  • 6.1.2 limitation of the acceptance of conformity assessment results to those produced by designated bodies in the exporting Member.

• 6.2 Members shall ensure that their conformity assessment procedures permit, as far as practicable, the implementation of the provisions in paragraph 1.

• 6.3 Members are encouraged, at the request of other Members, to be willing to enter into negotiations for the conclusion of agreements for the mutual recognition of results of each other's conformity assessment procedures. Members may require that such agreements fulfil the criteria of paragraph 1 and give mutual satisfaction regarding their potential for facilitating trade in the products concerned.

• 6.4 Members are encouraged to permit participation of conformity assessment bodies located in the territories of other Members in their conformity assessment procedures under conditions no less favourable than those accorded to bodies located within their territory or the territory of any other country.

Article 7. Procedures for Assessment of Conformity by Local Government Bodies

With respect to their local government bodies within their territories:

• 7.1 Members shall take such reasonable measures as may be available to them to ensure compliance by such bodies with the provisions of Articles 5 and 6, with the exception of the obligation to notify as referred to in paragraphs 6.2 and 7.1 of Article 5.

• 7.2 Members shall ensure that the conformity assessment procedures of local governments on the level directly below that of the central government in Members are notified in accordance with the provisions of paragraphs 6.2 and 7.1 of Article 5, noting that notifications shall not be required for conformity assessment procedures the technical content of which is substantially the same as that of previously notified conformity assessment procedures of central government bodies of the Members concerned.

• 7.3 Members may require contact with other Members, including the notifications, provision of information, comments and discussions referred to in paragraphs 6 and 7 of Article 5, to take place through the central government.

• 7.4 Members shall not take measures which require or encourage local government bodies within their territories to act in a manner inconsistent with the provisions of Articles 5 and 6.

• 7.5 Members are fully responsible under this Agreement for the observance of all provisions of Articles 5 and 6. Members shall formulate and implement positive measures and mechanisms in support of the observance of the provisions of Articles 5 and 6 by other than central government bodies.

Article 8. Procedures for Assessment of Conformity by Non-Governmental Bodies

• 8.1 Members shall take such reasonable measures as may be available to them to ensure that non-governmental bodies within their territories which operate conformity assessment procedures comply with the provisions of Articles 5 and 6, with the exception of the obligation to notify proposed conformity assessment procedures. In addition, Members shall not take measures which have the effect of, directly or indirectly, requiring or encouraging such bodies to act in a manner inconsistent with the provisions of Articles 5 and 6.

• 8.2 Members shall ensure that their central government bodies rely on conformity assessment procedures operated by non-governmental bodies only if these latter bodies comply with the provisions of Articles 5 and 6, with the exception of the obligation to notify proposed conformity assessment procedures.

Article 9. International and Regional Systems

• 9.1 Where a positive assurance of conformity with a technical regulation or standard is required, Members shall, wherever practicable, formulate and adopt international systems for conformity assessment and become members thereof or participate therein.

• 9.2 Members shall take such reasonable measures as may be available to them to ensure that international and regional systems for conformity assessment in which relevant bodies within their territories are members or participants comply with the provisions of Articles 5 and 6. In addition, Members shall not take any measures which have the effect of, directly or indirectly, requiring or encouraging such systems to act in a manner inconsistent with any of the provisions of Articles 5 and 6.

• 9.3 Members shall ensure that their central government bodies rely on international or regional conformity assessment systems only to the extent that these systems comply with the provisions of Articles 5 and 6, as applicable.

INFORMATION AND ASSISTANCE

Article 10. Information About Technical Regulations, Standards and Conformity Assessment Procedures

• 10.1 Each Member shall ensure that an enquiry point exists which is able to answer all reasonable enquiries from other Members and interested parties in other Members as well as to provide the relevant documents regarding:

  • 10.1.1 any technical regulations adopted or proposed within its territory by central or local government bodies, by nongovernmental bodies which have legal power to enforce a technical regulation, or by regional standardizing bodies of which such bodies are members or participants;

  • 10.1.2 any standards adopted or proposed within its territory by central or local government bodies, or by regional standardizing bodies of which such bodies are members or participants;

  • 10.1.3 any conformity assessment procedures, or proposed conformity assessment procedures, which are operated within its territory by central or local government bodies, or by nongovernmental bodies which have legal power to enforce a technical regulation, or by regional bodies of which such bodies are members or participants;

  • 10.1.4 the membership and participation of the Member, or of relevant central or local government bodies within its territory, in international and regional standardizing bodies and conformity assessment systems, as well as in bilateral and multilateral arrangements within the scope of this Agreement; it shall also be able to provide reasonable information on the provisions of such systems and arrangements;

  • 10.1.5 the location of notices published pursuant to this Agreement, or the provision of information as to where such information can be obtained; and

  • 10.1.6 the location of the enquiry points mentioned in paragraph 3.

• 10.2 If, however, for legal or administrative reasons more than one enquiry point is established by a Member, that Member shall provide to the other Members complete and unambiguous information on the scope of responsibility of each of these enquiry points. In addition, that Member shall ensure that any enquiries addressed to an incorrect enquiry point shall promptly be conveyed to the correct enquiry point.

• 10.3 Each Member shall take such reasonable measures as may be available to it to ensure that one or more enquiry points exist which are able to answer all reasonable enquiries from other Members and interested parties in other Members as well as to provide the relevant documents or information as to where they can be obtained regarding:

  • 10.3.1 any standards adopted or proposed within its territory by non-governmental standardizing bodies, or by regional standardizing bodies of which such bodies are members or participants; and

  • 10.3.2 any conformity assessment procedures, or proposed conformity assessment procedures, which are operated within its territory by non-governmental bodies, or by regional bodies of which such bodies are members or participants;

  • 10.3.3 the membership and participation of relevant nongovernmental bodies within its territory in international and regional standardizing bodies and conformity assessment systems, as well as in bilateral and multilateral arrangements within the scope of this Agreement; they shall also be able to provide reasonable information on the provisions of such systems and arrangements.

• 10.4 Members shall take such reasonable measures as may be available to them to ensure that where copies of documents are requested by other Members or by interested parties in other Members, in accordance with the provisions of this Agreement, they are supplied at an equitable price (if any) which shall, apart from the real cost of delivery, be the same for the nationals29 of the Member concerned or of any other Member.

• 10.5 Developed country Members shall, if requested by other Members, provide, in English, French or Spanish, translations of the documents covered by a specific notification or, in case of voluminous documents, of summaries of such documents.

• 10.6 The Secretariat shall, when it receives notifications in accordance with the provisions of this Agreement, circulate copies of the notifications to all Members and interested international standardizing and conformity assessment bodies, and draw the attention of developing country Members to any notifications relating to products of particular interest to them.

• 10.7 Whenever a Member has reached an agreement with any other country or countries on issues related to technical regulations, standards or conformity assessment procedures which may have a significant effect on trade, at least one Member party to the agreement shall notify other Members through the Secretariat of the products to be covered by the agreement and include a brief description of the agreement. Members concerned are encouraged to enter, upon request, into consultations with other Members for the purposes of concluding similar agreements or of arranging for their participation in such agreements.

• 10.8 Nothing in this Agreement shall be construed as requiring:

  • 10.8.1 the publication of texts other than in the language of the Member;

  • 10.8.2 the provision of particulars or copies of drafts other than in the language of the Member except as stated in paragraph 5; or

  • 10.8.3 Members to furnish any information, the disclosure of which they consider contrary to their essential security interests.

• 10.9 Notifications to the Secretariat shall be in English, French or Spanish.

• 10.10 Members shall designate a single central government authority that is responsible for the implementation on the national level of the provisions concerning notification procedures under this Agreement except those included in Annex 3.

• 10.11 If, however, for legal or administrative reasons the responsibility for notification procedures is divided among two or more central government authorities, the Member concerned shall provide to the other Members complete and unambiguous information on the scope of responsibility of each of these authorities.

Article 11. Technical Assistance to Other Members

• 11.1 Members shall, if requested, advise other Members, especially the developing country Members, on the preparation of technical regulations.

• 11.2 Members shall, if requested, advise other Members, especially the developing country Members, and shall grant them technical assistance on mutually agreed terms and conditions regarding the establishment of national standardizing bodies, and participation in the international standardizing bodies, and shall encourage their national standardizing bodies to do likewise.

• 11.3 Members shall, if requested, take such reasonable measures as may be available to them to arrange for the regulatory bodies within their territories to advise other Members, especially the developing country Members, and shall grant them technical assistance on mutually agreed terms and conditions regarding:

  • 11.3.1 the establishment of regulatory bodies, or bodies for the assessment of conformity with technical regulations; and

  • 11.3.2 the methods by which their technical regulations can best be met.

• 11.4 Members shall, if requested, take such reasonable measures as may be available to them to arrange for advice to be given to other Members, especially the developing country Members, and shall grant them technical assistance on mutually agreed terms and conditions regarding the establishment of bodies for the assessment of conformity with standards adopted within the territory of the requesting Member.

• 11.5 Members shall, if requested, advise other Members, especially the developing country Members, and shall grant them technical assistance on mutually agreed terms and conditions regarding the steps that should be taken by their producers if they wish to have access to systems for conformity assessment operated by governmental or nongovernmental bodies within the territory of the Member receiving the request.

• 11.6 Members which are members or participants of international or regional systems for conformity assessment shall, if requested, advise other Members, especially the developing country Members, and shall grant them technical assistance on mutually agreed terms and conditions regarding the establishment of the institutions and legal framework which would enable them to fulfil the obligations of membership or participation in such systems.

• 11.7 Members shall, if so requested, encourage bodies within their territories which are members or participants of international or regional systems for conformity assessment to advise other Members, especially the developing country Members, and should consider requests for technical assistance from them regarding the establishment of the institutions which would enable the relevant bodies within their territories to fulfil the obligations of membership or participation.

• 11.8 In providing advice and technical assistance to other Members in terms of paragraphs 1 to 7, Members shall give priority to the needs of the least-developed country Members.

Article 12. Special and Differential Treatment of Developing Country Members

• 12.1 Members shall provide differential and more favourable treatment to developing country Members to this Agreement, through the following provisions as well as through the relevant provisions of other Articles of this Agreement.

• 12.2 Members shall give particular attention to the provisions of this Agreement concerning developing country Members' rights and obligations and shall take into account the special development, financial and trade needs of developing country Members in the implementation of this Agreement, both nationally and in the operation of this Agreement's institutional arrangements.

• 12.3 Members shall, in the preparation and application of technical regulations, standards and conformity assessment procedures, take account of the special development, financial and trade needs of developing country Members, with a view to ensuring that such technical regulations, standards and conformity assessment procedures do not create unnecessary obstacles to exports from developing country Members.

• 12.4 Members recognize that, although international standards, guides or recommendations may exist, in their particular technological and socio-economic conditions, developing country Members adopt certain technical regulations, standards or conformity assessment procedures aimed at preserving indigenous technology and production methods and processes compatible with their development needs. Members therefore recognize that developing country Members should not be expected to use international standards as a basis for their technical regulations or standards, including test methods, which are not appropriate to their development, financial and trade needs.

• 12.5 Members shall take such reasonable measures as may be available to them to ensure that international standardizing bodies and international systems for conformity assessment are organized and operated in a way which facilitates active and representative participation of relevant bodies in all Members, taking into account the special problems of developing country Members.

• 12.6 Members shall take such reasonable measures as may be available to them to ensure that international standardizing bodies, upon request of developing country Members, examine the possibility of, and, if practicable, prepare international standards concerning products of special interest to developing country Members.

• 12.7 Members shall, in accordance with the provisions of Article 11, provide technical assistance to developing country Members to ensure that the preparation and application of technical regulations, standards and conformity assessment procedures do not create unnecessary obstacles to the expansion and diversification of exports from developing country Members. In determining the terms and conditions of the technical assistance, account shall be taken of the stage of development of the requesting Members and in particular of the least-developed country Members.

• 12.8 It is recognized that developing country Members may face special problems, including institutional and infrastructural problems, in the field of preparation and application of technical regulations, standards and conformity assessment procedures. It is further recognized that the special development and trade needs of developing country Members, as well as their stage of technological development, may hinder their ability to discharge fully their obligations under this Agreement. Members, therefore, shall take this fact fully into account. Accordingly, with a view to ensuring that developing country Members are able to comply with this Agreement, the Committee on Technical Barriers to Trade provided for in Article 13 (referred to in this Agreement as the "Committee") is enabled to grant, upon request, specified, time-limited exceptions in whole or in part from obligations under this Agreement. When considering such requests the Committee shall take into account the special problems, in the field of preparation and application of technical regulations, standards and conformity assessment procedures, and the special development and trade needs of the developing country Member, as well as its stage of technological development, which may hinder its ability to discharge fully its obligations under this Agreement. The Committee shall, in particular, take into account the special problems of the least-developed country Members.

• 12.9 During consultations, developed country Members shall bear in mind the special difficulties experienced by developing country Members in formulating and implementing standards and technical regulations and conformity assessment procedures, and in their desire to assist developing country Members with their efforts in this direction, developed country Members shall take account of the special needs of the former in regard to financing, trade and development.

• 12.10 The Committee shall examine periodically the special and differential treatment, as laid down in this Agreement, granted to developing country Members on national and international levels.

INSTITUTIONS, CONSULTATION AND DISPUTE SETTLEMENT

Article 13. The Committee on Technical Barriers to Trade

• 13.1 A Committee on Technical Barriers to Trade is hereby established, and shall be composed of representatives from each of the Members. The Committee shall elect its own Chairman and shall meet as necessary, but no less than once a year, for the purpose of affording Members the opportunity of consulting on any matters relating to the operation of this Agreement or the furtherance of its objectives, and shall carry out such responsibilities as assigned to it under this Agreement or by the Members.

• 13.2 The Committee shall establish working parties or other bodies as may be appropriate, which shall carry out such responsibilities as may be assigned to them by the Committee in accordance with the relevant provisions of this Agreement.

• 13.3 It is understood that unnecessary duplication should be avoided between the work under this Agreement and that of governments in other technical bodies. The Committee shall examine this problem with a view to minimizing such duplication.

Article 14. Consultation and Dispute Settlement

• 14.1 Consultations and the settlement of disputes with respect to any matter affecting the operation of this Agreement shall take place under the auspices of the Dispute Settlement Body and shall follow, mutatis mutandis, the provisions of Articles XXII and XXIII of GATT 1994, as elaborated and applied by the Dispute Settlement Understanding.

• 14.2 At the request of a party to a dispute, or at its own initiative, a panel may establish a technical expert group to assist in questions of a technical nature, requiring detailed consideration by experts.

• 14.3 Technical expert groups shall be governed by the procedures of Annex 2.

• 14.4 4 The dispute settlement provisions set out above can be invoked in cases where a Member considers that another Member has not achieved satisfactory results under Articles 3, 4, 7, 8 and 9 and its trade interests are significantly affected. In this respect, such results shall be equivalent to those as if the body in question were a Member.

FINAL PROVISIONS

Article 15. Final Provisions

Reservations

• 15.1 Reservations may not be entered in respect of any of the provisions of this Agreement without the consent of the other Members.

Review

• 15.2 Each Member shall, promptly after the date on which the WTO Agreement enters into force for it, inform the Committee of measures in existence or taken to ensure the implementation and administration of this Agreement. Any changes of such measures thereafter shall also be notified to the Committee.

• 15.3 The Committee shall review annually the implementation and operation of this Agreement taking into account the objectives thereof.

• 15.4 Not later than the end of the third year from the date of entry into force of the WTO Agreement and at the end of each three-year period thereafter, the Committee shall review the operation and implementation of this Agreement, including the provisions relating to transparency, with a view to recommending an adjustment of the rights and obligations of this Agreement where necessary to ensure mutual economic advantage and balance of rights and obligations, without prejudice to the provisions of Article 12. Having regard, inter alia, to the experience gained in the implementation of the Agreement, the Committee shall, where appropriate, submit proposals for amendments to the text of this Agreement to the Council for Trade in Goods.

Annexes

• 15.5 The annexes to this Agreement constitute an integral part thereof.

Annex 1. Terms and their definitions for the purpose of this agreement

The terms presented in the sixth edition of the ISO/IEC Guide 2: 1991, General Terms and Their Definitions Concerning Standardization and Related Activities, shall, when used in this Agreement, have the same meaning as given in the definitions in the said Guide taking into account that services are excluded from the coverage of this Agreement.

For the purpose of this Agreement, however, the following definitions shall apply:

• 1. Technical regulation

  Document which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method.

  Explanatory note

  The definition in ISO/IEC Guide 2 is not self-contained, but based on the so-called "building block" system.

• 2. Standard

  Document approved by a recognized body, that provides, for common and repeated use, rules, guidelines or characteristics for products or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method.

  Explanatory note

  The terms as defined in ISO/IEC Guide 2 cover products, processes and services. This Agreement deals only with technical regulations, standards and conformity assessment procedures related to products or processes and production methods. Standards as defined by ISO/IEC Guide 2 may be mandatory or voluntary. For the purpose of this Agreement standards are defined as voluntary and technical regulations as mandatory documents. Standards prepared by the international standardization community are based on consensus. This Agreement covers also documents that are not based on consensus.

• 3. Conformity assessment procedures

  Any procedure used, directly or indirectly, to determine that relevant requirements in technical regulations or standards are fulfilled.

  Explanatory note

  Conformity assessment procedures include, inter alia, procedures for sampling, testing and inspection; evaluation, verification and assurance of conformity; registration, accreditation and approval as well as their combinations.

• 4. International body or system

  Body or system whose membership is open to the relevant bodies of at least all Members.

• 5. Regional body or system

  Body or system whose membership is open to the relevant bodies of only some of the Members.

• 6. Central government body

  Central government, its ministries and departments or any body subject to the control of the central government in respect of the activity in question.

  Explanatory note:

  In the case of the European Communities the provisions governing central government bodies apply. However, regional bodies or conformity assessment systems may be established within the European Communities, and in such cases would be subject to the provisions of this Agreement on regional bodies or conformity assessment systems.

• 7. Local government body

  Government other than a central government (e.g. states, provinces, Länder, cantons, municipalities, etc.), its ministries or departments or any body subject to the control of such a government in respect of the activity in question.

• 8. Non-governmental body

  Body other than a central government body or a local government body, including a non-governmental body which has legal power to enforce a technical regulation.

Annex 2. Technical expert groups

The following procedures shall apply to technical expert groups established in accordance with the provisions of Article 14.

• 1. Technical expert groups are under the panel's authority. Their terms of reference and detailed working procedures shall be decided by the panel, and they shall report to the panel.

• 2. Participation in technical expert groups shall be restricted to persons of professional standing and experience in the field in question.

• 3. Citizens of parties to the dispute shall not serve on a technical expert group without the joint agreement of the parties to the dispute, except in exceptional circumstances when the panel considers that the need for specialized scientific expertise cannot be fulfilled otherwise. Government officials of parties to the dispute shall not serve on a technical expert group. Members of technical expert groups shall serve in their individual capacities and not as government representatives, nor as representatives of any organization. Governments or organizations shall therefore not give them instructions with regard to matters before a technical expert group.

• 4. Technical expert groups may consult and seek information and technical advice from any source they deem appropriate. Before a technical expert group seeks such information or advice from a source within the jurisdiction of a Member, it shall inform the government of that Member. Any Member shall respond promptly and fully to any request by a technical expert group for such information as the technical expert group considers necessary and appropriate.

• 5. The parties to a dispute shall have access to all relevant information provided to a technical expert group, unless it is of a confidential nature. Confidential information provided to the technical expert group shall not be released without formal authorization from the government, organization or person providing the information. Where such information is requested from the technical expert group but release of such information by the technical expert group is not authorized, a non-confidential summary of the information will be provided by the government, organization or person supplying the information.

• 6. The technical expert group shall submit a draft report to the Members concerned with a view to obtaining their comments, and taking them into account, as appropriate, in the final report, which shall also be circulated to the Members concerned when it is submitted to the panel.

Annex 3. Code of good practice for the preparation, adoption and application of standards

General Provisions

A.

For the purposes of this Code the definitions in Annex 1 of this Agreement shall apply.

B.

This Code is open to acceptance by any standardizing body within the territory of a Member of the WTO, whether a central government body, a local government body, or a non-governmental body; to any governmental regional standardizing body one or more members of which are Members of the WTO; and to any non-governmental regional standardizing body one or more members of which are situated within the territory of a Member of the WTO (referred to in this Code collectively as “standardizing bodies” and individually as “the standardizing body”).

C.

Standardizing bodies that have accepted or withdrawn from this Code shall notify this fact to the ISO/IEC Information Centre in Geneva. The notification shall include the name and address of the body concerned and the scope of its current and expected standardization activities. The notification may be sent either directly to the ISO/IEC Information Centre, or through the national member body of ISO/IEC or, preferably, through the relevant national member or international affiliate of ISONET, as appropriate.

Substantive provisions

D.

In respect of standards, the standardizing body shall accord treatment to products originating in the territory of any other Member of the WTO no less favourable than that accorded to like products of national origin and to like products originating in any other country.

E.

The standardizing body shall ensure that standards are not prepared, adopted or applied with a view to, or with the effect of, creating unnecessary obstacles to international trade.

F.

Where international standards exist or their completion is imminent, the standardizing body shall use them, or the relevant parts of them, as a basis for the standards it develops, except where such international standards or relevant parts would be ineffective or inappropriate, for instance, because of an insufficient level of protection or fundamental climatic or geographical factors or fundamental technological problems.

G.

With a view to harmonizing standards on as wide a basis as possible, the standardizing body shall, in an appropriate way, play a full part, within the limits of its resources, in the preparation by relevant international standardizing bodies of international standards regarding subject matter for which it either has adopted, or expects to adopt, standards. For standardizing bodies within the territory of a Member, participation in a particular international standardization activity shall, whenever possible, take place through one delegation representing all standardizing bodies in the territory that have adopted, or expect to adopt, standards for the subject matter to which the international standardization activity relates.

H.

The standardizing body within the territory of a Member shall make every effort to avoid duplication of, or overlap with, the work of other standardizing bodies in the national territory or with the work of relevant international or regional standardizing bodies. They shall also make every effort to achieve a national consensus on the standards they develop. Likewise the regional standardizing body shall make every effort to avoid duplication of, or overlap with, the work of relevant international standardizing bodies.

I.

Wherever appropriate, the standardizing body shall specify standards based on product requirements in terms of performance rather than design or descriptive characteristics.

J.

At least once every six months, the standardizing body shall publish a work programme containing its name and address, the standards it is currently preparing and the standards which it has adopted in the preceding period. A standard is under preparation from the moment a decision has been taken to develop a standard until that standard has been adopted. The titles of specific draft standards shall, upon request, be provided in English, French or Spanish. A notice of the existence of the work programme shall be published in a national or, as the case may be, regional publication of standardization activities.

The work programme shall for each standard indicate, in accordance with any ISONET rules, the classification relevant to the subject matter, the stage attained in the standard's development, and the references of any international standards taken as a basis. No later than at the time of publication of its work programme, the standardizing body shall notify the existence thereof to the ISO/IEC Information Centre in Geneva.

The notification shall contain the name and address of the standardizing body, the name and issue of the publication in which the work programme is published, the period to which the work programme applies, its price (if any), and how and where it can be obtained. The notification may be sent directly to the ISO/IEC Information Centre, or, preferably, through the relevant national member or international affiliate of ISONET, as appropriate.

K.

The national member of ISO/IEC shall make every effort to become a member of ISONET or to appoint another body to become a member as well as to acquire the most advanced membership type possible for the ISONET member. Other standardizing bodies shall make every effort to associate themselves with the ISONET member.

L.

Before adopting a standard, the standardizing body shall allow a period of at least 60 days for the submission of comments on the draft standard by interested parties within the territory of a Member of the WTO. This period may, however, be shortened in cases where urgent problems of safety, health or environment arise or threaten to arise. No later than at the start of the comment period, the standardizing body shall publish a notice announcing the period for commenting in the publication referred to in paragraph J. Such notification shall include, as far as practicable, whether the draft standard deviates from relevant international standards.

M.

On the request of any interested party within the territory of a Member of the WTO, the standardizing body shall promptly provide, or arrange to provide, a copy of a draft standard which it has submitted for comments. Any fees charged for this service shall, apart from the real cost of delivery, be the same for foreign and domestic parties.

N.

The standardizing body shall take into account, in the further processing of the standard, the comments received during the period for commenting. Comments received through standardizing bodies that have accepted this Code of Good Practice shall, if so requested, be replied to as promptly as possible. The reply shall include an explanation why a deviation from relevant international standards is necessary.

0.

Once the standard has been adopted, it shall be promptly published.

P.

On the request of any interested party within the territory of a Member of the WTO, the standardizing body shall promptly provide, or arrange to provide, a copy of its most recent work programme or of a standard which it produced. Any fees charged for this service shall, apart from the real cost of delivery, be the same for foreign and domestic parties.

Q.

The standardizing body shall afford sympathetic consideration to, and adequate opportunity for, consultation regarding representations with respect to the operation of this Code presented by standardizing bodies that have accepted this Code of Good Practice. It shall make an objective effort to solve any complaints.

Agreement on trade-related investment measures

Members,

Considering that Ministers agreed in the Punta del Este Declaration that "Following an examination of the operation of GATT Articles related to the trade restrictive and distorting effects of investment measures, negotiations should elaborate, as appropriate, further provisions that may be necessary to avoid such adverse effects on trade";

Desiring to promote the expansion and progressive liberalization of world trade and to facilitate investment across international frontiers so as to increase the economic growth of all trading partners, particularly developing country Members, while ensuring free competition;

Taking into account the particular trade, development and financial needs of developing country Members, particularly those of the least-developed country Members;

Recognizing that certain investment measures can cause trade-restrictive and distorting effects;

Hereby agree as follows:

Article 1. Coverage

This Agreement applies to investment measures related to trade in goods only (referred to in this Agreement as "TRIMs").

Article 2. National Treatment and Quantitative Restrictions

• 1 Without prejudice to other rights and obligations under GATT 1994, no Member shall apply any TRIM that is inconsistent with the provisions of Article III or Article XI of GATT 1994.

• 2 An illustrative list of TRIMs that are inconsistent with the obligation of national treatment provided for in paragraph 4 of Article III of GATT 1994 and the obligation of general elimination of quantitative restrictions provided for in paragraph 1 of Article XI of GATT 1994 is contained in the Annex to this Agreement.

Article 3. Exceptions

All exceptions under GATT 1994 shall apply, as appropriate, to the provisions of this Agreement.

Article 4. Developing Country Members

A developing country Member shall be free to deviate temporarily from the provisions of Article 2 to the extent and in such a manner as Article XVIII of GATT 1994, the Understanding on the Balance-of-Payments Provisions of GATT 1994, and the Declaration on Trade Measures Taken for Balance-of-Payments Purposes adopted on 28 November 1979 (BISD 26S/205-209) permit the Member to deviate from the provisions of Articles III and XI of GATT 1994.

Article 5. Notification and Transitional Arrangements

• 1 Members, within 90 days of the date of entry into force of the WTO Agreement, shall notify the Council for Trade in Goods of all TRIMs they are applying that are not in conformity with the provisions of this Agreement. Such TRIMs of general or specific application shall be notified, along with their principal features.30

• 2 Each Member shall eliminate all TRIMs which are notified under paragraph 1 within two years of the date of entry into force of the WTO Agreement in the case of a developed country Member, within five years in the case of a developing country Member, and within seven years in the case of a least-developed country Member.

• 3 On request, the Council for Trade in Goods may extend the transition period for the elimination of TRIMs notified under paragraph 1 for a developing country Member, including a least-developed country Member, which demonstrates particular difficulties in implementing the provisions of this Agreement. In considering such a request, the Council for Trade in Goods shall take into account the individual development, financial and trade needs of the Member in question.

• 4 During the transition period, a Member shall not modify the terms of any TRIM which it notifies under paragraph 1 from those prevailing at the date of entry into force of the WTO Agreement so as to increase the degree of inconsistency with the provisions of Article 2. TRIMs introduced less than 180 days before the date of entry into force of the WTO Agreement shall not benefit from the transitional arrangements provided in paragraph 2.

• 5 Notwithstanding the provisions of Article 2, a Member, in order not to disadvantage established enterprises which are subject to a TRIM notified under paragraph 1, may apply during the transition period the same TRIM to a new investment (i) where the products of such investment are like products to those of the established enterprises, and (ii) where necessary to avoid distorting the conditions of competition between the new investment and the established enterprises. Any TRIM so applied to a new investment shall be notified to the Council for Trade in Goods. The terms of such a TRIM shall be equivalent in their competitive effect to those applicable to the established enterprises, and it shall be terminated at the same time.

Article 6. Transparency

• 1 Members reaffirm, with respect to TRIMs, their commitment to obligations on transparency and notification in Article X of GATT 1994, in the undertaking on "Notification" contained in the Understanding Regarding Notification, Consultation, Dispute Settlement and Surveillance adopted on 28 November 1979 and in the Ministerial Decision on Notification Procedures adopted on 15 April 1994.

• 2 Each Member shall notify the Secretariat of the publications in which TRIMs may be found, including those applied by regional and local governments and authorities within their territories.

• 3 Each Member shall accord sympathetic consideration to requests for information, and afford adequate opportunity for consultation, on any matter arising from this Agreement raised by another Member. In conformity with Article X of GATT 1994 no Member is required to disclose information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private.

Article 7. Committee on Trade-Related Investment Measures

• 1 A Committee on Trade-Related Investment Measures (referred to in this Agreement as the "Committee") is hereby established, and shall be open to all Members. The Committee shall elect its own Chairman and Vice-Chairman, and shall meet not less than once a year and otherwise at the request of any Member.

• 2 The Committee shall carry out responsibilities assigned to it by the Council for Trade in Goods and shall afford Members the opportunity to consult on any matters relating to the operation and implementation of this Agreement.

• 3 The Committee shall monitor the operation and implementation of this Agreement and shall report thereon annually to the Council for Trade in Goods.

Article 8. Consultation and Dispute Settlement

The provisions of Articles XXII and XXIII of GATT 1994, as elaborated and applied by the Dispute Settlement Understanding, shall apply to consultations and the settlement of disputes under this Agreement.

Article 9. Review by the Council for Trade in Goods

Not later than five years after the date of entry into force of the WTO Agreement, the Council for Trade in Goods shall review the operation of this Agreement and, as appropriate, propose to the Ministerial Conference amendments to its text. In the course of this review, the Council for Trade in Goods shall consider whether the Agreement should be complemented with provisions on investment policy and competition policy.

Annex Illustrative List

• 1. TRIMs that are inconsistent with the obligation of national treatment provided for in paragraph 4 of Article III of GATT 1994 include those which are mandatory or enforceable under domestic law or under administrative rulings, or compliance with which is necessary to obtain an advantage, and which require:

  • a) the purchase or use by an enterprise of products of domestic origin or from any domestic source, whether specified in terms of particular products, in terms of volume or value of products, or in terms of a proportion of volume or value of its local production; or

  • b) that an enterprise's purchases or use of imported products be limited to an amount related to the volume or value of local products that it exports.

• 2. TRIMs that are inconsistent with the obligation of general elimination of quantitative restrictions provided for in paragraph 1 of Article XI of GATT 1994 include those which are mandatory or enforceable under domestic law or under administrative rulings, or compliance with which is necessary to obtain an advantage, and which restrict:

  • a) the importation by an enterprise of products used in or related to its local production, generally or to an amount related to the volume or value of local production that it exports;

  • b) the importation by an enterprise of products used in or related to its local production by restricting its access to foreign exchange to an amount related to the foreign exchange inflows attributable to the enterprise; or

  • c) the exportation or sale for export by an enterprise of products, whether specified in terms of particular products, in terms of volume or value of products, or in terms of a proportion of volume or value of its local production.

Agreement on implementation of article VI of the General Agreement on Tariffs and Trade 1994

Members hereby agree as follows:

PART I

Article 1. Principles

An anti-dumping measure shall be applied only under the circumstances provided for in Article VI of GATT 1994 and pursuant to investigations initiated31and conducted in accordance with the provisions of this Agreement. The following provisions govern the application of Article VI of GATT 1994 in so far as action is taken under anti-dumping legislation or regulations.

Article 2. Determination of Dumping

• 2.1 For the purpose of this Agreement, a product is to be considered as being dumped, i.e. introduced into the commerce of another country at less than its normal value, if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country.

• 2.2 When there are no sales of the like product in the ordinary course of trade in the domestic market of the exporting country or when, because of the particular market situation or the low volume of the sales in the domestic market of the exporting country32, such sales do not permit a proper comparison, the margin of dumping shall be determined by comparison with a comparable price of the like product when exported to an appropriate third country, provided that this price is representative, or with the cost of production in the country of origin plus a reasonable amount for administrative, selling and general costs and for profits.

  • 2.2.1 Sales of the like product in the domestic market of the exporting country or sales to a third country at prices below per unit (fixed and variable) costs of production plus administrative, selling and general costs may be treated as not being in the ordinary course of trade by reason of price and may be disregarded in determining normal value only if the authorities33determine that such sales are made within an extended period of time34 in substantial quantities 35 and are at prices which do not provide for the recovery of all costs within a reasonable period of time. If prices which are below per unit costs at the time of sale are above weighted average per unit costs for the period of investigation, such prices shall be considered to provide for recovery of costs within a reasonable period of time.

    • 2.2.1.1 For the purpose of paragraph 2, costs shall normally be calculated on the basis of records kept by the exporter or producer under investigation, provided that such records are in accordance with the generally accepted accounting principles of the exporting country and reasonably reflect the costs associated with the production and sale of the product under consideration. Authorities shall consider all available evidence on the proper allocation of costs, including that which is made available by the exporter or producer in the course of the investigation provided that such allocations have been historically utilized by the exporter or producer, in particular in relation to establishing appropriate amortization and depreciation periods and allowances for capital expenditures and other development costs. Unless already reflected in the cost allocations under this sub-paragraph, costs shall be adjusted appropriately for those non-recurring items of cost which benefit future and/ or current production, or for circumstances in which costs during the period of investigation are affected by start-up operations.36

  • 2.2.2 For the purpose of paragraph 2, the amounts for administrative, selling and general costs and for profits shall be based on actual data pertaining to production and sales in the ordinary course of trade of the like product by the exporter or producer under investigation. When such amounts cannot be determined on this basis, the amounts may be determined on the basis of:

    • • i) the actual amounts incurred and realized by the exporter or producer in question in respect of production and sales in the domestic market of the country of origin of the same general category of products;

      • ii) the weighted average of the actual amounts incurred and realized by other exporters or producers subject to investigation in respect of production and sales of the like product in the domestic market of the country of origin;

      • iii) any other reasonable method, provided that the amount for profit so established shall not exceed the profit normally realized by other exporters or producers on sales of products of the same general category in the domestic market of the country of origin.

• 2.3 In cases where there is no export price or where it appears to the authorities concerned that the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or if the products are not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as the authorities may determine.

• 2.4 A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade, normally at the ex-factory level, and in respect of sales made at as nearly as possible the same time. Due allowance shall be made in each case, on its merits, for differences which affect price comparability, including differences in conditions and terms of sale, taxation, levels of trade, quantities, physical characteristics, and any other differences which are also demonstrated to affect price comparability.37In the cases referred to in paragraph 3, allowances for costs, including duties and taxes, incurred between importation and resale, and for profits accruing, should also be made. If in these cases price comparability has been affected, the authorities shall establish the normal value at a level of trade equivalent to the level of trade of the constructed export price, or shall make due allowance as warranted under this paragraph. The authorities shall indicate to the parties in question what information is necessary to ensure a fair comparison and shall not impose an unreasonable burden of proof on those parties.

  • 2.4.1 When the comparison under paragraph 4 requires a conversion of currencies, such conversion should be made using the rate of exchange on the date of sale38, provided that when a sale of foreign currency on forward markets is directly linked to the export sale involved, the rate of exchange in the forward sale shall be used. Fluctuations in exchange rates shall be ignored and in an investigation the authorities shall allow exporters at least 60 days to have adjusted their export prices to reflect sustained movements in exchange rates during the period of investigation.

  • 2.4.2 Subject to the provisions governing fair comparison in paragraph 4, the existence of margins of dumping during the investigation phase shall normally be established on the basis of a comparison of a weighted average normal value with a weighted average of prices of all comparable export transactions or by a comparison of normal value and export prices on a transaction-to-transaction basis. A normal value established on a weighted average basis may be compared to prices of individual export transactions if the authorities find a pattern of export prices which differ significantly among different purchasers, regions or time periods, and if an explanation is provided as to why such differences cannot be taken into account appropriately by the use of a weighted average-to-weighted average or transaction-to-transaction comparison.

• 2.5 In the case where products are not imported directly from the country of origin but are exported to the importing Member from an intermediate country, the price at which the products are sold from the country of export to the importing Member shall normally be compared with the comparable price in the country of export. However, comparison may be made with the price in the country of origin, if, for example, the products are merely transshipped through the country of export, or such products are not produced in the country of export, or there is no comparable price for them in the country of export.

• 2.6 Throughout this Agreement the term "like product" ("produit similaire") shall be interpreted to mean a product which is identical, i.e. alike in all respects to the product under consideration, or in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration.

• 2.7 This Article is without prejudice to the second Supplementary Provision to paragraph 1 of Article VI in Annex I to GATT 1994.

Article 3. Determination of Injury39

• 3.1 A determination of injury for purposes of Article VI of GATT 1994 shall be based on positive evidence and involve an objective examination of both (a) the volume of the dumped imports and the effect of the dumped imports on prices in the domestic market for like products, and (b) the consequent impact of these imports on domestic producers of such products.

• 3.2 With regard to the volume of the dumped imports, the investigating authorities shall consider whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consumption in the importing Member. With regard to the effect of the dumped imports on prices, the investigating authorities shall consider whether there has been a significant price undercutting by the dumped imports as compared with the price of a like product of the importing Member, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which otherwise would have occurred, to a significant degree. No one or several of these factors can necessarily give decisive guidance.

• 3.3 Where imports of a product from more than one country are simultaneously subject to anti-dumping investigations, the investigating authorities may cumulatively assess the effects of such imports only if they determine that (a) the margin of dumping established in relation to the imports from each country is more than de minimis as defined in paragraph 8 of Article 5 and the volume of imports from each country is not negligible and (b) a cumulative assessment of the effects of the imports is appropriate in light of the conditions of competition between the imported products and the conditions of competition between the imported products and the like domestic product.

• 3.4 The examination of the impact of the dumped imports on the domestic industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including actual and potential decline in sales, profits, output, market share, productivity, return on investments, or utilization of capacity; factors affecting domestic prices; the magnitude of the margin of dumping; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor can one or several of these factors necessarily give decisive guidance.

• 3.5 It must be demonstrated that the dumped imports are, through the effects of dumping, as set forth in paragraphs 2 and 4, causing injury within the meaning of this Agreement. The demonstration of a causal relationship between the dumped imports and the injury to the domestic industry shall be based on an examination of all relevant evidence before the authorities. The authorities shall also examine any known factors other than the dumped imports which at the same time are injuring the domestic industry, and the injuries caused by these other factors must not be attributed to the dumped imports. Factors which may be relevant in this respect include, inter alia, the volume and prices of imports not sold at dumping prices, contraction in demand or changes in the patterns of consumption, trade restrictive practices of and competition between the foreign and domestic producers, developments in technology and the export performance and productivity of the domestic industry.

• 3.6 The effect of the dumped imports shall be assessed in relation to the domestic production of the like product when available data permit the separate identification of that production on the basis of such criteria as the production process, producers' sales and profits. If such separate identification of that production is not possible, the effects of the dumped imports shall be assessed by the examination of the production of the narrowest group or range of products, which includes the like product, for which the necessary information can be provided.

• 3.7 A determination of a threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility. The change in circumstances which would create a situation in which the dumping would cause injury must be clearly foreseen and imminent.40 In making a determination regarding the existence of a threat of material injury, the authorities should consider, inter alia, such factors as:

  • i) a significant rate of increase of dumped imports into the domestic market indicating the likelihood of substantially increased importation;

  • ii) sufficient freely disposable, or an imminent, substantial increase in, capacity of the exporter indicating the likelihood of substantially increased dumped exports to the importing Member's market, taking into account the availability of other export markets to absorb any additional exports;

  • iii) whether imports are entering at prices that will have a significant depressing or suppressing effect on domestic prices, and would likely increase demand for further imports; and

  • iv) inventories of the product being investigated.

  No one of these factors by itself can necessarily give decisive guidance but the totality of the factors considered must lead to the conclusion that further dumped exports are imminent and that, unless protective action is taken, material injury would occur.

• 3.8 8 With respect to cases where injury is threatened by dumped imports, the application of anti-dumping measures shall be considered and decided with special care.

Article 4. Definition of Domestic Industry

• 4.1 For the purposes of this Agreement, the term "domestic industry" shall be interpreted as referring to the domestic producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion of the total domestic production of those products, except that:

  • i) when producers are related41to the exporters or importers or are themselves importers of the allegedly dumped product, the term "domestic industry" may be interpreted as referring to the rest of the producers;

  • ii) in exceptional circumstances the territory of a Member may, for the production in question, be divided into two or more competitive markets and the producers within each market may be regarded as a separate industry if (a) the producers within such market sell all or almost all of their production of the product in question in that market, and (b) the demand in that market is not to any substantial degree supplied by producers of the product in question located elsewhere in the territory. In such circumstances, injury may be found to exist even where a major portion of the total domestic industry is not injured, provided there is a concentration of dumped imports into such an isolated market and provided further that the dumped imports are causing injury to the producers of all or almost all of the production within such market.

• 4.2 When the domestic industry has been interpreted as referring to the producers in a certain area, i.e. a market as defined in paragraph l(ii), anti-dumping duties shall be levied 42only on the products in question consigned for final consumption to that area. When the constitutional law of the importing Member does not permit the levying of antidumping duties on such a basis, the importing Member may levy the anti-dumping duties without limitation only if (a) the exporters shall have been given an opportunity to cease exporting at dumped prices to the area concerned or otherwise give assurances pursuant to Article 8 and adequate assurances in this regard have not been promptly given, and (b) such duties cannot be levied only on products of specific producers which supply the area in question.

• 4.3 Where two or more countries have reached under the provisions of paragraph 8(a) of Article XXIV of GATT 1994 such a level of integration that they have the characteristics of a single, unified market, the industry in the entire area of integration shall be taken to be the domestic industry referred to in paragraph 1.

• 4.4 The provisions of paragraph 6 of Article 3 shall be applicable to this Article.

Article 5. Initiation and Subsequent Investigation

• 5.1 Except as provided for in paragraph 6, an investigation to determine the existence, degree and effect of any alleged dumping shall be initiated upon a written application by or on behalf of the domestic industry.

• 5.2 An application under paragraph 1 shall include evidence of (a) dumping, (b) injury within the meaning of Article VI of GATT 1994 as interpreted by this Agreement and (c) a causal link between the dumped imports and the alleged injury. Simple assertion, unsubstantiated by relevant evidence, cannot be considered sufficient to meet the requirements of this paragraph. The application shall contain such information as is reasonably available to the applicant on the following:

  • i) the identity of the applicant and a description of the volume and value of the domestic production of the like product by the applicant. Where a written application is made on behalf of the domestic industry, the application shall identify the industry on behalf of which the application is made by a list of all known domestic producers of the like product (or associations of domestic producers of the like product) and, to the extent possible, a description of the volume and value of domestic production of the like product accounted for by such producers;

  • ii) a complete description of the allegedly dumped product, the names of the country or countries of origin or export in question, the identity of each known exporter or foreign producer and a list of known persons importing the product in question;

  • iii) information on prices at which the product in question is sold when destined for consumption in the domestic markets of the country or countries of origin or export (or, where appropriate, information on the prices at which the product is sold from the country or countries of origin or export to a third country or countries, or on the constructed value of the product) and information on export prices or, where appropriate, on the prices at which the product is first resold to an independent buyer in the territory of the importing Member;

  • iv) information on the evolution of the volume of the allegedly dumped imports, the effect of these imports on prices of the like product in the domestic market and the consequent impact of the imports on the domestic industry, as demonstrated by relevant factors and indices having a bearing on the state of the domestic industry, such as those listed in paragraphs 2 and 4 of Article 3.

• 5.3 The authorities shall examine the accuracy and adequacy of the evidence provided in the application to determine whether there is sufficient evidence to justify the initiation of an investigation.

• 5.4 An investigation shall not be initiated pursuant to paragraph 1 unless the authorities have determined, on the basis of an examination of the degree of support for, or opposition to, the application expressed43 by domestic producers of the like product, that the application has been made by or on behalf of the domestic industry.44The application shall be considered to have been made "by or on behalf of the domestic industry" if it is supported by those domestic producers whose collective output constitutes more than 50 per cent of the total production of the like product produced by that portion of the domestic industry expressing either support for or opposition to the application. However, no investigation shall be initiated when domestic producers expressly supporting the application account for less than 25 per cent of total production of the like product produced by the domestic industry.

• 5.5 The authorities shall avoid, unless a decision has been made to initiate an investigation, any publicizing of the application for the initiation of an investigation. However, after receipt of a properly documented application and before proceeding to initiate an investigation, the authorities shall notify the government of the exporting Member concerned.

• 5.6 If, in special circumstances, the authorities concerned decide to initiate an investigation without having received a written application by or on behalf of a domestic industry for the initiation of such investigation, they shall proceed only if they have sufficient evidence of dumping, injury and a causal link, as described in paragraph 2, to justify the initiation of an investigation.

• 5.7 The evidence of both dumping and injury shall be considered simultaneously (a) in the decision whether or not to initiate an investigation, and (b) thereafter, during the course of the investigation, starting on a date not later than the earliest date on which in accordance with the provisions of this Agreement provisional measures may be applied.

• 5.8 An application under paragraph 1 shall be rejected and an investigation shall be terminated promptly as soon as the authorities concerned are satisfied that there is not sufficient evidence of either dumping or of injury to justify proceeding with the case. There shall be immediate termination in cases where the authorities determine that the margin of dumping is de minimis, or that the volume of dumped imports, actual or potential, or the injury, is negligible. The margin of dumping shall be considered to be de minimis if this margin is less than 2 per cent, expressed as a percentage of the export price. The volume of dumped imports shall normally be regarded as negligible if the volume of dumped imports from a particular country is found to account for less than 3 per cent of imports of the like product in the importing Member, unless countries which individually account for less than 3 per cent of the imports of the like product in the importing Member collectively account for more than 7 per cent of imports of the like product in the importing Member.

• 5.9 An anti-dumping proceeding shall not hinder the procedures of customs clearance.

• 5.10 Investigations shall, except in special circumstances, be concluded within one year, and in no case more than 18 months, after their initiation.

Article 6. Evidence

• 6.1 All interested parties in an anti-dumping investigation shall be given notice of the information which the authorities require and ample opportunity to present in writing all evidence which they consider relevant in respect of the investigation in question.

  • 6.1.1 Exporters or foreign producers receiving questionnaires used in an anti-dumping investigation shall be given at least 30 days for reply.45Due consideration should be given to any request for an extension of the 30-day period and, upon cause shown, such an extension should be granted whenever practicable.

  • 6.1.2 Subject to the requirement to protect confidential information, evidence presented in writing by one interested party shall be made available promptly to other interested parties participating in the investigation.

  • 6.1.3 As soon as an investigation has been initiated, the authorities shall provide the full text of the written application received under paragraph 1 of Article 5 to the known exporters46and to the authorities of the exporting Member and shall make it available, upon request, to other interested parties involved. Due regard shall be paid to the requirement for the protection of confidential information, as provided for in paragraph 5.

• 6.2 Throughout the anti-dumping investigation all interested parties shall have a full opportunity for the defence of their interests. To this end, the authorities shall, on request, provide opportunities for all interested parties to meet those parties with adverse interests, so that opposing views may be presented and rebuttal arguments offered. Provision of such opportunities must take account of the need to preserve confidentiality and of the convenience to the parties. There shall be no obligation on any party to attend a meeting, and failure to do so shall not be prejudicial to that party's case. Interested parties shall also have the right, on justification, to present other information orally.

• 6.3 Oral information provided under paragraph 2 shall be taken into account by the authorities only in so far as it is subsequently reproduced in writing and made available to other interested parties, as provided for in subparagraph 1.2.

• 6.4 The authorities shall whenever practicable provide timely opportunities for all interested parties to see all information that is relevant to the presentation of their cases, that is not confidential as defined in paragraph 5, and that is used by the authorities in an anti-dumping investigation, and to prepare presentations on the basis of this information.

• 6.5 Any information which is by nature confidential (for example, because its disclosure would be of significant competitive advantage to a competitor or because its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom that person acquired the information), or which is provided on a confidential basis by parties to an investigation shall, upon good cause shown, be treated as such by the authorities. Such information shall not be disclosed without specific permission of the party submitting it.47

  • 6.5.1 The authorities shall require interested parties providing confidential information to furnish non-confidential summaries thereof. These summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. In exceptional circumstances, such parties may indicate that such information is not susceptible of summary. In such exceptional circumstances, a statement of the reasons why summarization is not possible must be provided.

  • 6.5.2 If the authorities find that a request for confidentiality is not warranted and if the supplier of the information is either unwilling to make the information public or to authorize its disclosure in generalized or summary form, the authorities may disregard such information unless it can be demonstrated to their satisfaction from appropriate sources that the information is correct.48

• 6.6 Except in circumstances provided for in paragraph 8, the authorities shall during the course of an investigation satisfy themselves as to the accuracy of the information supplied by interested parties upon which their findings are based.

• 6.7 In order to verify information provided or to obtain further details, the authorities may carry out investigations in the territory of other Members as required, provided they obtain the agreement of the firms concerned and notify the representatives of the government of the Member in question, and unless that Member objects to the investigation. The procedures described in Annex I shall apply to investigations carried out in the territory of other Members. Subject to the requirement to protect confidential information, the authorities shall make the results of any such investigations available, or shall provide disclosure thereof pursuant to paragraph 9, to the firms to which they pertain and may make such results available to the applicants.

• 6.8 In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determinations, affirmative or negative, may be made on the basis of the facts available. The provisions of Annex II shall be observed in the application of this paragraph.

• 6.9 The authorities shall, before a final determination is made, inform all interested parties of the essential facts under consideration which form the basis for the decision whether to apply definitive measures. Such disclosure should take place in sufficient time for the parties to defend their interests.

• 6.10 The authorities shall, as a rule, determine an individual margin of dumping for each known exporter or producer concerned of the product under investigation. In cases where the number of exporters, producers, importers or types of products involved is so large as to make such a determination impracticable, the authorities may limit their examination either to a reasonable number of interested parties or products by using samples which are statistically valid on the basis of information available to the authorities at the time of the selection, or to the largest percentage of the volume of the exports from the country in question which can reasonably be investigated.

  • 6.10.1 Any selection of exporters, producers, importers or types of products made under this paragraph shall preferably be chosen in consultation with and with the consent of the exporters, producers or importers concerned.

  • 6.10.2 In cases where the authorities have limited their examination, as provided for in this paragraph, they shall nevertheless determine an individual margin of dumping for any exporter or producer not initially selected who submits the necessary information in time for that information to be considered during the course of the investigation, except where the number of exporters or producers is so large that individual examinations would be unduly burdensome to the authorities and prevent the timely completion of the investigation. Voluntary responses shall not be discouraged.

• 6.11 For the purposes of this Agreement, "interested parties" shall include:

  • i) an exporter or foreign producer or the importer of a product subject to investigation, or a trade or business association a majority of the members of which are producers, exporters or importers of such product;

  • ii) the government of the exporting Member; and

  • iii) a producer of the like product in the importing Member or a trade and business association a majority of the members of which produce the like product in the territory of the importing Member.

  This list shall not preclude Members from allowing domestic or foreign parties other than those mentioned above to be included as interested parties.

• 6.12 The authorities shall provide opportunities for industrial users of the product under investigation, and for representative consumer organizations in cases where the product is commonly sold at the retail level, to provide information which is relevant to the investigation regarding dumping, injury and causality.

• 6.13 The authorities shall take due account of any difficulties experienced by interested parties, in particular small companies, in supplying information requested, and shall provide any assistance practicable.

• 6.14 The procedures set out above are not intended to prevent the authorities of a Member from proceeding expeditiously with regard to initiating an investigation, reaching preliminary or final determinations, whether affirmative or negative, or from applying provisional or final measures, in accordance with relevant provisions of this Agreement.

Article 7. Provisional Measures

• 7.1 Provisional measures may be applied only if:

  • i) an investigation has been initiated in accordance with the provisions of Article 5, a public notice has been given to that effect and interested parties have been given adequate opportunities to submit information and make comments;

  • ii) a preliminary affirmative determination has been made of dumping and consequent injury to a domestic industry; and

  • iii) the authorities concerned judge such measures necessary to prevent injury being caused during the investigation.

• 7.2 Provisional measures may take the form of a provisional duty or, preferably, a security - by cash deposit or bond - equal to the amount of the anti-dumping duty provisionally estimated, being not greater than the provisionally estimated margin of dumping. Withholding of appraisement is an appropriate provisional measure, provided that the normal duty and the estimated amount of the anti-dumping duty be indicated and as long as the withholding of appraisement is subject to the same conditions as other provisional measures.

• 7.3 Provisional measures shall not be applied sooner than 60 days from the date of initiation of the investigation.

• 7.4 The application of provisional measures shall be limited to as short a period as possible, not exceeding four months or, on decision of the authorities concerned, upon request by exporters representing a significant percentage or the trade involved, to a period not exceeding six months. When authorities, in the course of an investigation, examine whether a duty lower than the margin of dumping would be sufficient to remove injury, these periods may be six and nine months, respectively.

• 7.5 The relevant provisions of Article 9 shall be followed in the application of provisional measures.

Article 8. Price Undertakings

• 8.1 Proceedings may 49be suspended or terminated without the imposition of provisional measures or anti-dumping duties upon receipt of satisfactory voluntary undertakings from any exporter to revise its prices or to cease exports to the area in question at dumped prices so that the authorities are satisfied that the injurious effect of the dumping is eliminated. Price increases under such undertakings shall not be higher than necessary to eliminate the margin of dumping. It is desirable that the price increases be less than the margin of dumping if such increases would be adequate to remove the injury to the domestic industry.

• 8.2 Price undertakings shall not be sought or accepted from exporters unless the authorities of the importing Member have made a preliminary affirmative determination of dumping and injury caused by such dumping.

• 8.3 Undertakings offered need not be accepted if the authorities consider their acceptance impractical, for example, if the number of actual or potential exporters is too great, or for other reasons, including reasons of general policy. Should the case arise and where practicable, the authorities shall provide to the exporter the reasons which have led them to consider acceptance of an undertaking as inappropriate, and shall, to the extent possible, give the exporter an opportunity to make comments thereon.

• 8.4 If an undertaking is accepted, the investigation of dumping and injury shall nevertheless be completed if the exporter so desires or the authorities so decide. In such a case, if a negative determination of dumping or injury is made, the undertaking shall automatically lapse, except in cases where such a determination is due in large part to the existence of a price undertaking. In such cases, the authorities may require that an undertaking be maintained for a reasonable period consistent with the provisions of this Agreement. In the event that an affirmative determination of dumping and injury is made, the undertaking shall continue consistent with its terms and the provisions of this Agreement.

• 8.5 Price undertakings may be suggested by the authorities of the importing Member, but no exporter shall be forced to enter into such undertakings. The fact that exporters do not offer such undertakings, or do not accept an invitation to do so, shall in no way prejudice the consideration of the case. However, the authorities are free to determine that a threat of injury is more likely to be realized if the dumped imports continue.

• 8.6 Authorities of an importing Member may require any exporter from whom an undertaking has been accepted to provide periodically information relevant to the fulfilment of such an undertaking and to permit verification of pertinent data. In case of violation of an undertaking, the authorities of the importing Member may take, under this Agreement in conformity with its provisions, expeditious actions which may constitute immediate application of provisional measures using the best information available. In such cases, definitive duties may be levied in accordance with this Agreement on products entered for consumption not more than 90 days before the application of such provisional measures, except that any such retroactive assessment shall not apply to imports entered before the violation of the undertaking.

Article 9. Imposition and Collection of Anti-Dumping Duties

• 9.1 The decision whether or not to impose an anti-dumping duty in cases where all requirements for the imposition have been fulfilled, and the decision whether the amount of the anti-dumping duty to be imposed shall be the full margin of dumping or less, are decisions to be made by the authorities of the importing Member. It is desirable that the imposition be permissive in the territory of all Members, and that the duty be less than the margin if such lesser duty would be adequate to remove the injury to the domestic industry.

• 9.2 When an anti-dumping duty is imposed in respect of any product, such anti-dumping duty shall be collected in the appropriate amounts in each case, on a non-discriminatory basis on imports of such product from all sources found to be dumped and causing injury, except as to imports from those sources from which price undertakings under the terms of this Agreement have been accepted. The authorities shall name the supplier or suppliers of the product concerned. If, however, several suppliers from the same country are involved, and it is impracticable to name all these suppliers, the authorities may name the supplying country concerned. If several suppliers from more than one country are involved, the authorities may name either all the suppliers involved, or, if this is impracticable, all the supplying countries involved.

• 9.3 The amount of the anti-dumping duty shall not exceed the margin of dumping as established under Article 2.

  • 9.3.1 When the amount of the anti-dumping duty is assessed on a retrospective basis, the determination of the final liability for payment of anti-dumping duties shall take place as soon as possible, normally within 12 months, and in no case more than 18 months, after the date on which a request for a final assessment of the amount of the anti-dumping duty has been made.50Any refund shall be made promptly and normally in not more than 90 days following the determination of final liability made pursuant to this sub-paragraph. In any case, where a refund is not made within 90 days, the authorities shall provide an explanation if so requested.

  • 9.3.2 When the amount of the anti-dumping duty is assessed on a prospective basis, provision shall be made for a prompt refund, upon request, of any duty paid in excess of the margin of dumping. A refund of any such duty paid in excess of the actual margin of dumping shall normally take place within 12 months, and in no case more than 18 months, after the date on which a request for a refund, duly supported by evidence, has been made by an importer of the product subject to the anti-dumping duty. The refund authorized should normally be made within 90 days of the above-noted decision.

  • 9.3.3 In determining whether and to what extent a reimbursement should be made when the export price is constructed in accordance with paragraph 3 of Article 2, authorities should take account of any change in normal value, any change in costs incurred between importation and resale, and any movement in the resale price which is duly reflected in subsequent selling prices, and should calculate the export price with no deduction for the amount of anti-dumping duties paid when conclusive evidence of the above is provided.

• 9.4 When the authorities have limited their examination in accordance with the second sentence of paragraph 10 of Article 6, any antidumping duty applied to imports from exporters or producers not included in the examination shall not exceed:

  • i) the weighted average margin of dumping established with respect to the selected exporters or producers or,

  • ii) where the liability for payment of anti-dumping duties is calculated on the basis of a prospective normal value, the difference between the weighted average normal value of the selected exporters or producers and the export prices of exporters or producers not individually examined,

  provided that the authorities shall disregard for the purpose of this paragraph any zero and de minimis margins and margins established under the circumstances referred to in paragraph 8 of Article 6. The authorities shall apply individual duties or normal values to imports from any exporter or producer not included in the examination who has provided the necessary information during the course of the investigation, as provided for in subparagraph 10.2 of Article 6.

• 9.5 If a product is subject to anti-dumping duties in an importing Member, the authorities shall promptly carry out a review for the purpose of determining individual margins of dumping for any exporters or producers in the exporting country in question who have not exported the product to the importing Member during the period of investigation, provided that these exporters or producers can show that they are not related to any of the exporters or producers in the exporting country who are subject to the anti-dumping duties on the product. Such a review shall be initiated and carried out on an accelerated basis, compared to normal duty assessment and review proceedings in the importing Member. No anti-dumping duties shall be levied on imports from such exporters or producers while the review is being carried out. The authorities may, however, withhold appraisement and/or request guarantees to ensure that, should such a review result in a determination of dumping in respect of such producers or exporters, anti-dumping duties can be levied retroactively to the date of the initiation of the review.

Article 10. Retroactivity

• 10.1 Provisional measures and anti-dumping duties shall only be applied to products which enter for consumption after the time when the decision taken under paragraph 1 of Article 7 and paragraph 1 of Article 9, respectively, enters into force, subject to the exceptions set out in this Article.

• 10.2 Where a final determination of injury (but not of a threat thereof or of a material retardation of the establishment of an industry) is made or, in the case of a final determination of a threat of injury, where the effect of the dumped imports would, in the absence of the provisional measures, have led to a determination of injury, anti-dumping duties may be levied retroactively for the period for which provisional measures, if any, have been applied.

• 10.3 If the definitive anti-dumping duty is higher than the provisional duty paid or payable, or the amount estimated for the purpose of the security, the difference shall not be collected. If the definitive duty is lower than the provisional duty paid or payable, or the amount estimated for the purpose of the security, the difference shall be reimbursed or the duty recalculated, as the case may be.

• 10.4 Except as provided in paragraph 2, where a determination of threat of injury or material retardation is made (but no injury has yet occurred) a definitive anti-dumping duty may be imposed only from the date of the determination of threat of injury or material retardation, and any cash deposit made during the period of the application of provisional measures shall be refunded and any bonds released in an expeditious manner.

• 10.5 Where a final determination is negative, any cash deposit made during the period of the application of provisional measures shall be refunded and any bonds released in an expeditious manner.

• 10.6 A definitive anti-dumping duty may be levied on products which were entered for consumption not more than 90 days prior to the date of application of provisional measures, when the authorities determine for the dumped product in question that:

  • i) there is a history of dumping which caused injury or that the importer was, or should have been, aware that the exporter practises dumping and that such dumping would cause injury, and

  • ii) the injury is caused by massive dumped imports of a product in a relatively short time which in light of the timing and the volume of the dumped imports and other circumstances (such as a rapid build-up of inventories of the imported product) is likely to seriously undermine the remedial effect of the definitive anti-dumping duty to be applied, provided that the importers concerned have been given an opportunity to comment.

• 10.7 The authorities may, after initiating an investigation, take such measures as the withholding of appraisement or assessment as may be necessary to collect anti-dumping duties retroactively, as provided for in paragraph 6, once they have sufficient evidence that the conditions set forth in that paragraph are satisfied.

• 10.8 No duties shall be levied retroactively pursuant to paragraph 6 on products entered for consumption prior to the date of initiation of the investigation.

Article 11. Duration and Review of Anti-Dumping Duties and Price Undertakings

• 11.1 An anti-dumping duty shall remain in force only as long as and to the extent necessary to counteract dumping which is causing injury.

• 11.2 The authorities shall review the need for the continued imposition of the duty, where warranted, on their own initiative or, provided that a reasonable period of time has elapsed since the imposition of the definitive anti-dumping duty, upon request by any interested party which submits positive information substantiating the need for a review.51 Interested parties shall have the right to request the authorities to examine whether the continued imposition of the duty is necessary to offset dumping, whether the injury would be likely to continue or recur if the duty were removed or varied, or both. If, as a result of the review under this paragraph, the authorities determine that the anti-dumping duty is no longer warranted, it shall be terminated immediately.

• 11.3 Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti-dumping duty shall be terminated on a date not later than five years from its imposition (or from the date of the most recent review under paragraph 2 if that review has covered both dumping and injury, or under this paragraph), unless the authorities determine, in a review initiated before that date on their own initiative or upon a duly substantiated request made by or on behalf of the domestic industry within a reasonable period of time prior to that date, that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury.52The duty may remain in force pending the outcome of such a review.

• 11.4 The provisions of Article 6 regarding evidence and procedure shall apply to any review carried out under this Article. Any such review shall be carried out expeditiously and shall normally be concluded within 12 months of the date of initiation of the review.

• 11.5 The provisions of this Article shall apply mutatis mutandis to price undertakings accepted under Article 8.

Article 12. Public Notice and Explanation of Determinations

• 12.1 When the authorities are satisfied that there is sufficient evidence to justify the initiation of an anti-dumping investigation pursuant to Article 5, the Member or Members the products of which are subject to such investigation and other interested parties known to the investigating authorities to have an interest therein shall be notified and a public notice shall be given.

  • 12.1.1 A public notice of the initiation of an investigation shall contain, or otherwise make available through a separate report53adequate information on the following:

    • i) the name of the exporting country or countries and the product involved;

    • ii) the date of initiation of the investigation;

    • iii) the basis on which dumping is alleged in the application;

    • iv) a summary of the factors on which the allegation of injury is based;

    • v) the address to which representations by interested parties should be directed;

    • vi) the time-limits allowed to interested parties for making their views known.

• 12.2 Public notice shall be given of any preliminary or final determination, whether affirmative or negative, of any decision to accept an undertaking pursuant to Article 8, of the termination of such an undertaking, and of the termination of a definitive anti-dumping duty. Each such notice shall set forth, or otherwise make available through a separate report, in sufficient detail the findings and conclusions reached on all issues of fact and law considered material by the investigating authorities. All such notices and reports shall be forwarded to the Member or Members the products of which are subject to such determination or undertaking and to other interested parties known to have an interest therein.

  • 12.2.1 A public notice of the imposition of provisional measures shall set forth, or otherwise make available through a separate report, sufficiently detailed explanations for the preliminary determinations on dumping and injury and shall refer to the matters of fact and law which have led to arguments being accepted or rejected. Such a notice or report shall, due regard being paid to the requirement for the protection of confidential information, contain in particular:

    • i) the names of the suppliers, or when this is impracticable, the supplying countries involved;

    • ii) a description of the product which is sufficient for customs purposes;

    • iii) the margins of dumping established and a full explanation of the reasons for the methodology used in the establishment and comparison of the export price and the normal value under Article 2;

    • iv) considerations relevant to the injury determination as set out in Article 3;

    • v) the main reasons leading to the determination.

  • 12.2.2 A public notice of conclusion or suspension of an investigation in the case of an affirmative determination providing for the imposition of a definitive duty or the acceptance of a price undertaking shall contain, or otherwise make available through a separate report, all relevant information on the matters of fact and law and reasons which have led to the imposition of final measures or the acceptance of a price undertaking, due regard being paid to the requirement for the protection of confidential information. In particular, the notice or report shall contain the information described in subparagraph 2.1, as well as the reasons for the acceptance or rejection of relevant arguments or claims made by the exporters and importers, and the basis for any decision made under subparagraph 10.2 of Article 6.

  • 12.2.3 A public notice of the termination or suspension of an investigation following the acceptance of an undertaking pursuant to Article 8 shall include, or otherwise make available through a separate report, the non-confidential part of this undertaking.

• 12.3 The provisions of this Article shall apply mutatis mutandis to the initiation and completion of reviews pursuant to Article 11 and to decisions under Article 10 to apply duties retroactively.

Article 13. Judicial Review

Each Member whose national legislation contains provisions on antidumping measures shall maintain judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review of administrative actions relating to final determinations and reviews of determinations within the meaning of Article 11. Such tribunals or procedures shall be independent of the authorities responsible for the determination or review in question.

Article 14. Anti-Dumping Action on Behalf of a Third Country

• 14.1 An application for anti-dumping action on behalf of a third country shall be made by the authorities of the third country requesting action.

• 14.2 Such an application shall be supported by price information to show that the imports are being dumped and by detailed information to show that the alleged dumping is causing injury to the domestic industry concerned in the third country. The government of the third country shall afford all assistance to the authorities of the importing country to obtain any further information which the latter may require.

• 14.3 In considering such an application, the authorities of the importing country shall consider the effects of the alleged dumping on the industry concerned as a whole in the third country; that is to say, the injury shall not be assessed in relation only to the effect of the alleged dumping on the industry's exports to the importing country or even on the industry's total exports.

• 14.4 The decision whether or not to proceed with a case shall rest with the importing country. If the importing country decides that it is prepared to take action, the initiation of the approach to the Council for Trade in Goods seeking its approval for such action shall rest with the importing country.

Article 15. Developing Country Members

It is recognized that special regard must be given by developed country Members to the special situation of developing country Members when considering the application of anti-dumping measures under this Agreement. Possibilities of constructive remedies provided for by this Agreement shall be explored before applying anti-dumping duties where they would affect the essential interests of developing country Members.

PART II

Article 16. Committee on Anti-Dumping Practices

• 16.1 There is hereby established a Committee on Anti-Dumping Practices (referred to in this Agreement as the "Committee") composed of representatives from each of the Members. The Committee shall elect its own Chairman and shall meet not less than twice a year and otherwise as envisaged by relevant provisions of this Agreement at the request of any Member. The Committee shall carry out responsibilities as assigned to it under this Agreement or by the Members and it shall afford Members the opportunity of consulting on any matters relating to the operation of the Agreement or the furtherance of its objectives. The WTO Secretariat shall act as the secretariat to the Committee.

• 16.2 The Committee may set up subsidiary bodies as appropriate.

• 16.3 In carrying out their functions, the Committee and any subsidiary bodies may consult with and seek information from any source they deem appropriate. However, before the Committee or a subsidiary body seeks such information from a source within the jurisdiction of a Member, it shall inform the Member involved. It shall obtain the consent of the Member and any firm to be consulted.

• 16.4 Members shall report without delay to the Committee all preliminary or final anti-dumping actions taken. Such reports shall be available in the Secretariat for inspection by other Members. Members shall also submit, on a semi-annual basis, reports of any anti-dumping actions taken within the preceding six months. The semi-annual reports shall be submitted on an agreed standard form.

• 16.5 Each Member shall notify the Committee (a) which of its authorities are competent to initiate and conduct investigations referred to in Article 5 and (b) its domestic procedures governing the initiation and conduct of such investigations.

Article 17. Consultation and Dispute Settlement

• 17.1 Except as otherwise provided herein, the Dispute Settlement Understanding is applicable to consultations and the settlement of disputes under this Agreement.

• 17.2 Each Member shall afford sympathetic consideration to, and shall afford adequate opportunity for consultation regarding, representations made by another Member with respect to any matter affecting the operation of this Agreement.

• 17.3 If any Member considers that any benefit accruing to it, directly or indirectly, under this Agreement is being nullified or impaired, or that the achievement of any objective is being impeded, by another Member or Members, it may, with a view to reaching a mutually satisfactory resolution of the matter, request in writing consultations with the Member or Members in question. Each Member shall afford sympathetic consideration to any request from another Member for consultation.

• 17.4 If the Member that requested consultations considers that the consultations pursuant to paragraph 3 have failed to achieve a mutually agreed solution, and if final action has been taken by the administering authorities of the importing Member to levy definitive anti-dumping duties or to accept price undertakings, it may refer the matter to the Dispute Settlement Body ("DSB"). When a provisional measure has a significant impact and the Member that requested consultations considers that the measure was taken contrary to the provisions of paragraph 1 of Article 7, that Member may also refer such matter to the DSB.

• 17.5 The DSB shall, at the request of the complaining party, establish a panel to examine the matter based upon:

  • i) a written statement of the Member making the request indicating how a benefit accruing to it, directly or indirectly, under this Agreement has been nullified or impaired, or that the achieving of the objectives of the Agreement is being impeded, and

  • ii) the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member.

• 17.6 In examining the matter referred to in paragraph 5:

  • i) in its assessment of the facts of the matter, the panel shall determine whether the authorities' establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned;

  • ii) the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations.

• 17.7 Confidential information provided to the panel shall not be disclosed without formal authorization from the person, body or authority providing such information. Where such information is requested from the panel but release of such information by the panel is not authorized, a non-confidential summary of the information, authorized by the person, body or authority providing the information, shall be provided.

PART III

Article 18. Final Provisions

• 18.1 No specific action against dumping of exports from another Member can be taken except in accordance with the provisions of GATT 1994, as interpreted by this Agreement.54

• 18.2 Reservations may not be entered in respect of any of the provisions of this Agreement without the consent of the other Members.

• 18.3 Subject to subparagraphs 3.1 and 3.2, the provisions of this Agreement shall apply to investigations, and reviews of existing measures, initiated pursuant to applications which have been made on or after the date of entry into force for a Member of the WTO Agreement.

  • 18.3.1 With respect to the calculation of margins of dumping in refund procedures under paragraph 3 of Article 9, the rules used in the most recent determination or review of dumping shall apply.

  • 18.3.2 For the purposes of paragraph 3 of Article 11, existing anti-dumping measures shall be deemed to be imposed on a date not later than the date of entry into force for a Member of the WTO Agreement, except in cases in which the domestic legislation of a Member in force on that date already included a clause of the type provided for in that paragraph.

• 18.4 Each Member shall take all necessary steps, of a general or particular character, to ensure, not later than the date of entry into force of the WTO Agreement for it, the conformity of its laws, regulations and administrative procedures with the provisions of this Agreement as they may apply for the Member in question.

• 18.5 Each Member shall inform the Committee of any changes in its laws and regulations relevant to this Agreement and in the administration of such laws and regulations.

• 18.6 The Committee shall review annually the implementation and operation of this Agreement taking into account the objectives thereof. The Committee shall inform annually the Council for Trade in Goods of developments during the period covered by such reviews.

• 18.7 The Annexes to this Agreement constitute an integral part thereof.

Annex I. Procedures for on-the-spot investigations pursuant to paragraph 7 of Article 6

• 1. Upon initiation of an investigation, the authorities of the exporting Member and the firms known to be concerned should be informed of the intention to carry out on-the-spot investigations.

• 2. If in exceptional circumstances it is intended to include non-governmental experts in the investigating team, the firms and the authorities of the exporting Member should be so informed. Such non-governmental experts should be subject to effective sanctions for breach of confidentiality requirements.

• 3. It should be standard practice to obtain explicit agreement of the firms concerned in the exporting Member before the visit is finally scheduled.

• 4. As soon as the agreement of the firms concerned has been obtained, the investigating authorities should notify the authorities of the exporting Member of the names and addresses of the firms to be visited and the dates agreed.

• 5. Sufficient advance notice should be given to the firms in question before the visit is made.

• 6. Visits to explain the questionnaire should only be made at the request of an exporting firm. Such a visit may only be made if (a) the authorities of the importing Member notify the representatives of the Member in question and (b) the latter do not object to the visit.

• 7. As the main purpose of the on-the-spot investigation is to verify information provided or to obtain further details, it should be carried out after the response to the questionnaire has been received unless the firm agrees to the contrary and the government of the exporting Member is informed by the investigating authorities of the anticipated visit and does not object to it; further, it should be standard practice prior to the visit to advise the firms concerned of the general nature of the information to be verified and of any further information which needs to be provided, though this should not preclude requests to be made on the spot for further details to be provided in the light of information obtained.

• 8. Enquiries or questions put by the authorities or firms of the exporting Members and essential to a successful on-the-spot investigation should, whenever possible, be answered before the visit is made.

Annex II. Best information available in terms of paragraph 8 of Article 6

1.

As soon as possible after the initiation of the investigation, the investigating authorities should specify in detail the information required from any interested party, and the manner in which that information should be structured by the interested party in its response. The authorities should also ensure that the party is aware that if information is not supplied within a reasonable time, the authorities will be free to make determinations on the basis of the facts available, including those contained in the application for the initiation of the investigation by the domestic industry.

2.

The authorities may also request that an interested party provide its response in a particular medium (e.g. computer tape) or computer language. Where such a request is made, the authorities should consider the reasonable ability of the interested party to respond in the preferred medium or computer language, and should not request the party to use for its response a computer system other than that used by the party. The authority should not maintain a request for a computerized response if the interested party does not maintain computerized accounts and if presenting the response as requested would result in an unreasonable extra burden on the interested party, e.g. it would entail unreasonable additional cost and trouble. The authorities should not maintain a request for a response in a particular medium or computer language if the interested party does not maintain its computerized accounts in such medium or computer language and if presenting the response as requested would result in an unreasonable extra burden on the interested party, e.g. it would entail unreasonable additional cost and trouble.

3.

All information which is verifiable, which is appropriately submitted so that it can be used in the investigation without undue difficulties, which is supplied in a timely fashion, and, where applicable, which is supplied in a medium or computer language requested by the authorities, should be taken into account when determinations are made. If a party does not respond in the preferred medium or computer language but the authorities find that the circumstances set out in paragraph 2 have been satisfied, the failure to respond in the preferred medium or computer language should not be considered to significantly impede the investigation.

4.

Where the authorities do not have the ability to process information if provided in a particular medium (e.g. computer tape), the information should be supplied in the form of written material or any other form acceptable to the authorities.

5.

Even though the information provided may not be ideal in all respects, this should not justify the authorities from disregarding it, provided the interested party has acted to the best of its ability.

6.

If evidence or information is not accepted, the supplying party should be informed forthwith of the reasons therefor, and should have an opportunity to provide further explanations within a reasonable period, due account being taken of the time-limits of the investigation. If the explanations are considered by the authorities as not being satisfactory, the reasons for the rejection of such evidence or information should be given in any published determinations.

7.

If the authorities have to base their findings, including those with respect to normal value, on information from a secondary source, including the information supplied in the application for the initiation of the investigation, they should do so with special circumspection. In such cases, the authorities should, where practicable, check the information from other independent sources at their disposal, such as published price lists, official import statistics and customs returns, and from the information obtained from other interested parties during the investigation. It is clear, however, that if an interested party does not cooperate and thus relevant information is being withheld from the authorities, this situation could lead to a result which is less favourable to the party than if the party did cooperate.

Agreement on implementation of article VII of the General Agreement on Tariffs and Trade 1994

General introductory commentary

• 1. The primary basis for customs value under this Agreement is "transaction value" as defined in Article 1. Article 1 is to be read together with Article 8 which provides, inter alia, for adjustments to the price actually paid or payable in cases where certain specific elements which are considered to form a part of the value for customs purposes are incurred by the buyer but are not included in the price actually paid or payable for the imported goods. Article 8 also provides for the inclusion in the transaction value of certain considerations which may pass from the buyer to the seller in the form of specified goods or services rather than in the form of money. Articles 2 through 7 provide methods of determining the customs value whenever it cannot be determined under the provisions of Article 1.

• 2. Where the customs value cannot be determined under the provisions of Article 1 there should normally be a process of consultation between the customs administration and importer with a view to arriving at a basis of value under the provisions of Article 2 or 3. It may occur, for example, that the importer has information about the customs value of identical or similar imported goods which is not immediately available to the customs administration in the port of importation. On the other hand, the customs administration may have information about the customs value of identical or similar imported goods which is not readily available to the importer. A process of consultation between the two parties will enable information to be exchanged, subject to the requirements of commercial confidentiality, with a view to determining a proper basis of value for customs purposes.

• 3. Articles 5 and 6 provide two bases for determining the customs value where it cannot be determined on the basis of the transaction value of the imported goods or of identical or similar imported goods. Under paragraph 1 of Article 5 the customs value is determined on the basis of the price at which the goods are sold in the condition as imported to an unrelated buyer in the country of importation. The importer also has the right to have goods which are further processed after importation valued under the provisions of Article 5 if the importer so requests. Under Article 6 the customs value is determined on the basis of the computed value. Both these methods present certain difficulties and because of this the importer is given the right, under the provisions of Article 4, to choose the order of application of the two methods.

• 4. Article 7 sets out how to determine the customs value in cases where it cannot be determined under the provisions of any of the preceding Articles.

Members,

Having regard to the Multilateral Trade Negotiations;

Desiring to further the objectives of GATT 1994 and to secure additional benefits for the international trade of developing countries;

Recognizing the importance of the provisions of Article VII of GATT 1994 and desiring to elaborate rules for their application in order to provide greater uniformity and certainty in their implementation;

Recognizing the need for a fair, uniform and neutral system for the valuation of goods for customs purposes that precludes the use of arbitrary or fictitious customs values;

Recognizing that the basis for valuation of goods for customs purposes should, to the greatest extent possible, be the transaction value of the goods being valued;

Recognizing that customs value should be based on simple and equitable criteria consistent with commercial practices and that valuation procedures should be of general application without distinction between sources of supply;

Recognizing that valuation procedures should not be used to combat dumping;

Hereby agree as follows:

PART I. RULES ON CUSTOMS VALUATION

Article 1

• 1 The customs value of imported goods shall be the transaction value, that is the price actually paid or payable for the goods when sold for export to the country of importation adjusted in accordance with the provisions of Article 8, provided:

  • a) that there are no restrictions as to the disposition or use of the goods by the buyer other than restrictions which:

    • i) are imposed or required by law or by the public authorities in the country of importation;

    • ii) limit the geographical area in which the goods may be resold; or

    • iii) do not substantially affect the value of the goods;

  • b) that the sale or price is not subject to some condition or consideration for which a value cannot be determined with respect to the goods being valued;

  • c) that no part of the proceeds of any subsequent resale, disposal or use of the goods by the buyer will accrue directly or indirectly to the seller, unless an appropriate adjustment can be made in accordance with the provisions of Article 8; and

  • d) that the buyer and seller are not related, or where the buyer and seller are related, that the transaction value is acceptable for customs purposes under the provisions of paragraph 2.

• 2

  • a) In determining whether the transaction value is acceptable for the purposes of paragraph 1, the fact that the buyer and the seller are related within the meaning of Article 15 shall not in itself be grounds for regarding the transaction value as unacceptable. In such case the circumstances surrounding the sale shall be examined and the transaction value shall be accepted provided that the relationship did not influence the price. If, in the light of information provided by the importer or otherwise, the customs administration has grounds for considering that the relationship influenced the price, it shall communicate its grounds to the importer and the importer shall be given a reasonable opportunity to respond. If the importer so requests, the communication of the grounds shall be in writing.

  • b) In a sale between related persons, the transaction value shall be accepted and the goods valued in accordance with the provisions of paragraph 1 whenever the importer demonstrates that such value closely approximates to one of the following occurring at or about the same time:

    • i) the transaction value in sales to unrelated buyers of identical or similar goods for export to the same country of importation;

    • ii) the customs value of identical or similar goods as determined under the provisions of Article 5;

    • iii) the customs value of identical or similar goods as determined under the provisions of Article 6;

    In applying the foregoing tests, due account shall be taken of demonstrated differences in commercial levels, quantity levels, the elements enumerated in Article 8 and costs incurred by the seller in sales in which the seller and the buyer are not related that are not incurred by the seller in sales in which the seller and the buyer are related.

  • c) The tests set forth in paragraph 2(b) are to be used at the initiative of the importer and only for comparison purposes. Substitute values may not be established under the provisions of paragraph 2(b).

Article 2

• 1

  • a) If the customs value of the imported goods cannot be determined under the provisions of Article 1, the customs value shall be the transaction value of identical goods sold for export to the same country of importation and exported at or about the same time as the goods being valued.

  • b) In applying this Article, the transaction value of identical goods in a sale at the same commercial level and in substantially the same quantity as the goods being valued shall be used to determine the customs value. Where no such sale is found, the transaction value of identical goods sold at a different commercial level and/or in different quantities, adjusted to take account of differences attributable to commercial level and/or to quantity, shall be used, provided that such adjustments can be made on the basis of demonstrated evidence which clearly establishes the reasonableness and accuracy of the adjustment, whether the adjustment leads to an increase or a decrease in the value.

• 2 Where the costs and charges referred to in paragraph 2 of Article 8 are included in the transaction value, an adjustment shall be made to take account of significant differences in such costs and charges between the imported goods and the identical goods in question arising from differences in distances and modes of transport.

• 3 If, in applying this Article, more than one transaction value of identical goods is found, the lowest such value shall be used to determine the customs value of the imported goods.

Article 3

• 1

  • a) If the customs value of the imported goods cannot be determined under the provisions of Articles 1 and 2, the customs value shall be the transaction value of similar goods sold for export to the same country of importation and exported at or about the same time as the goods being valued.

  • b) In applying this Article, the transaction value of similar goods in a sale at the same commercial level and in substantially the same quantity as the goods being valued shall be used to determine the customs value. Where no such sale is found, the transaction value of similar goods sold at a different commercial level and/or in different quantities, adjusted to take account of differences attributable to commercial level and/or to quantity, shall be used, provided that such adjustments can be made on the basis of demonstrated evidence which clearly establishes the reasonableness and accuracy of the adjustment, whether the adjustment leads to an increase or a decrease in the value.

• 2 Where the costs and charges referred to in paragraph 2 of Article 8 are included in the transaction value, an adjustment shall be made to take account of significant differences in such costs and charges between the imported goods and the similar goods in question arising from differences in distances and modes of transport.

• 3 If, in applying this Article, more than one transaction value of similar goods is found, the lowest such value shall be used to determine the customs value of the imported goods.

Article 4

If the customs value of the imported goods cannot be determined under the provisions of Articles 1, 2 and 3, the customs value shall be determined under the provisions of Article 5 or, when the customs value cannot be determined under that Article, under the provisions of Article 6 except that, at the request of the importer, the order of application of Articles 5 and 6 shall be reversed.

Article 5

• 1

  • a) If the imported goods or identical or similar imported goods are sold in the country of importation in the condition as imported, the customs value of the imported goods under the provisions of this Article shall be based on the unit price at which the imported goods or identical or similar imported goods are so sold in the greatest aggregate quantity, at or about the time of the importation of the goods being valued, to persons who are not related to the persons from whom they buy such goods, subject to deductions for the following:

    • i) either the commissions usually paid or agreed to be paid or the additions usually made for profit and general expenses in connection with sales in such country of imported goods of the same class or kind;

    • ii) the usual costs of transport and insurance and associated costs incurred within the country of importation;

    • iii) where appropriate, the costs and charges referred to in paragraph 2 of Article 8; and

    • iv) the customs duties and other national taxes payable in the country of importation by reason of the importation or sale of the goods.

  • b) If neither the imported goods nor identical nor similar imported goods are sold at or about the time of importation of the goods being valued, the customs value shall, subject otherwise to the provisions of paragraph la), be based on the unit price at which the imported goods or identical or similar imported goods are sold in the country of importation in the condition as imported at the earliest date after the importation of the goods being valued but before the expiration of 90 days after such importation.

• 2 If neither the imported goods nor identical nor similar imported goods are sold in the country of importation in the condition as imported, then, if the importer so requests, the customs value shall be based on the unit price at which the imported goods, after further processing, are sold in the greatest aggregate quantity to persons in the country of importation who are not related to the persons from whom they buy such goods, due allowance being made for the value added by such processing and the deductions provided for in paragraph l(a).

Article 6

• 1 The customs value of imported goods under the provisions of this Article shall be based on a computed value. Computed value shall consist of the sum of:

  • a) the cost or value of materials and fabrication or other processing employed in producing the imported goods;

  • b) an amount for profit and general expenses equal to that usually reflected in sales of goods of the same class or kind as the goods being valued which are made by producers in the country of exportation for export to the country of importation;

  • c) the cost or value of all other expenses necessary to reflect the valuation option chosen by the Member under paragraph 2 of Article 8.

• 2 No Member may require or compel any person not resident in its own territory to produce for examination, or to allow access to, any account or other record for the purposes of determining a computed value. However, information supplied by the producer of the goods for the purposes of determining the customs value under the provisions of this Article may be verified in another country by the authorities of the country of importation with the agreement of the producer and provided they give sufficient advance notice to the government of the country in question and the latter does not object to the investigation.

Article 7

• 1 If the customs value of the imported goods cannot be determined under the provisions of Articles 1 through 6, inclusive, the customs value shall be determined using reasonable means consistent with the principles and general provisions of this Agreement and of Article VII of GATT 1994 and on the basis of data available in the country of importation.

• 2 No customs value shall be determined under the provisions of this Article on the basis of:

  • a) the selling price in the country of importation of goods produced in such country;

  • b) a system which provides for the acceptance for customs purposes of the higher of two alternative values;

  • c) the price of goods on the domestic market of the country of exportation;

  • d) the cost of production other than computed values which have been determined for identical or similar goods in accordance with the provisions of Article 6;

  • e) the price of the goods for export to a country other than the country of importation;

  • f) minimum customs values; or

  • g) arbitrary or fictitious values.

• 3 If the importer so requests, the importer shall be informed in writing of the customs value determined under the provisions of this Article and the method used to determine such value.

Article 8

• 1 In determining the customs value under the provisions of Article 1, there shall be added to the price actually paid or payable for the imported goods:

  • a) the following, to the extent that they are incurred by the buyer but are not included in the price actually paid or payable for the goods:

    • i) commissions and brokerage, except buying commissions;

    • ii) the cost of containers which are treated as being one for customs purposes with the goods in question;

    • iii) the cost of packing whether for labour or materials;

  • b) the value, apportioned as appropriate, of the following goods and services where supplied directly or indirectly by the buyer free of charge or at reduced cost for use in connection with the production and sale for export of the imported goods, to the extent that such value has not been included in the price actually paid or payable:

    • i) materials, components, parts and similar items incorporated in the imported goods;

    • ii) tools, dies, moulds and similar items used in the production of the imported goods;

    • iii) materials consumed in the production of the imported goods;

    • iv) engineering, development, artwork, design work, and plans and sketches undertaken elsewhere than in the country of importation and necessary for the production of the imported goods;

  • c) royalties and licence fees related to the goods being valued that the buyer must pay, either directly or indirectly, as a condition of sale of the goods being valued, to the extent that such royalties and fees are not included in the price actually paid or payable;

  • d) the value of any part of the proceeds of any subsequent resale, disposal or use of the imported goods that accrues directly or indirectly to the seller.

• 2 In framing its legislation, each Member shall provide for the inclusion in or the exclusion from the customs value, in whole or in part, of the following:

  • a) the cost of transport of the imported goods to the port or place of importation;

  • b) loading, unloading and handling charges associated with the transport of the imported goods to the port or place of importation; and

  • c) the cost of insurance.

• 3 Additions to the price actually paid or payable shall be made under this Article only on the basis of objective and quantifiable data.

• 4 No additions shall be made to the price actually paid or payable in determining the customs value except as provided in this Article.

Article 9

• 1 Where the conversion of currency is necessary for the determination of the customs value, the rate of exchange to be used shall be that duly published by the competent authorities of the country of importation concerned and shall reflect as effectively as possible, in respect of the period covered by each such document of publication, the current value of such currency in commercial transactions in terms of the currency of the country of importation.

• 2 The conversion rate to be used shall be that in effect at the time of exportation or the time of importation, as provided by each Member.

Article 10

All information which is by nature confidential or which is provided on a confidential basis for the purposes of customs valuation shall be treated as strictly confidential by the authorities concerned who shall not disclose it without the specific permission of the person or government providing such information, except to the extent that it may be required to be disclosed in the context of judicial proceedings.

Article 11

• 1 The legislation of each member shall provide in regard to a determination of customs value for the right of appeal, without penalty, by the importer or any other person liable for the payment of the duty.

• 2 An initial right of appeal without penalty may be to an authority within the customs administration or to an independent body, but the legislation of each Member shall provide for the right of appeal without penalty to a judicial authority.

• 3 Notice of the decision on appeal shall be given to the appellant and the reasons for such decision shall be provided in writing. The appellant shall also be informed of any rights of further appeal.

Article 12

Laws, regulations, judicial decisions and administrative rulings of general application giving effect to this Agreement shall be published in conformity with Article X of GATT 1994 by the country of importation concerned.

Article 13

If, in the course of determining the customs value of imported goods, it becomes necessary to delay the final determination of such customs value, the importer of the goods shall nevertheless be able to withdraw them from customs if, where so required, the importer provides sufficient guarantee in the form of a surety, a deposit or some other appropriate instrument, covering the ultimate payment of customs duties for which the goods may be liable. The legislation of each Member shall make provisions for such circumstances.

Article 14

The notes at Annex I to this Agreement form an integral part of this Agreement and the Articles of this Agreement are to be read and applied in conjunction with their respective notes. Annexes II and III also form an integral part of this Agreement.

Article 15

• 1 In this Agreement:

  • a) "customs value of imported goods" means the value of goods for the purposes of levying ad valorem duties of customs on imported goods;

  • b) "country of importation" means country or customs territory of importation; and

  • c) "produced" includes grown, manufactured and mined.

• 2 In this Agreement:

  • a) "identical goods" means goods which are the same in all respects, including physical characteristics, quality and reputation. Minor differences in appearance would not preclude goods otherwise conforming to the definition from being regarded as identical;

  • b) "similar goods" means goods which, although not alike in all respects, have like characteristics and like component materials which enable them to perform the same functions and to be commercially interchangeable. The quality of the goods, their reputation and the existence of a trademark are among the factors to be considered in determining whether goods are similar;

  • c) the terms "identical goods" and "similar goods" do not include, as the case may be, goods which incorporate or reflect engineering, development, artwork, design work, and plans and sketches for which no adjustment has been made under paragraph l(b)(iv) of Article 8 because such elements were undertaken in the country of importation;

  • d) goods shall not be regarded as "identical goods" or "similar goods" unless they were produced in the same country as the goods being valued;

  • e) goods produced by a different person shall be taken into account only when there are no identical goods or similar goods, as the case may be, produced by the same person as the goods being valued.

• 3 In this Agreement "goods of the same class or kind" means goods which fall within a group or range of goods produced by a particular industry or industry sector, and includes identical or similar goods.

• 4 For the purposes of this Agreement, persons shall be deemed to be related only if:

  • a) they are officers or directors of one another's businesses;

  • b) they are legally recognized partners in business;

  • c) they are employer and employee;

  • d) any person directly or indirectly owns, controls or holds 5 per cent or more of the outstanding voting stock or shares of both of them;

  • e) one of them directly or indirectly controls the other;

  • f) both of them are directly or indirectly controlled by a third person;

  • g) together they directly or indirectly control a third person; or

  • h) they are members of the same family.

• 5 Persons who are associated in business with one another in that one is the sole agent, sole distributor or sole concessionaire, however described, of the other shall be deemed to be related for the purposes of this Agreement if they fall within the criteria of paragraph 4.

Article 16

Upon written request, the importer shall have the right to an explanation in writing from the customs administration of the country of importation as to how the customs value of the importer's goods was determined.

Article 17

Nothing in this Agreement shall be construed as restricting or calling into question the rights of customs administrations to satisfy themselves as to the truth or accuracy of any statement, document or declaration presented for customs valuation purposes.

PART II. ADMINISTRATION, CONSULTATIONS AND DISPUTE SETTLEMENT

Article 18. Institutions

• 1 There is hereby established a Committee on Customs Valuation (referred to in this Agreement as "the Committee") composed of representatives from each of the Members. The Committee shall elect its own Chairman and shall normally meet once a year, or as is otherwise envisaged by the relevant provisions of this Agreement, for the purpose of affording Members the opportunity to consult on matters relating to the administration of the customs valuation system by any Member as it might affect the operation of this Agreement or the furtherance of its objectives and carrying out such other responsibilities as may be assigned to it by the Members. The WTO Secretariat shall act as the secretariat to the Committee.

• 2 There shall be established a Technical Committee on Customs Valuation (referred to in this Agreement as "the Technical Committee") under the auspices of the Customs Co-operation Council (referred to in this Agreement as "the CCC"), which shall carry out the responsibilities described in Annex II to this Agreement and shall operate in accordance with the rules of procedure contained therein.

Article 19. Consultations and Dispute Settlement

• 1 Except as otherwise provided herein, the Dispute Settlement Understanding is applicable to consultations and the settlement of disputes under this Agreement.

• 2 If any Member considers that any benefit accruing to it, directly or indirectly, under this Agreement is being nullified or impaired, or that the achievement of any objective of this Agreement is being impeded, as a result of the actions of another Member or of other Members, it may, with a view to reaching a mutually satisfactory solution of this matter, request consultations with the Member or Members in question. Each Member shall afford sympathetic consideration to any request from another Member for consultations.

• 3 The Technical Committee shall provide, upon request, advice and assistance to Members engaged in consultations.

• 4 At the request of a party to the dispute, or on its own initiative, a panel established to examine a dispute relating to the provisions of this Agreement may request the Technical Committee to carry out an examination of any questions requiring technical consideration. The panel shall determine the terms of reference of the Technical Committee for the particular dispute and set a time period for receipt of the report of the Technical Committee. The panel shall take into consideration the report of the Technical Committee. In the event that the Technical Committee is unable to reach consensus on a matter referred to it pursuant to this paragraph, the panel should afford the parties to the dispute an opportunity to present their views on the matter to the panel.

• 5 Confidential information provided to the panel shall not be disclosed without formal authorization from the person, body or authority providing such information. Where such information is requested from the panel but release of such information by the panel is not authorized, a non-confidential summary of this information, authorized by the person, body or authority providing the information, shall be provided.

PART III. SPECIAL AND DIFFERENTIAL TREATMENT

Article 20

• 1 Developing country Members not party to the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade done on 12 April 1979 may delay application of the provisions of this Agreement for a period not exceeding five years from the date of entry into force of the WTO Agreement for such Members. Developing country Members who choose to delay application of this Agreement shall notify the Director-General of the WTO accordingly.

• 2 In addition to paragraph 1, developing country Members not party to the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade done on 12 April 1979 may delay application of paragraph 2(b)(iii) of Article 1 and Article 6 for a period not exceeding three years following their application of all other provisions of this Agreement. Developing country Members that choose to delay application of the provisions specified in this paragraph shall notify the Director-General of the WTO accordingly.

• 3 Developed country Members shall furnish, on mutually agreed terms, technical assistance to developing country Members that so request. On this basis developed country Members shall draw up programmes of technical assistance which may include, inter alia, training of personnel, assistance in preparing implementation measures, access to sources of information regarding customs valuation methodology, and advice on the application of the provisions of this Agreement.

PART IV. FINAL PROVISIONS

Article 21. Reservations

Reservations may not be entered in respect of any of the provisions of this Agreement without the consent of the other Members.

Article 22. National Legislation

• 1 Each Member shall ensure, not later than the date of application of the provisions of this Agreement for it, the conformity of its laws, regulations and administrative procedures with the provisions of this Agreement.

• 2 Each Member shall inform the Committee of any changes in its laws and regulations relevant to this Agreement and in the administration of such laws and regulations.

Article 23. Review

The Committee shall review annually the implementation and operation of this Agreement taking into account the objectives thereof. The Committee shall annually inform the Council for Trade in Goods of developments during the period covered by such reviews.

Article 24. Secretariat

This Agreement shall be serviced by the WTO Secretariat except in regard to those responsibilities specifically assigned to the Technical Committee, which will be serviced by the CCC Secretariat.

Annex I. INTERPRETATIVE NOTES

General Note

Sequential Application of Valuation Methods

• 1. Articles 1 through 7 define how the customs value of imported goods is to be determined under the provisions of this Agreement. The methods of valuation are set out in a sequential order of application. The primary method for customs valuation is defined in Article 1 and imported goods are to be valued in accordance with the provisions of this Article whenever the conditions prescribed therein are fulfilled.

• 2. Where the customs value cannot be determined under the provisions of Article 1, it is to be determined by proceeding sequentially through the succeeding Articles to the first such Article under which the customs value can be determined. Except as provided in Article 4, it is only when the customs value cannot be determined under the provisions of a particular Article that the provisions of the next Article in the sequence can be used.

• 3. If the importer does not request that the order of Articles 5 and 6 be reversed, the normal order of the sequence is to be followed. If the importer does so request but it then proves impossible to determine the customs value under the provisions of Article 6, the customs value is to be determined under the provisions of Article 5, if it can be so determined.

• 4. Where the customs value cannot be determined under the provisions of Articles 1 through 6 it is to be determined under the provisions of Article 7.

Use of Generally Accepted Accounting Principles

• 1. “Generally accepted accounting principles” refers to the recognized consensus or substantial authoritative support within a country at a particular time as to which economic resources and obligations should be recorded as assets and liabilities, which changes in assets and liabilities should be recorded, how the assets and liabilities and changes in them should be measured, what information should be disclosed and how it should be disclosed, and which financial statements should be prepared. These standards may be broad guidelines of general application as well as detailed practices and procedures.

• 2. For the purposes of this Agreement, the customs administration of each Member shall utilize information prepared in a manner consistent with generally accepted accounting principles in the country which is appropriate for the Article in question. For example, the determination of usual profit and general expenses under the provisions of Article 5 would be carried out utilizing information prepared in a manner consistent with generally accepted accounting principles of the country of importation. On the other hand, the determination of usual profit and general expenses under the provisions of Article 6 would be carried out utilizing information prepared in a manner consistent with generally accepted accounting principles of the country of production. As a further example, the determination of an element provided for in paragraph l(b)(ii) of Article 8 undertaken in the country of importation would be carried out utilizing information in a manner consistent with the generally accepted accounting principles of that country.

Note to Article 1

Price Actually Paid or Payable

• 1. The price actually paid or payable is the total payment made or to be made by the buyer to or for the benefit of the seller for the imported goods. The payment need not necessarily take the form of a transfer of money. Payment may be made by way of letters of credit or negotiable instruments. Payment may be made directly or indirectly. An example of an indirect payment would be the settlement by the buyer, whether in whole or in part, of a debt owed by the seller.

• 2. Activities undertaken by the buyer on the buyer's own account, other than those for which an adjustment is provided in Article 8, are not considered to be an indirect payment to the seller, even though they might be regarded as of benefit to the seller. The costs of such activities shall not, therefore, be added to the price actually paid or payable in determining the customs value.

• 3. The customs value shall not include the following charges or costs, provided that they are distinguished from the price actually paid or payable for the imported goods:

  • a) charges for construction, erection, assembly, maintenance or technical assistance, undertaken after importation on imported goods such as industrial plant, machinery or equipment;

  • b) the cost of transport after importation;

  • c) duties and taxes of the country of importation.

• 4. The price actually paid or payable refers to the price for the imported goods. Thus the flow of dividends or other payments from the buyer to the seller that do not relate to the imported goods are not part of the customs value.

Paragraph 1a)iii)

Among restrictions which would not render a price actually paid or payable unacceptable are restrictions which do not substantially affect the value of the goods. An example of such restrictions would be the case where a seller requires a buyer of automobiles not to sell or exhibit them prior to a fixed date which represents the beginning of a model year.

Paragraph 1b)

• 1. If the sale or price is subject to some condition or consideration for which a value cannot be determined with respect to the goods being valued, the transaction value shall not be acceptable for customs purposes. Some examples of this include:

  • a) the seller establishes the price of the imported goods on condition that the buyer will also buy other goods in specified quantities;

  • b) the price of the imported goods is dependent upon the price or prices at which the buyer of the imported goods sells other goods to the seller of the imported goods;

  • c) the price is established on the basis of a form of payment extraneous to the imported goods, such as where the imported goods are semi-finished goods which have been provided by the seller on condition that the seller will receive a specified quantity of the finished goods.

• 2. However, conditions or considerations relating to the production or marketing of the imported goods shall not result in rejection of the transaction value. For example, the fact that the buyer furnishes the seller with engineering and plans undertaken in the country of importation shall not result in rejection of the transaction value for the purposes of Article 1. Likewise, if the buyer undertakes on the buyer's own account, even though by agreement with the seller, activities relating to the marketing of the imported goods, the value of these activities is not part of the customs value nor shall such activities result in rejection of the trans action value.

Paragraph 2

• 1. Paragraphs 2(a) and 2(b) provide different means of establishing the acceptability of a transaction value.

• 2. Paragraph 2(a) provides that where the buyer and the seller are related, the circumstances surrounding the sale shall be examined and the transaction value shall be accepted as the customs value provided that the relationship did not influence the price. It is not intended that there should be an examination of the circumstances in all cases where the buyer and the seller are related. Such examination will only be required where there are doubts about the acceptability of the price. Where the customs administration have no doubts about the acceptability of the price, it should be accepted without requesting further information from the importer. For example, the customs administration may have previously examined the relationship, or it may already have detailed information concerning the buyer and the seller, and may already be satisfied from such examination or information that the relationship did not influence the price.

• 3. Where the customs administration is unable to accept the transaction value without further inquiry, it should give the importer an opportunity to supply such further detailed information as may be necessary to enable it to examine the circumstances surrounding the sale. In this context, the customs administration should be prepared to examine relevant aspects of the transaction, including the way in which the buyer and seller organize their commercial relations and the way in which the price in question was arrived at, in order to determine whether the relationship influenced the price. Where it can be shown that the buyer and seller, although related under the provisions of Article 15, buy from and sell to each other as if they were not related, this would demonstrate that the price had not been influenced by the relationship. As an example of this, if the price had been settled in a manner consistent with the normal pricing practices of the industry in question or with the way the seller settles prices for sales to buyers who are not related to the seller, this would demonstrate that the price had not been influenced by the relationship. As a further example, where it is shown that the price is adequate to ensure recovery of all costs plus a profit which is representative of the firm's overall profit realized over a representative period of time (e.g. on an annual basis) in sales of goods of the same class or kind, this would demonstrate that the price had not been influenced.

• 4. Paragraph 2b) provides an opportunity for the importer to demonstrate that the transaction value closely approximates to a “test” value previously accepted by the customs administration and is therefore acceptable under the provisions of Article 1. Where a test under paragraph 2b) is met, it is not necessary to examine the question of influence under paragraph 2a). If the customs administration has already sufficient information to be satisfied, without further detailed inquiries, that one of the tests provided in paragraph 2b) has been met, there is no reason for it to require the importer to demonstrate that the test can be met. In paragraph 2b) the term “unrelated buyers” means buyers who are not related to the seller in any particular case.

Paragraph 2b)

A number of factors must be taken into consideration in determining whether one value “closely approximates” to another value. These factors include the nature of the imported goods, the nature of the industry itself, the season in which the goods are imported, and, whether the difference in values is commercially significant. Since these factors may vary from case to case, it would be impossible to apply a uniform standard such as a fixed percentage, in each case. For example, a small difference in value in a case involving one type of goods could be unacceptable while a large difference in a case involving another type of goods might be acceptable in determining whether the transaction value closely approximates to the “test” values set forth in paragraph 2b) of Article 1.

Note to Article 2

• 1. In applying Article 2, the customs administration shall, wherever possible, use a sale of identical goods at the same commercial level and in substantially the same quantities as the goods being valued. Where no such sale is found, a sale of identical goods that takes place under any one of the following three conditions may be used:

  • a) a sale at the same commercial level but in different quantities;

  • b) a sale at a different commercial level but in substantially the same quantities; or

  • c) a sale at a different commercial level and in different quantities.

• 2. Having found a sale under any one of these three conditions adjustments will then be made, as the case may be, for:

  • a) quantity factors only;

  • b) commercial level factors only; or

  • c) both commercial level and quantity factors.

• 3. The expression “and/or” allows the flexibility to use the sales and make the necessary adjustments in any one of the three conditions described above.

• 4. For the purposes of Article 2, the transaction value of identical imported goods means a customs value, adjusted as provided for in paragraphs 1(b) and 2, which has already been accepted under Article 1.

• 5. A condition for adjustment because of different commercial levels or different quantities is that such adjustment, whether it leads to an increase or a decrease in the value, be made only on the basis of demonstrated evidence that clearly establishes the reasonableness and accuracy of the adjustments, e.g. valid price lists containing prices referring to different levels or different quantities. As an example of this, if the imported goods being valued consist of a shipment of 10 units and the only identical imported goods for which a transaction value exists involved a sale of 500 units, and it is recognized that the seller grants quantity discounts, the required adjustment may be accomplished by resorting to the seller's price list and using that price applicable to a sale of 10 units. This does not require that a sale had to have been made in quantities of 10 as long as the price list has been established as being bona fide through sales at other quantities. In the absence of such an objective measure, however, the determination of a customs value under the provisions of Article 2 is not appropriate.

Note to Article 3

• 1. In applying Article 3, the customs administration shall, wherever possible, use a sale of similar goods at the same commercial level and in substantially the same quantities as the goods being valued. Where no such sale is found, a sale of similar goods that takes place under any one of the following three conditions may be used:

  • a) a sale at the same commercial level but in different quantities;

  • b) a sale at a different commercial level but in substantially the same quantities; or

  • c) a sale at a different commercial level and in different quantities.

• 2. Having found a sale under any one of these three conditions adjustments will then be made, as the case may be, for:

  • a) quantity factors only;

  • b) commercial level factors only; or

  • c) both commercial level and quantity factors.

• 3. The expression “and/or” allows the flexibility to use the sales and make the necessary adjustments in any one of the three conditions described above.

• 4. For the purpose of Article 3, the transaction value of similar imported goods means a customs value, adjusted as provided for in paragraphs 1(b) and 2, which has already been accepted under Article 1.

• 5. A condition for adjustment because of different commercial levels or different quantities is that such adjustment, whether it leads to an increase or a decrease in the value, be made only on the basis of demonstrated evidence that clearly establishes the reasonableness and accuracy of the adjustment, e.g. valid price lists containing prices referring to different levels or different quantities. As an example of this, if the imported goods being valued consist of a shipment of 10 units and the only similar imported goods for which a transaction value exists involved a sale of 500 units, and it is recognized that the seller grants quantity discounts, the required adjustment may be accomplished by resorting to the seller's price list and using that price applicable to a sale of 10 units. This does not require that a sale had to have been made in quantities of 10 as long as the price list has been established as being bona fide through sales at other quantities. In the absence of such an objective measure, however, the determination of a customs value under the provisions of Article 3 is not appropriate.

Note to Article 5

• 1. The term “unit price at which ... goods are sold in the greatest aggregate quantity” means the price at which the greatest number of units is sold in sales to persons who are not related to the persons from whom they buy such goods at the first commercial level after importation at which such sales take place.

• 2. As an example of this, goods are sold from a price list which grants favourable unit prices for purchases made in larger quantities.

  Sale quantity	Unit price	Number of sales	Total quantity sold at each price
  1-10 units	100	10 sales of 5 units	65
  		5 sales of 3 units
  11-25 units	95	5 sales of 11 units	55
  over 25 units	90	1 sale of 30 units	80
  		1 sale of 50 units

  The greatest number of units sold at a price is 80; therefore, the unit price in the greatest aggregate quantity is 90.

• 3. As another example of this, two sales occur. In the first sale 500 units are sold at a price of 95 currency units each. In the second sale 400 units are sold at a price of 90 currency units each. In this example, the greatest number of units sold at a particular price is 500; therefore, the unit price in the greatest aggregate quantity is 95.

• 4. A third example would be the following situation where various quantities are sold at various prices.

  a) Sales
  Sale quantity	Unit price
  40 units	100
  30 units	90
  15 units	100
  50 units	95
  25 units	105
  35 units	90
  5 units	100

  b) Totals
  Total quantity sold	Unit price
  65	90
  50	95
  60	100
  25	105

  In this example, the greatest number of units sold at a particular price is 65; therefore, the unit price in the greatest aggregate quantity is 90.

• 5. Any sale in the importing country, as described in paragraph 1 above, to a person who supplies directly or indirectly free of charge or at reduced cost for use in connection with the production and sale for export of the imported goods any of the elements specified in paragraph 1b) of Article 8, should not be taken into account in establishing the unit price for the purposes of Article 5.

• 6. It should be noted that “profit and general expenses” referred to in paragraph 1 of Article 5 should be taken as a whole. The figure for the purposes of this deduction should be determined on the basis of information supplied by or on behalf of the importer unless the importer's figures are inconsistent with those obtained in sales in the country of importation of imported goods of the same class or kind. Where the importer's figures are inconsistent with such figures, the amount for profit and general expenses may be based upon relevant information other than that supplied by or on behalf of the importer.

• 7. The “general expenses” include the direct and indirect costs of marketing the goods in question.

• 8. Local taxes payable by reason of the sale of the goods for which a deduction is not made under the provisions of paragraph 1a)iv) of Article 5 shall be deducted under the provisions of paragraph 1a)i) of Article 5.

• 9. In determining either the commissions or the usual profits and general expenses under the provisions of paragraph 1 of Article 5, the question whether certain goods are “of the same class or kind” as other goods must be determined on a case-by-case basis by reference to the circumstances involved. Sales in the country of importation of the narrowest group or range of imported goods of the same class or kind, which includes the goods being valued, for which the necessary information can be provided, should be examined. For the purposes of Article 5, “goods of the same class or kind” includes goods imported from the same country as the goods being valued as well as goods imported from other countries.

• 10. For the purposes of paragraph 1b) of Article 5, the “earliest date” shall be the date by which sales of the imported goods or of identical or similar imported goods are made in sufficient quantity to establish the unit price.

• 11. Where the method in paragraph 2 of Article 5 is used, deductions made for the value added by further processing shall be based on objective and quantifiable data relating to the cost of such work. Accepted industry formulas, recipes, methods of construction, and other industry practices would form the basis of the calculations.

• 12. It is recognized that the method of valuation provided for in paragraph 2 of Article 5 would normally not be applicable when, as a result of the further processing, the imported goods lose their identity. However, there can be instances where, although the identity of the imported goods is lost, the value added by the processing can be determined accurately without unreasonable difficulty. On the other hand, there can also be instances where the imported goods maintain their identity but form such a minor element in the goods sold in the country of importation that the use of this valuation method would be unjustified. In view of the above, each situation of this type must be considered on a case-by-case basis.

Note to Article 6

• 1. As a general rule, customs value is determined under this Agreement on the basis of information readily available in the country of importation. In order to determine a computed value, however, it may be necessary to examine the costs of producing the goods being valued and other information which has to be obtained from outside the country of importation. Furthermore, in most cases the producer of the goods will be outside the jurisdiction of the authorities of the country of importation. The use of the computed value method will generally be limited to those cases where the buyer and seller are related, and the producer is prepared to supply to the authorities of the country of importation the necessary costings and to provide facilities for any subsequent verification which may be necessary.

• 2. The “cost or value” referred to in paragraph 1a) of Article 6 is to be determined on the basis of information relating to the production of the goods being valued supplied by or on behalf of the producer. It is to be based upon the commercial accounts of the producer, provided that such accounts are consistent with the generally accepted accounting principles applied in the country where the goods are produced.

• 3. The “cost or value” shall include the cost of elements specified in paragraphs 1a)ii) and iii) of Article 8. It shall also include the value, apportioned as appropriate under the provisions of the relevant note to Article 8, of any element specified in paragraph 1b) of Article 8 which has been supplied directly or indirectly by the buyer for use in connection with the production of the imported goods. The value of the elements specified in paragraph lb)iv) of Article 8 which are undertaken in the country of importation shall be included only to the extent that such elements are charged to the producer. It is to be understood that no cost or value of the elements referred to in this paragraph shall be counted twice in determining the computed value.

• 4. The “amount for profit and general expenses” referred to in paragraph 1b) of Article 6 is to be determined on the basis of information supplied by or on behalf of the producer unless the producer's figures are inconsistent with those usually reflected in sales of goods of the same class or kind as the goods being valued which are made by producers in the country of exportation for export to the country of importation.

• 5. It should be noted in this context that the “amount for profit and general expenses” has to be taken as a whole. It follows that if, in any particular case, the producer's profit figure is low and the producer's general expenses are high, the producer's profit and general expenses taken together may nevertheless be consistent with that usually reflected in sales of goods of the same class or kind. Such a situation might occur, for example, if a product were being launched in the country of importation and the producer accepted a nil or low profit to offset high general expenses associated with the launch. Where the producer can demonstrate a low profit on sales of the imported goods because of particular commercial circumstances, the producer's actual profit figures should be taken into account provided that the producer has valid commercial reasons to justify them and the producer's pricing policy reflects usual pricing policies in the branch of industry concerned. Such a situation might occur, for example, where producers have been forced to lower prices temporarily because of an unforeseeable drop in demand, or where they sell goods to complement a range of goods being produced in the country of importation and accept a low profit to maintain competitivity. Where the producer's own figures for profit and general expenses are not consistent with those usually reflected in sales of goods of the same class or kind as the goods being valued which are made by producers in the country of exportation for export to the country of importation, the amount for profit and general expenses may be based upon relevant information other than that supplied by or on behalf of the producer of the goods.

• 6. Where information other than that supplied by or on behalf of the producer is used for the purposes of determining a computed value, the authorities of the importing country shall inform the importer, if the latter so requests, of the source of such information, the data used and the calculations based upon such data, subject to the provisions of Article 10.

• 7. The “general expenses” referred to in paragraph 1b) of Article 6 covers the direct and indirect costs of producing and selling the goods for export which are not included under paragraph 1a) of Article 6.

• 8. Whether certain goods are “of the same class or kind” as other goods must be determined on a case-by-case basis with reference to the circumstances involved. In determining the usual profits and general expenses under the provisions of Article 6, sales for export to the country of importation of the narrowest group or range of goods, which includes the goods being valued, for which the necessary information can be provided, should be examined. For the purposes of Article 6, “goods of the same class or kind” must be from the same country as the goods being valued.

Note to Article 7

• 1. Customs values determined under the provisions of Article 7 should, to the greatest extent possible, be based on previously determined customs values.

• 2. The methods of valuation to be employed under Article 7 should be those laid down in Articles 1 through 6 but a reasonable flexibility in the application of such methods would be in conformity with the aims and provisions of Article 7.

• 3. Some examples of reasonable flexibility are as follows:

  • a) Identical goods - the requirement that the identical goods should be exported at or about the same time as the goods being valued could be flexibly interpreted; identical imported goods produced in a country other than the country of exportation of the goods being valued could be the basis for customs valuation; customs values of identical imported goods already determined under the provisions of Articles 5 and 6 could be used.

  • b) Similar goods - the requirement that the similar goods should be exported at or about the same time as the goods being valued could be flexibly interpreted; similar imported goods produced in a country other than the country of exportation of the goods being valued could be the basis for customs valuation; customs values of similar imported goods already determined under the provisions of Articles 5 and 6 could be used.

  • c) Deductive method - the requirement that the goods shall have been sold in the “condition as imported” in paragraph 1a) of Article 5 could be flexibly interpreted; the “90 days” requirement could be administered flexibly.

Note to Article 8

Paragraph 1a)i)

The term “buying commissions” means fees paid by an importer to the importer's agent for the service of representing the importer abroad in the purchase of the goods being valued.

Paragraph 1b)ii)

• 1. There are two factors involved in the apportionment of the elements specified in paragraph lb)ii) of Article 8 to the imported goods - the value of the element itself and the way in which that value is to be apportioned to the imported goods. The apportionment of these elements should be made in a reasonable manner appropriate to the circumstances and in accordance with generally accepted accounting principles.

• 2. Concerning the value of the element, if the importer acquires the element from a seller not related to the importer at a given cost, the value of the element is that cost. If the element was produced by the importer or by a person related to the importer, its value would be the cost of producing it. If the element had been previously used by the importer, regardless of whether it had been acquired or produced by such importer, the original cost of acquisition or production would have to be adjusted downward to reflect its use in order to arrive at the value of the element.

• 3. Once a value has been determined for the element, it is necessary to apportion that value to the imported goods. Various possibilities exist. For example, the value might be apportioned to the first shipment if the importer wishes to pay duty on the entire value at one time. As another example, the importer may request that the value be apportioned over the number of units produced up to the time of the first shipment. As a further example, the importer may request that the value be apportioned over the entire anticipated production where contracts or firm commitments exist for that production. The method of apportionment used will depend upon the documentation provided by the importer.

• 4. As an illustration of the above, an importer provides the producer with a mould to be used in the production of the imported goods and contracts with the producer to buy 10,000 units. By the time of arrival of the first shipment of 1,000 units, the producer has already produced 4,000 units. The importer may request the customs administration to apportion the value of the mould over 1,000 units, 4,000 units or 10,000 units.

Paragraph 1b)iv)

• 1. Additions for the elements specified in paragraph lb)iv) of Article 8 should be based on objective and quantifiable data. In order to minimize the burden for both the importer and customs administration in determining the values to be added, data readily available in the buyer's commercial record system should be used in so far as possible.

• 2. For those elements supplied by the buyer which were purchased or leased by the buyer, the addition would be the cost of the purchase or the lease. No addition shall be made for those elements available in the public domain, other than the cost of obtaining copies of them.

• 3. The ease with which it may be possible to calculate the values to be added will depend on a particular firm's structure and management practice, as well as its accounting methods.

• 4. For example, it is possible that a firm which imports a variety of products from several countries maintains the records of its design centre outside the country of importation in such a way as to show accurately the costs attributable to a given product. In such cases, a direct adjustment may appropriately be made under the provisions of Article 8.

• 5. In another case, a firm may carry the cost of the design centre outside the country of importation as a general overhead expense without allocation to specific products. In this instance, an appropriate adjustment could be made under the provisions of Article 8 with respect to the imported goods by apportioning total design centre costs over total production benefiting from the design centre and adding such apportioned cost on a unit basis to imports.

• 6. Variations in the above circumstances will, of course, require different factors to be considered in determining the proper method of allocation.

• 7. In cases where the production of the element in question involves a number of countries and over a period of time, the adjustment should be limited to the value actually added to that element outside the country of importation.

Paragraph 1c)

• 1. The royalties and licence fees referred to in paragraph 1c) of Article 8 may include, among other things, payments in respect to patents, trade marks and copyrights. However, the charges for the right to reproduce the imported goods in the country of importation shall not be added to the price actually paid or payable for the imported goods in determining the customs value.

• 2. Payments made by the buyer for the right to distribute or resell the imported goods shall not be added to the price actually paid or payable for the imported goods if such payments are not a condition of the sale for export to the country of importation of the imported goods.

Paragraph 3

Where objective and quantifiable data do not exist with regard to the additions required to be made under the provisions of Article 8, the transaction value cannot be determined under the provisions of Article 1. As an illustration of this, a royalty is paid on the basis of the price in a sale in the importing country of a litre of a particular product that was imported by the kilogram and made up into a solution after importation. If the royalty is based partially on the imported goods and partially on other factors which have nothing to do with the imported goods (such as when the imported goods are mixed with domestic ingredients and are no longer separately identifiable, or when the royalty cannot be distinguished from special financial arrangements between the buyer and the seller), it would be inappropriate to attempt to make an addition for the royalty. However, if the amount of this royalty is based only on the imported goods and can be readily quantified, an addition to the price actually paid or payable can be made.

Note to Article 9

For the purposes of Article 9, “time of importation” may include the time of entry for customs purposes.

Note to Article 11

• 1. Article 11 provides the importer with the right to appeal against a valuation determination made by the customs administration for the goods being valued. Appeal may first be to a higher level in the customs administration, but the importer shall have the right in the final instance to appeal to the judiciary.

• 2. “Without penalty” means that the importer shall not be subject to a fine or threat of fine merely because the importer chose to exercise the right of appeal. Payment of normal court costs and lawyers' fees shall not be considered to be a fine.

• 3. However, nothing in Article 11 shall prevent a Member from requiring full payment of assessed customs duties prior to an appeal.

Note to Article 15

Paragraph 4

For the purposes of Article 15, the term “persons” includes a legal person, where appropriate.

Paragraph 4e)

For the purposes of this Agreement, one person shall be deemed to control another when the former is legally or operationally in a position to exercise restraint or direction over the latter.

Annex II. TECHNICAL COMMITTEE ON CUSTOMS VALUATION

• 1. In accordance with Article 18 of this Agreement, the Technical Committee shall be established under the auspices of the CCC with a view to ensuring, at the technical level, uniformity in interpretation and application of this Agreement.

• 2. The responsibilities of the Technical Committee shall include the following:

  • a. to examine specific technical problems arising in the day-to-day administration of the customs valuation system of Members and to give advisory opinions on appropriate solutions based upon the facts presented;

  • b. to study, as requested, valuation laws, procedures and practices as they relate to this Agreement and to prepare reports on the results of such studies;

  • c. to prepare and circulate annual reports on the technical aspects of the operation and status of this Agreement;

  • d. to furnish such information and advice on any matters concerning the valuation of imported goods for customs purposes as may be requested by any Member or the Committee. Such information and advice may take the form of advisory opinions, commentaries or explanatory notes;

  • e. to facilitate, as requested, technical assistance to Members with a view to furthering the international acceptance of this Agreement;

  • f. to carry out an examination of a matter referred to it by a panel under Article 19 of this Agreement; and

  • g. to exercise such other responsibilities as the Committee may assign to it.

General

• 3. The Technical Committee shall attempt to conclude its work on specific matters, especially those referred to it by Members, the Committee or a panel, in a reasonably short period of time. As provided in paragraph 4 of Article 19, a panel shall set a specific time period for receipt of a report of the Technical Committee and the Technical Committee shall provide its report within that period.

• 4. The Technical Committee shall be assisted as appropriate in its activities by the CCC Secretariat.

Representation

• 5. Each Member shall have the right to be represented on the Technical Committee. Each Member may nominate one delegate and one or more alternates to be its representatives on the Technical Committee. Such a Member so represented on the Technical Committee is referred to in this Annex as a "member of the Technical Committee". Representatives of members of the Technical Committee may be assisted by advisers. The WTO Secretariat may also attend such meetings with observer status.

• 6. Members of the CCC which are not Members of the WTO may be represented at meetings of the Technical Committee by one delegate and one or more alternates. Such representatives shall attend meetings of the Technical Committee as observers.

• 7. Subject to the approval of the Chairman of the Technical Committee, the Secretary-General of the CCC (referred to in this Annex as "the Secretary-General") may invite representatives of governments which are neither Members of the WTO nor members of the CCC and representatives of international governmental and trade organizations to attend meetings of the Technical Committee as observers.

• 8. Nominations of delegates, alternates and advisers to meetings of the Technical Committee shall be made to the Secretary-General.

Technical Committee Meetings

• 9. The Technical Committee shall meet as necessary but at least two times a year. The date of each meeting shall be fixed by the Technical Committee at its preceding session. The date of the meeting may be varied either at the request of any member of the Technical Committee concurred in by a simple majority of the members of the Technical Committee or, in cases requiring urgent attention, at the request of the Chairman. Notwithstanding the provisions in sentence 1 of this paragraph, the Technical Committee shall meet as necessary to consider matters referred to it by a panel under the provisions of Article 19 of this Agreement.

• 10. The meetings of the Technical Committee shall be held at the headquarters of the CCC unless otherwise decided.

• 11. The Secretary-General shall inform all members of the Technical Committee and those included under paragraphs 6 and 7 at least 30 days in advance, except in urgent cases, of the opening date of each session of the Technical Committee.

Agenda

• 12. A provisional agenda for each session shall be drawn up by the Secretary-General and circulated to the members of the Technical Committee and to those included under paragraphs 6 and 7 at least 30 days in advance of the session, except in urgent cases. This agenda shall comprise all items whose inclusion has been approved by the Technical Committee during its preceding session, all items included by the Chairman on the Chairman's own initiative, and all items whose inclusion has been requested by the Secretary-General, by the Committee or by any member of the Technical Committee.

• 13. The Technical Committee shall determine its agenda at the opening of each session. During the session the agenda may be altered at any time by the Technical Committee.

Officers and Conduct of Business

• 14. The Technical Committee shall elect from among the delegates of its members a Chairman and one or more Vice-Chairmen. The Chairman and Vice-Chairmen shall each hold office for a period of one year. The retiring Chairman and Vice-Chairmen are eligible for re-election. The mandate of a Chairman or Vice-Chairman who no longer represents a member of the Technical Committee shall terminate automatically.

• 15. If the Chairman is absent from any meeting or part thereof, a Vice-Chairman shall preside. In that event, the latter shall have the same powers and duties as the Chairman.

• 16. The Chairman of the meeting shall participate in the proceedings of the Technical Committee as such and not as the representative of a member of the Technical Committee.

• 17. In addition to exercising the other powers conferred upon the Chairman by these rules, the Chairman shall declare the opening and closing of each meeting, direct the discussion, accord the right to speak, and, pursuant to these rules, have control of the proceedings. The Chairman may also call a speaker to order if the speaker's remarks are not relevant.

• 18. During discussion of any matter a delegation may raise a point of order. In this event, the Chairman shall immediately state a ruling. If this ruling is challenged, the Chairman shall submit it to the meeting for decision and it shall stand unless overruled.

• 19. 19. The Secretary-General, or officers of the CCC Secretariat designated by the Secretary-General, shall perform the secretarial work of meetings of the Technical Committee.

Quorum and Voting

• 20. Representatives of a simple majority of the members of the Technical Committee shall constitute a quorum.

• 21. Each member of the Technical Committee shall have one vote. A decision of the Technical Committee shall be taken by a majority comprising at least two thirds of the members present. Regardless of the outcome of the vote on a particular matter, the Technical Committee shall be free to make a full report to the Committee and to the CCC on that matter indicating the different views expressed in the relevant discussions. Notwithstanding the above provisions of this paragraph, on matters referred to it by a panel, the Technical Committee shall take decisions by consensus. Where no agreement is reached in the Technical Committee on the question referred to it by a panel, the Technical Committee shall provide a report detailing the facts of the matter and indicating the views of the members.

Languages and Records

• 22. The official languages of the Technical Committee shall be English, French and Spanish. Speeches or statements made in any of these three languages shall be immediately translated into the other official languages unless all delegations agree to dispense with translation. Speeches or statements made in any other language shall be translated into English, French and Spanish, subject to the same conditions, but in that event the delegation concerned shall provide the translation into English, French or Spanish. Only English, French and Spanish shall be used for the official documents of the Technical Committee. Memoranda and correspondence for the consideration of the Technical Committee must be presented in one of the official languages.

• 23. The Technical Committee shall draw up a report of all its sessions and, if the Chairman considers it necessary, minutes or summary records of its meetings. The Chairman or a designee of the Chairman shall report on the work of the Technical Committee at each meeting of the Committee and at each meeting of the CCC.

Annex III

• 1. The five-year delay in the application of the provisions of the Agreement by developing country Members provided for in paragraph 1 of Article 20 may, in practice, be insufficient for certain developing country Members. In such cases a developing country Member may request before the end of the period referred to in paragraph 1 of Article 20 an extension of such period, it being understood that the Members will give sympathetic consideration to such a request in cases where the developing country Member in question can show good cause.

• 2. Developing countries which currently value goods on the basis of officially established minimum values may wish to make a reservation to enable them to retain such values on a limited and transitional basis under such terms and conditions as may be agreed to by the Members.

• 3. Developing countries which consider that the reversal of the sequential order at the request of the importer provided for in Article 4 of the Agreement may give rise to real difficulties for them may wish to make a reservation to Article 4 in the following terms:

  "The Government of ........ reserves the right to provide that the relevant provision of Article 4 of the Agreement shall apply only when the customs authorities agree to the request to reverse the order of Articles 5 and 6."

  If developing countries make such a reservation, the Members shall consent to it under Article 21 of the Agreement.

• 4. Developing countries may wish to make a reservation with respect to paragraph 2 of Article 5 of the Agreement in the following terms:

  "The Government of ........ reserves the right to provide that paragraph 2 of Article 5 of the Agreement shall be applied in accordance with the provisions of the relevant note thereto whether or not the importer so requests."

  If developing countries make such a reservation, the Members shall consent to it under Article 21 of the Agreement.

• 5. Certain developing countries may have problems in the implementation of Article 1 of the Agreement insofar as it relates to importations into their countries by sole agents, sole distributors and sole concessionaires. If such problems arise in practice in developing country Members applying the Agreement, a study of this question shall be made, at the request of such Members, with a view to finding appropriate solutions.

• 6. Article 17 recognizes that in applying the Agreement, customs administrations may need to make enquiries concerning the truth or accuracy of any statement, document or declaration presented to them for customs valuation purposes. The Article thus acknowledges that enquiries may be made which are, for example, aimed at verifying that the elements of value declared or presented to customs in connection with a determination of customs value are complete and correct. Members, subject to their national laws and procedures, have the right to expect the full cooperation of importers in these enquiries.

• 7. The price actually paid or payable includes all payments actually made or to be made as a condition of sale of the imported goods, by the buyer to the seller, or by the buyer to a third party to satisfy an obligation of the seller.

Agreement on preshipment inspection

Members,

Noting that Ministers on 20 September 1986 agreed that the Uruguay Round of Multilateral Trade Negotiations shall aim to "bring about further liberalization and expansion of world trade", "strengthen the role of GATT" and "increase the responsiveness of the GATT system to the evolving international economic environment";

Noting that a number of developing country Members have recourse to preshipment inspection;

Recognizing the need of developing countries to do so for as long and in so far as it is necessary to verify the quality, quantity or price of imported goods;

Mindful that such programmes must be carried out without giving rise to unnecessary delays or unequal treatment;

Noting that this inspection is by definition carried out on the territory of exporter Members;

Recognizing the need to establish an agreed international framework of rights and obligations of both user Members and exporter Members;

Recognizing that the principles and obligations of GATT 1994 apply to those activities of preshipment inspection entities that are mandated by governments that are Members of the WTO;

Recognizing that it is desirable to provide transparency of the operation of preshipment inspection entities and of laws and regulations relating to preshipment inspection;

Desiring to provide for the speedy, effective and equitable resolution of disputes between exporters and preshipment inspection entities arising under this Agreement;

Hereby agree as follows:

Article 1. Coverage - Definitions

• 1 This Agreement shall apply to all preshipment inspection activities carried out on the territory of Members, whether such activities are contracted or mandated by the government, or any government body, of a Member.

• 2 The term "user Member" means a Member of which the government or any government body contracts for or mandates the use of preshipment inspection activities.

• 3 Preshipment inspection activities are all activities relating to the verification of the quality, the quantity, the price, including currency exchange rate and financial terms, and/or the customs classification of goods to be exported to the territory of the user Member.

• 4 The term "preshipment inspection entity" is any entity contracted or mandated by a Member to carry out preshipment inspection activities.'55

Article 2. Obligations of User Members

Non-discrimination

• 1 User Members shall ensure that preshipment inspection activities are carried out in a non-discriminatory manner, and that the procedures and criteria employed in the conduct of these activities are objective and are applied on an equal basis to all exporters affected by such activities. They shall ensure uniform performance of inspection by all the inspectors of the preshipment inspection entities contracted or mandated by them.

Governmental Requirements

• 2 User Members shall ensure that in the course of preshipment inspection activities relating to their laws, regulations and requirements, the provisions of paragraph 4 of Article III of GATT 1994 are respected to the extent that these are relevant.

Site of Inspection

• 3 User Members shall ensure that all preshipment inspection activities, including the issuance of a Clean Report of Findings or a note of non-issuance, are performed in the customs territory from which the goods are exported or, if the inspection cannot be carried out in that customs territory given the complex nature of the products involved, or if both parties agree, in the customs territory in which the goods are manufactured.

Standards

• 4 User Members shall ensure that quantity and quality inspections are performed in accordance with the standards defined by the seller and the buyer in the purchase agreement and that, in the absence of such standards, relevant international standards56apply.

Transparency

• 5 User Members shall ensure that preshipment inspection activities are conducted in a transparent manner.

• 6 User Members shall ensure that, when initially contacted by exporters, preshipment inspection entities provide to the exporters a list of all the information which is necessary for the exporters to comply with inspection requirements. The preshipment inspection entities shall provide the actual information when so requested by exporters. This information shall include a reference to the laws and regulations of user Members relating to preshipment inspection activities, and shall also include the procedures and criteria used for inspection and for price and currency exchange-rate verification purposes, the exporters' rights vis-à-vis the inspection entities, and the appeals procedures set up under paragraph 21. Additional procedural requirements or changes in existing procedures shall not be applied to a shipment unless the exporter concerned is informed of these changes at the time the inspection date is arranged. However, in emergency situations of the types addressed by Articles XX and XXI of GATT 1994, such additional requirements or changes may be applied to a shipment before the exporter has been informed. This assistance shall not, however, relieve exporters from their obligations in respect of compliance with the import regulations of the user Members.

• 7 User Members shall ensure that the information referred to in paragraph 6 is made available to exporters in a convenient manner, and that the preshipment inspection offices maintained by preshipment inspection entities serve as information points where this information is available.

• 8 User Members shall publish promptly all applicable laws and regulations relating to preshipment inspection activities in such a manner as to enable other governments and traders to become acquainted with them.

Protection of Confidential Business Information

• 9 User Members shall ensure that preshipment inspection entities treat all information received in the course of the preshipment inspection as business confidential to the extent that such information is not already published, generally available to third parties, or otherwise in the public domain. User Members shall ensure that preshipment inspection entities maintain procedures to this end.

• 10 User Members shall provide information to Members on request on the measures they are taking to give effect to paragraph 9. The provisions of this paragraph shall not require any Member to disclose confidential information the disclosure of which would jeopardize the effectiveness of the preshipment inspection programmes or would prejudice the legitimate commercial interest of particular enterprises, public or private.

• 11 User Members shall ensure that preshipment inspection entities do not divulge confidential business information to any third party, except that preshipment inspection entities may share this information with the government entities that have contracted or mandated them. User Members shall ensure that confidential business information which they receive from preshipment inspection entities contracted or mandated by them is adequately safeguarded. Preshipment inspection entities shall share confidential business information with the governments contracting or mandating them only to the extent that such information is customarily required for letters of credit or other forms of payment or for customs, import licensing or exchange control purposes.

• 12 User Members shall ensure that preshipment inspection entities do not request exporters to provide information regarding:

  • a) manufacturing data related to patented, licensed or undisclosed processes, or to processes for which a patent is pending;

  • b) unpublished technical data other than data necessary to demonstrate compliance with technical regulations or standards;

  • c) internal pricing, including manufacturing costs;

  • d) profit levels;

  • e) the terms of contracts between exporters and their suppliers unless it is not otherwise possible for the entity to conduct the inspection in question. In such cases, the entity shall only request the information necessary for this purpose.

• 13 The information referred to in paragraph 12, which preshipment inspection entities shall not otherwise request, may be released voluntarily by the exporter to illustrate a specific case.

Conflicts of Interest

• 14 User Members shall ensure that preshipment inspection entities, bearing in mind also the provisions on protection of confidential business information in paragraphs 9 through 13, maintain procedures to avoid conflicts of interest:

  • a) between preshipment inspection entities and any related entities of the preshipment inspection entities in question, including any entities in which the latter have a financial or commercial interest or any entities which have a financial interest in the preshipment inspection entities in question, and whose shipments the preshipment inspection entities are to inspect;

  • b) between preshipment inspection entities and any other entities, including other entities subject to preshipment inspection, with the exception of the government entities contracting or mandating the inspections;

  • c) with divisions of preshipment inspection entities engaged in activities other than those required to carry out the inspection process.

Delays

• 15 User Members shall ensure that preshipment inspection entities avoid unreasonable delays in inspection of shipments. User Members shall ensure that, once a preshipment inspection entity and an exporter agree on an inspection date, the preshipment inspection entity conducts the inspection on that date unless it is rescheduled on a mutually agreed basis between the exporter and the preshipment inspection entity, or the preshipment inspection entity is prevented from doing so by the exporter or by force majeure.57

• 16 User Members shall ensure that, following receipt of the final documents and completion of the inspection, preshipment inspection entities, within five working days, either issue a Clean Report of Findings or provide a detailed written explanation specifying the reasons for non-issuance. User Members shall ensure that, in the latter case, preshipment inspection entities give exporters the opportunity to present their views in writing and, if exporters so request, arrange for re-inspection at the earliest mutually convenient date.

• 17 User Members shall ensure that, whenever so requested by the exporters, preshipment inspection entities undertake, prior to the date of physical inspection, a preliminary verification of price and, where applicable, of currency exchange rate, on the basis of the contract between exporter and importer, the pro forma invoice and, where applicable, the application for import authorization. User Members shall ensure that a price or currency exchange rate that has been accepted by a preshipment inspection entity on the basis of such preliminary verification is not withdrawn, providing the goods conform to the import documentation and/or import licence. They shall ensure that, after a preliminary verification has taken place, preshipment inspection entities immediately inform exporters in writing either of their acceptance or of their detailed reasons for non-acceptance of the price and/or currency exchange rate.

• 18 User Members shall ensure that, in order to avoid delays in payment, preshipment inspection entities send to exporters or to designated representatives of the exporters a Clean Report of Findings as expeditiously as possible.

• 19 User Members shall ensure that, in the event of a clerical error in the Clean Report of Findings, preshipment inspection entities correct the error and forward the corrected information to the appropriate parties as expeditiously as possible.

Price Verification

• 20 User Members shall ensure that, in order to prevent over- and under-invoicing and fraud, preshipment inspection entities conduct price verification58according to the following guidelines:

  • a) preshipment inspection entities shall only reject a contract price agreed between an exporter and an importer if they can demonstrate that their findings of an unsatisfactory price are based on a verification process which is in conformity with the criteria set out in subparagraphs b) through e);

  • b) the preshipment inspection entity shall base its price comparison for the verification of the export price on the price(s) of identical or similar goods offered for export from the same country of exportation at or about the same time, under competitive and comparable conditions of sale, in conformity with customary commercial practices and net of any applicable standard discounts. Such comparison shall be based on the following:

    • i) only prices providing a valid basis of comparison shall be used, taking into account the relevant economic factors pertaining to the country of importation and a country or countries used for price comparison;

    • ii) the preshipment inspection entity shall not rely upon the price of goods offered for export to different countries of importation to arbitrarily impose the lowest price upon the shipment;

    • iii) the preshipment inspection entity shall take into account the specific elements listed in subparagraph c);

    • iv) at any stage in the process described above, the preshipment inspection entity shall provide the exporter with an opportunity to explain the price;

  • c) when conducting price verification, preshipment inspection entities shall make appropriate allowances for the terms of the sales contract and generally applicable adjusting factors pertaining to the transaction; these factors shall include but not be limited to the commercial level and quantity of the sale, delivery periods and conditions, price escalation clauses, quality specifications, special design features, special shipping or packing specifications, order size, spot sales, seasonal influences, licence or other intellectual property fees, and services rendered as part of the contract if these are not customarily invoiced separately; they shall also include certain elements relating to the exporter's price, such as the contractual relationship between the exporter and importer;

  • d) the verification of transportation charges shall relate only to the agreed price of the mode of transport in the country of exportation as indicated in the sales contract;

  • e) the following shall not be used for price verification purposes:

    • i) the selling price in the country of importation of goods produced in such country;

    • ii) the price of goods for export from a country other than the country of exportation;

    • iii) the cost of production;

    • iv) arbitrary or fictitious prices or values.

Appeals Procedures

• 21 User Members shall ensure that preshipment inspection entities establish procedures to receive, consider and render decisions concerning grievances raised by exporters, and that information concerning such procedures is made available to exporters in accordance with the provisions of paragraphs 6 and 7. User Members shall ensure that the procedures are developed and maintained in accordance with the following guidelines:

  • a) preshipment inspection entities shall designate one or more officials who shall be available during normal business hours in each city or port in which they maintain a preshipment inspection administrative office to receive, consider and render decisions on exporters' appeals or grievances;

  • b) exporters shall provide in writing to the designated official(s) the facts concerning the specific transaction in question, the nature of the grievance and a suggested solution;

  • c) the designated official(s) shall afford sympathetic consideration to exporters' grievances and shall render a decision as soon as possible after receipt of the documentation referred to in subparagraph b).

Derogation

• 22 By derogation to the provisions of Article 2, user Members shall provide that, with the exception of part shipments, shipments whose value is less than a minimum value applicable to such shipments as defined by the user Member shall not be inspected, except in exceptional circumstances. This minimum value shall form part of the information furnished to exporters under the provisions of paragraph 6.

Article 3. Obligations of Exporter Members

Non-discrimination

• 1 Exporter Members shall ensure that their laws and regulations relating to preshipment inspection activities are applied in a non-discriminatory manner.

Transparency

• 2 Exporter Members shall publish promptly all applicable laws and regulations relating to preshipment inspection activities in such a manner as to enable other governments and traders to become acquainted with them.

Technical Assistance

• 3 Exporter Members shall offer to provide to user Members, if requested, technical assistance directed towards the achievement of the objectives of this Agreement on mutually agreed terms.59

Article 4. Independent Review Procedures

Members shall encourage preshipment inspection entities and exporters mutually to resolve their disputes. However, two working days after submission of the grievance in accordance with the provisions of paragraph 21 of Article 2' either party may refer the dispute to independent review. Members shall take such reasonable measures as may be available to them to ensure that the following procedures are established and maintained to this end:

• a) these procedures shall be administered by an independent entity constituted jointly by an organization representing preshipment inspection entities and an organization representing exporters for the purposes of this Agreement;

• b) the independent entity referred to in subparagraph a) shall establish a list of experts as follows:

  • i) a section of members nominated by an organization representing preshipment inspection entities;

  • ii) ii) a section of members nominated by an organization representing exporters;

  • iii) a section of independent trade experts, nominated by the independent entity referred to in subparagraph a).

  The geographical distribution of the experts on this list shall be such as to enable any disputes raised under these procedures to be dealt with expeditiously. This list shall be drawn up within two months of the entry into force of the WTO Agreement and shall be updated annually. The list shall be publicly available. It shall be notified to the Secretariat and circulated to all Members;

• c) an exporter or preshipment inspection entity wishing to raise a dispute shall contact the independent entity referred to in subparagraph a) and request the formation of a panel. The independent entity shall be responsible for establishing a panel. This panel shall consist of three members. The members of the panel shall be chosen so as to avoid unnecessary costs and delays. The first member shall be chosen from section (i) of the above list by the preshipment inspection entity concerned, provided that this member is not affiliated to that entity. The second member shall be chosen from section ii) of the above list by the exporter concerned, provided that this member is not affiliated to that exporter. The third member shall be chosen from section iii) of the above list by the independent entity referred to in subparagraph a). No objections shall be made to any independent trade expert drawn from section iii) of the above list;

• d) the independent trade expert drawn from section iii) of the above list shall serve as the chairman of the panel. The independent trade expert shall take the necessary decisions to ensure an expeditious settlement of the dispute by the panel, for instance, whether the facts of the case require the panelists to meet and, if so, where such a meeting shall take place, taking into account the site of the inspection in question;

• e) if the parties to the dispute so agree, one independent trade expert could be selected from section iii) of the above list by the independent entity referred to in subparagraph a) to review the dispute in question. This expert shall take the necessary decisions to ensure an expeditious settlement of the dispute, for instance taking into account the site of the inspection in question;

• f) the object of the review shall be to establish whether, in the course of the inspection in dispute, the parties to the dispute have complied with the provisions of this Agreement. The procedures shall be expeditious and provide the opportunity for both parties to present their views in person or in writing;

• g) decisions by a three-member panel shall be taken by majority vote. The decision on the dispute shall be rendered within eight working days of the request for independent review and be communicated to the parties to the dispute. This time-limit could be extended upon agreement by the parties to the dispute. The panel or independent trade expert shall apportion the costs, based on the merits of the case;

• h) the decision of the panel shall be binding upon the preshipment inspection entity and the exporter which are parties to the dispute.

Article 5. Notification

Members shall submit to the Secretariat copies of the laws and regulations by which they put this Agreement into force, as well as copies of any other laws and regulations relating to preshipment inspection, when the WTO Agreement enters into force with respect to the Member concerned. No changes in the laws and regulations relating to preshipment inspection shall be enforced before such changes have been officially published. They shall be notified to the Secretariat immediately after their publication. The Secretariat shall inform the Members of the availability of this information.

Article 6. Review

At the end of the second year from the date of entry into force of the WTO Agreement and every three years thereafter, the Ministerial Conference shall review the provisions, implementation and operation of this Agreement, taking into account the objectives thereof and experience gained in its operation. As a result of such review, the Ministerial Conference may amend the provisions of the Agreement.

Article 7. Consultation

Members shall consult with other Members upon request with respect to any matter affecting the operation of this Agreement. In such cases, the provisions of Article XXII of GATT 1994, as elaborated and applied by the Dispute Settlement Understanding, are applicable to this Agreement.

Article 8. Dispute Settlement

Any disputes among Members regarding the operation of this Agreement shall be subject to the provisions of Article XXIII of GATT 1994, as elaborated and applied by the Dispute Settlement Understanding.

Article 9. Final Provisions

• 1 Members shall take the necessary measures for the implementation of the present Agreement.

• 2 Members shall ensure that their laws and regulations shall not be contrary to the provisions of this Agreement.

Agreement on rules of origin

Members,

Noting that Ministers on 20 September 1986 agreed that the Uruguay Round of Multilateral Trade Negotiations shall aim to "bring about further liberalization and expansion of world trade", "strengthen the role of GATT" and "increase the responsiveness of the GATT system to the evolving international economic environment";

Desiring to further the objectives of GATT 1994;

Recognizing that clear and predictable rules of origin and their application facilitate the flow of international trade;

Desiring to ensure that rules of origin themselves do not create unnecessary obstacles to trade;

Desiring to ensure that rules of origin do not nullify or impair the rights of Members under GATT 1994;

Recognizing that it is desirable to provide transparency of laws, regulations, and practices regarding rules of origin;

Desiring to ensure that rules of origin are prepared and applied in an impartial, transparent, predictable, consistent and neutral manner;

Recognizing the availability of a consultation mechanism and procedures for the speedy, effective and equitable resolution of disputes arising under this Agreement:

Desiring to harmonize and clarify rules of origin;

Hereby agree as follows:

PART I. DEFINITIONS AND COVERAGE

Article 1. Rules of Origin

• 1 For the purposes of Parts I to IV of this Agreement, rules of origin shall be defined as those laws, regulations and administrative determinations of general application applied by any Member to determine the country of origin of goods provided such rules of origin are not related to contractual or autonomous trade regimes leading to the granting of tariff preferences going beyond the application of paragraph 1 of Article I of GATT 1994.

• 2 Rules of origin referred to in paragraph 1 shall include all rules of origin used in non-preferential commercial policy instruments, such as in the application of: most-favoured-nation treatment under Articles I, II, lIl, XI and XIII of GATT 1994; anti-dumping and countervailing duties under Article VI of GATT 1994; safeguard measures under Article XIX of GATT 1994; origin marking requirements under Article IX of GATT 1994; and any discriminatory quantitative restrictions or tariff quotas. They shall also include rules of origin used for government procurement and trade statistics.60

PART II. DISCIPLINES TO GOVERN THE APPLICATION OF RULES OF ORIGIN

Article 2. Disciplines During the Transition Period

Until the work programme for the harmonization of rules of origin set out in Part IV is completed, Members shall ensure that:

• a) when they issue administrative determinations of general application, the requirements to be fulfilled are clearly defined. In particular:

  • i) in cases where the criterion of change of tariff classification is applied, such a rule of origin, and any exceptions to the rule, must clearly specify the subheadings or headings within the tariff nomenclature that are addressed by the rule;

  • ii) in cases where the ad valorem percentage criterion is applied, the method for calculating this percentage shall also be indicated in the rules of origin;

  • iii) in cases where the criterion of manufacturing or processing operation is prescribed, the operation that confers origin on the good concerned shall be precisely specified;

• b) notwithstanding the measure or instrument of commercial policy to which they are linked, their rules of origin are not used as instruments to pursue trade objectives directly or indirectly;

• c) rules of origin shall not themselves create restrictive, distorting, or disruptive effects on international trade. They shall not pose unduly strict requirements or require the fulfilment of a certain condition not related to manufacturing or processing, as a prerequisite for the determination of the country of origin. However, costs not directly related to manufacturing or processing may be included for the purposes of the application of an ad valorem percentage criterion consistent with subparagraph (a);

• d) the rules of origin that they apply to imports and exports are not more stringent than the rules of origin they apply to determine whether or not a good is domestic and shall not discriminate between other Members, irrespective of the affiliation of the manufacturers of the good concerned61 ;

• e) their rules of origin are administered in a consistent, uniform, impartial and reasonable manner;

• f) their rules of origin are based on a positive standard. Rules of origin that state what does not confer origin (negative Standard) are permissible as part of a clarification of a positive Standard or in individual cases where a positive determination of origin is not necessary;

• g) their laws, regulations, judicial decisions and administrative rulings of general application relating to rules of origin are published as if they were subject to, and in accordance with, the provisions of paragraph 1 of Article X of GATT 1994;

• h) upon the request of an exporter, importer or any person with a justifiable cause, assessments of the origin they would accord to a good are issued as soon as possible but no later than 150 days62after a request for such an assessment provided that all necessary elements have been submitted. Requests for such assessments shall be accepted before trade in the good concerned begins and may be accepted at any later point in time. Such assessments shall remain valid for three years ρrovided that the facts and conditions, including the rules of origin, under which they have been made remain comparable. Provided that the parties concerned are informed in advance, such assessments will no longer be valid when a decision contrary to the assessment is made in a review as referred to in subparagraph j). Such assessments shall be made publicly available subject to the provisions of subparagraph k);_

• i) when introducing changes to their rules of origin or new rules of origin, they shall not apply such changes retroactively as defined in, and without prejudice to, their laws or regulations;

• j) any administrative action which they take in relation to the determination of origin is reviewable promptly by judicial, arbitral or administrative tribunals or procedures, independent of the authority issuing the determination, which can effect the modification or reversal of the determination;

• k) all information that is by nature confidential or that is provided on a confidential basis for the purpose of the application of rules of origin is treated as strictly confidential by the authorities concerned, which shall not disclose it without the specific permission of the person or government providing such information, except to the extent that it may be required to be disclosed in the context of judicial proceedings.

Article 3. Disciplines after the Transition Period

Taking into account the aim of all Members to achieve, as a result of the harmonization work programme set out in Part IV, the establishment of harmonized rules of origin, Members shall ensure, upon the implementation of the results of the harmonization work programme, that:

• a) they apply rules of origin equally for all purposes as set out in Article 1;

• b) under their rules of origin, the country to be determined as the origin of a particular good is either the country where the good has been wholly obtained or, when more than one country is concerned in the production of the good, the country where the last substantial transformation has been carried out;

• c) the rules of origin that they apply to imports and exports are not more stringent than the rules of origin they apply to determine whether or not a good is domestic and shall not discriminate between other Members, irrespective of the affiliation of the manufacturers of the good concerned;

• d) the rules of origin are administered in a consistent, uniform, impartial and reasonable manner;

• e) their laws, regulations, judicial decisions and administrative rulings of general application relating to rules of origin are published as if they were subject to, and in accordance with, the provisions of paragraph 1 of Article X of GATT 1994;

• f) upon the request of an exporter, importer or any person with a justifiable cause, assessments of the origin they would accord to a good are issued as soon as possible but no later than 150 days after a request for such an assessment provided that all necessary elements have been submitted. Requests for such assessments shall be accepted before trade in the good concerned begins and may be accepted at any later point in time. Such assessments shall remain valid for three years provided that the facts and conditions, including the rules of origin, under which they have been made remain comparable. Provided that the parties concerned are informed in advance, such assessments will no longer be valid when a decision contrary to the assessment is made in a review as referred to in subparagraph h). Such assessments shall be made publicly available subject to the provisions of subparagraph i);

• g) when introducing changes to their rules of origin or new rules of origin, they shall not apply such changes retroactively as defined in, and without prejudice to, their laws or regulations;

• h) any administrative action which they take in relation to the determination of origin is reviewable promptly by judicial, arbitral or administrative tribunals or procedures, independent of the authority issuing the determination, which can effect the modification or reversal of the determination;

• i) all information which is by nature confidential or which is provided on a confidential basis for the purpose of the application of rules of origin is treated as strictly confidential by the authorities concerned, which shall not disclose it without the specific permission of the person or government providing such information, except to the extent that it may be required to be disclosed in the context of judicial proceedings.

PART III. PROCEDURAL ARRANGEMENTS ON NOTIFICATION, REVIEW, CONSULTATION AND DISPUTE SETTLEMENT

Article 4. Institutions

• 1 There is hereby established a Committee on Rules of Origin (referred to in this Agreement as "the Committee") composed of the representatives from each of the Members. The Committee shall elect its own Chairman and shall meet as necessary, but not less than once a year, for the purpose of affording Members the opportunity to consult on matters relating to the operation of Parts I, II, III and IV or the furtherance of the objectives set out in these Parts and to carry out such other responsibilities assigned to it under this Agreement or by the Council for Trade in Goods. Where appropriate, the Committee shall request information and advice from the Technical Committee referred to in paragraph 2 on matters related to this Agreement. The Committee may also request such other work from the Technical Committee as it considers appropriate for the furtherance of the above-mentioned objectives of this Agreement. The WTO Secretariat shall act as the secretariat to the Committee.

• 2 There shall be established a Technical Committee on Rules of Origin (referred to in this Agreement as "the Technical Committee") under the auspices of the Customs Co-operation Council (CCC) as set out in Annex I. The Technical Committee shall carry out the technical work called for in Part IV and prescribed in Annex I. Where appropriate, the Technical Committee shall request information and advice from the Committee on matters related to this Agreement. The Technical Committee may also request such other work from the Committee as it considers appropriate for the furtherance of the above-mentioned objectives of the Agreement. The CCC Secretariat shall act as the secretariat to the Technical Committee.

Article 5. Information and Procedures for Modification and Introduction of New Rules of Origin

• 1 Each Member shall provide to the Secretariat, within 90 days after the date of entry into force of the WTO Agreement for it, its rules of origin, judicial decisions, and administrative rulings of general application relating to rules of origin in effect on that date. If by inadvertence a rule of origin has not been provided, the Member concerned shall provide it immediately after this fact becomes known. Lists of information received and available with the Secretariat shall be circulated to the Members by the Secretariat.

• 2 During the period referred to in Article 2, Members introducing modifications, other thande minimismodifications, to their rules of origin or introducing new rules of origin, which, for the purpose of this Article, shall include any rule of origin referred to in paragraph 1 and not provided to the Secretariat, shall publish a notice to that effect at least 60 days before the entry into force of the modified or new rule in such a manner as to enable interested parties to become acquainted with the intention to modify a rule of origin or to introduce a new rule of origin, unless exceptional circumstances arise or threaten to arise for a Member. In these exceptional cases, the Member shall publish the modified or new rule as soon as possible.

Article 6. Review

• 1 The Committee shall review annually the implementation and operation of Parts II and III of this Agreement having regard to its objectives. The Committee shall annually inform the Council for Trade in Goods of developments during the period covered by such reviews.

• 2 The Committee shall review the provisions of Parts I, II and III and propose amendments as necessary to reflect the results of the harmonization work programme.

• 3 The Committee, in cooperation with the Technical Committee, shall set up a mechanism to consider and propose amendments to the results of the harmonization work programme, taking into account the objectives and principles set out in Article 9. This may include instances where the rules need to be made more operational or need to be updated to take into account new production processes as affected by any technological change.

Article 7. Consultation

The provisions of Article XXII of GATT 1994, as elaborated and applied by the Dispute Settlement Understanding, are applicable to this Agreement.

Article 8. Dispute Settlement

The provisions of Article XXIII of GATT 1994, as elaborated and applied by the Dispute Settlement Understanding, are applicable to this Agreement.

PART IV. HARMONIZATION OF RULES OF ORIGIN

Article 9. Objectives and Principles

• 1 With the objectives of harmonizing rules of origin and, inter alia, providing more certainty in the conduct of world trade, the Ministerial Conference shall undertake the work programme set out below in conjunction with the CCC, on the basis of the following principles:

  • a) rules of origin should be applied equally for all purposes as set out in Article 1;

  • b) rules of origin should provide for the country to be determined as the origin of a particular good to be either the country where the good has been wholly obtained or, when more than one country is concerned in the production of the good, the country where the last substantial transformation has been carried out;

  • c) rules of origin should be objective, understandable and predictable;

  • d) notwithstanding the measure or instrument to which they may be linked, rules of origin should not be used as instruments to pursue trade objectives directly or indirectly. They should not themselves create restrictive, distorting or disruptive effects on international trade. They should not pose unduly strict requirements or require the fulfilment of a certain condition not relating to manufacturing or processing as a pre-requisite for the determination of the country of origin. However, costs not directly related to manufacturing or processing may be included for purposes of the application of an ad valorem percentage criterion;

  • e) rules of origin should be administrable in a consistent, uniform, impartial and reasonable manner;

  • f) rules of origin should be coherent;

  • g) rules of origin should be based on a positive standard. Negative standards may be used to clarify a positive standard.

Work Programme

• 2

  • a) The work programme shall be initiated as soon after the entry into force of the WTO Agreement as possible and will be completed within three years of initiation.

  • b) The Committee and the Technical Committee provided for in Article 4 shall be the appropriate bodies to conduct this work.

  • c) To provide for detailed input by the CCC, the Committee shall request the Technical Committee to provide its interpretations and opinions resulting from the work described below on the basis of the principles listed in paragraph 1. To ensure timely completion of the work programme for harmonization, such work shall be conducted on a product sector basis, as represented by various chapters or sections of the Harmonized System (HS) nomenclature.

    • i) Wholly Obtained and Minimal Operations or ProcessesThe Technical Committee shall develop harmonized definitions of:

      • - the goods that are to be considered as being wholly obtained in one country. This work shall be as detailed as possible;

      • - minimal operations or processes that do not by themselves confer origin to a good.

      The results of this work shall be submitted to the Committee within three months of receipt of the request from the Committee.

    • ii) Substantial Transformation - Change in Tariff Classification

      • - The Technical Committee shall consider and elaborate upon, on the basis of the criterion of substantial transformation, the use of change in tariff subheading or heading when developing rules of origin for particular products or a product sector and, if appropriate, the minimum change within the nomenclature that meets this criterion.

      • - The Technical Committee shall divide the above work on a product basis taking into account the chapters or sections of the HS nomenclature, so as to submit results of its work to the Committee at least on a quarterly basis. The Technical Committee shall complete the above work within one year and three months from receipt of the request of the Committee.

    • iii) Substantial Transformation - Supplementary Criteria

      Upon completion of the work under subparagraph ii) for each product sector or individual product category where the exclusive use of the HS nomenclature does not allow for the expression of substantial transformation, the Technical Committee:

      • - shall consider and elaborate upon, on the basis of the criterion of substantial transformation, the use, in a supplementary or exclusive manner, of other requirements, including ad valorem percentages63and/or manufacturing or processing operations64, when developing rules of origin for particular products or a product sector;

      • - may provide explanations for its proposals;

      • - shall divide the above work on a product basis taking into account the chapters or sections of the HS nomenclature, so as to submit results of its work to the Committee at least on a quarterly basis. The Technical Committee shall complete the above work within two years and three months of receipt of the request from the Committee.

Role of the Committee

• 3 On the basis of the principles listed in paragraph 1:

  • a) the Committee shall consider the interpretations and opinions of the Technical Committee periodically in accordance with the time-frames provided in subparagraphs i), ii) and iii) of paragraph 2c) with a view to endorsing such interpretations and opinions. The Committee may request the Technical Committee to refine or elaborate its work and/or to develop new approaches. To assist the Technical Committee, the Committee should provide its reasons for requests for additional work and, as appropriate, suggest alternative approaches;

  • b) upon completion of all the work identified in subparagraphs i), ii) and iii) of paragraph 2c), the Committee shall consider the results in terms of their overall coherence.

Results of the Harmonization Work Programme and Subsequent Work

• 4 The Ministerial Conference shall establish the results of the harmonization work programme in an annex as an integral part of this Agreement.65The Ministerial Conference shall establish a time-frame for the entry into force of this annex.

Annex I. Technical committee on rules of origin

Responsibilities

• 1. The ongoing responsibilities of the Technical Committee shall include the following:

  • a) at the request of any member of the Technical Committee, to examine specific technical problems arising in the day-to-day administration of the rules of origin of Members and to give advisory opinions on appropriate solutions based upon the facts presented;

  • b) to furnish information and advice on any matters concerning the origin determination of goods as may be requested by any Member or the Committee;

  • c) to prepare and circulate periodic reports on the technical aspects of the operation and status of this Agreement; and

  • d) to review annually the technical aspects of the implementation and operation of Parts II and III.

• 2. The Technical Committee shall exercise such other responsibilities as the Committee may request of it.

• 3. The Technical Committee shall attempt to conclude its work on specific matters, especially those referred to it by Members or the Committee, in a reasonably short period of time.

Representation

• 4. Each Member shall have the right to be represented on the Technical Committee. Each Member may nominate one delegate and one or more alternates to be its representatives on the Technical Committee. Such a Member so represented on the Technical Committee is hereinafter referred to as a "member" of the Technical Committee. Representatives of members of the Technical Committee may be assisted by advisers at meetings of the Technical Committee. The WTO Secretariat may also attend such meetings with observer status.

• 5. Members of the CCC which are not Members of the WTO may be represented at meetings of the Technical Committee by one delegate and one or more alternates. Such representatives shall attend meetings of the Technical Committee as observers.

• 6. Subject to the approval of the Chairman of the Technical Committee, the Secretary-General of the CCC (referred to in this Annex as "the Secretary-General") may invite representatives of governments which are neither Members of the WTO nor members of the CCC and representatives of international governmental and trade organizations to attend meetings of the Technical Committee as observers.

• 7. Nominations of delegates, alternates and advisers to meetings of the Technical Committee shall be made to the Secretary-General.

Meetings

• 8. The Technical Committee shall meet as necessary, but not less than once a year.

Procedures

• 9. The Technical Committee shall elect its own Chairman and shall establish its own procedures.

Annex II. Common declaration with regard to preferential rules of origin

• 1. Recognizing that some Members apply preferential rules of origin, distinct from non-preferential rules of origin, the Members hereby agree follows.

• 2. For the purposes of this Common Declaration, preferential rules of origin shall be defined as those laws, regulations and administrative determinations of general application applied by any Member to determine whether goods qualify for preferential treatment under contractual or autonomous trade regimes leading to the granting of tariff preferences going beyond the application of paragraph 1 of Article I of GATT 1994.

• 3. The Members agree to ensure that:

  • a) when they issue administrative determinations of general application, the requirements to be fulfilled are clearly defined. In particular:

    • i) in cases where the criterion of change of tariff classification is applied, such a preferential rule of origin, and any exceptions to the rule, must clearly specify the subheadings or headings within the tariff nomenclature that are addressed by the rule;

    • ii) in cases where the ad valorem percentage criterion is applied, the method for calculating this percentage shall also be indicated in the preferential rules of origin;

    • iii) in cases where the criterion of manufacturing or processing operation is prescribed, the operation that confers preferential origin shall be precisely specified;

  • b) their preferential rules of origin are based on a positive standard. Preferential rules of origin that state what does not confer preferential origin (negative standard) are permissible as part of a clarification of a positive standard or in individual cases where a positive determination of preferential origin is not necessary;

  • c) their laws, regulations, judicial decisions and administrative rulings of general application relating to preferential rules of origin are published as if they were subject to, and in accordance with, the provisions of paragraph 1 of Article X of GATT 1994;

  • d) upon request of an exporter, importer or any person with a justifiable cause, assessments of the preferential origin they would accord to a good are issued as soon as possible but no later than 150 days66after a request for such an assessment provided that all necessary elements have been submitted. Requests for such assessments shall be accepted before trade in the good concerned begins and may be accepted at any later point in time. Such assessments shall remain valid for three years provided that the facts and conditions, including the preferential rules of origin, under which they have been made remain comparable. Provided that the parties concerned are informed in advance, such assessments will no longer be valid when a decision contrary to the assessment is made in a review as referred to in subparagraph f). Such assessments shall be made publicly available subject to the provisions of subparagraph g);

  • e) when introducing changes to their preferential rules of origin or new preferential rules of origin, they shall not apply such changes retroactively as defined in, and without prejudice to, their laws or regulations;

  • f) any administrative action which they take in relation to the determination of preferential origin is reviewable promptly by judicial, arbitral or administrative tribunals or procedures, independent of the authority issuing the determination, which can effect the modification or reversal of the determination;

  • g) all information that is by nature confidential or that is provided on a confidential basis for the purpose of the application of preferential rules of origin is treated as strictly confidential by the authorities concerned, which shall not disclose it without the specific permission of the person or government providing such information, except to the extent that it may be required to be disclosed in the context of judicial proceedings.

• 4. Members agree to provide to the Secretariat promptly their preferential rules of origin, including a listing of the preferential arrangements to which they apply, judicial decisions, and administrative rulings of general application relating to their preferential rules of origin in effect on the date of entry into force of the WTO Agreement for the Member concerned. Furthermore, Members agree to provide any modifications to their preferential rules of origin or new preferential rules of origin as soon as possible to the Secretariat. Lists of information received and available with the Secretariat shall be circulated to the Members by the Secretariat.

Agreement on import licensing procedures

Members,

Having regard to the Multilateral Trade Negotiations;

Desiring to further the objectives of GATT 1994;

Taking into account the particular trade, development and financial needs of developing country Members;

Recognizing the usefulness of automatic import licensing for certain purposes and that such licensing should not be used to restrict trade;

Recognizing that import licensing may be employed to administer measures such as those adopted pursuant to the relevant provisions of GATT 1994;

Recognizing the provisions of GATT 1994 as they apply to import licensing procedures;

Desiring to ensure that import licensing procedures are not utilized in a manner contrary to the principles and obligations of GATT 1994;

Recognizing that the flow of international trade could be impeded by the inappropriate use of import licensing procedures;

Convinced that import licensing, particularly non-automatic import licensing, should be implemented in a transparent and predictable manner;

Recognizing that non-automatic licensing procedures should be no more administratively burdensome than absolutely necessary to administer the relevant measure;

Desiring to simplify, and bring transparency to, the administrative procedures and practices used in international trade, and to ensure the fair and equitable application and administration of such procedures and practices;

Desiring to provide for a consultative mechanism and the speedy, effective and equitable resolution of disputes arising under this Agreement;

Hereby agree as follows:

Article 1. General Provisions

• 1 For the purpose of this Agreement, import licensing is defined as administrative procedures67used for the operation of import licensing regimes requiring the submission of an application or other documentation (other than that required for customs purposes) to the relevant administrative body as a prior condition for importation into the customs territory of the importing Member.

• 2 Members shall ensure that the administrative procedures used to implement import licensing regimes are in conformity with the relevant provisions of GATT 1994 including its annexes and protocols, as interpreted by this Agreement, with a view to preventing trade distortions that may arise from an inappropriate operation of those procedures, taking into account the economic development purposes and financial and trade needs of developing country Members.68

• 3 The rules for import licensing procedures shall be neutral in application and administered in a fair and equitable manner.

• 4

  • a) The rules and all information concerning procedures for the submission of applications, including the eligibility of persons, firms and institutions to make such applications, the administrative body(ies) to be approached, and the lists of products subject to the licensing requirement shall be published, in the sources notified to the Committee on Import Licensing provided for in Article 4 (referred to in this Agreement as "the Committee"), in such a manner as to enable governments69and traders to become acquainted with them. Such publication shall take place, whenever practicable, 21 days prior to the effective date of the requirement but in all events not later than such effective date. Any exception, derogations or changes in or from the rules concerning licensing procedures or the list of products subject to import licensing shall also be published in the same manner and within the same time periods as specified above. Copies of these publications shall also be made available to the Secretariat.

  • b) Members which wish to make comments in writing shall be provided the opportunity to discuss these comments upon request. The concerned Member shall give due consideration to these comments and results of discussion.

• 5 Application forms and, where applicable, renewal forms shall be as simple as possible. Such documents and information as are considered strictly necessary for the proper functioning of the licensing regime may be required on application.

• 6 Application procedures and, where applicable, renewal procedures shall be as simple as possible. Applicants shall be allowed a reasonable period for the submission of licence applications. Where there is a closing date, this period should be at least 21 days with provision for extension in circumstances where insufficient applications have been received within this period. Applicants shall have to approach only one administrative body in connection with an application. Where it is strictly indispensable to approach more than one administrative body, applicants shall not need to approach more than three administrative bodies.

• 7 No application shall be refused for minor documentation errors which do not alter basic data contained therein. No penalty greater than necessary to serve merely as a warning shall be imposed in respect of any omission or mistake in documentation or procedures which is obviously made without fraudulent intent or gross negligence.

• 8 Licensed imports shall not be refused for minor variations in value, quantity or weight from the amount designated on the licence due to differences occurring during shipment, differences incidental to bulk loading and other minor differences consistent with normal commercial practice.

• 9 The foreign exchange necessary to pay for licensed imports shall be made available to licence holders on the same basis as to importers of goods not requiring import licences.

• 10 With regard to security exceptions, the provisions of Article XXI of GATT 1994 apply.

• 11 The provisions of this Agreement shall not require any Member to disclose confidential information which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private.

Article 2. Automatic Import Licensing70

• 1 Automatic import licensing is defined as import licensing where approval of the application is granted in all cases, and which is in accordance with the requirements of paragraph 2a).

• 2 The following provisions71, in addition to those in paragraphs 1 through 11 of Article 1 and paragraph 1 of this Article, shall apply to automatic import licensing procedures:

  • a) automatic licensing procedures shall not be administered in such a manner as to have restricting effects on imports subject to automatic licensing. Automatic licensing procedures shall be deemed to have traderestricting effects unless, inter alia:

    • i) any person, firm or institution which fulfils the legal requirements of the importing Member for engaging in import operations involving products subject to automatic licensing is equally eligible to apply for and to obtain import licences;

    • ii) applications for licences may be submitted on any working day prior to the customs clearance of the goods;

    • iii) applications for licences when submitted in appropriate and complete form are approved immediately on receipt, to the extent administratively feasible, but within a maximum of 10 working days;

  • b) Members recognize that automatic import licensing may be necessary whenever other appropriate procedures are not available. Automatic import licensing may be maintained as long as the circumstances which gave rise to its introduction prevail and as long as its underlying administrative purposes cannot be achieved in a more appropriate way.

Article 3. Non-Automatic Import Licensing

• 1 The following provisions, in addition to those in paragraphs 1 through 11 of Article 1, shall apply to non-automatic import licensing procedures. Non-automatic import licensing procedures are defined as import licensing not falling within the definition contained in paragraph 1 of Article 2.

• 2 Non-automatic licensing shall not have trade-restrictive or -distortive effects on imports additional to those caused by the imposition of the restriction. Non-automatic licensing procedures shall correspond in scope and duration to the measure they are used to implement, and shall be no more administratively burdensome than absolutely necessary to administer the measure.

• 3 In the case of licensing requirements for purposes other than the implementation of quantitative restrictions, Members shall publish sufficient information for other Members and traders to know the basis for granting and/or allocating licences.

• 4 Where a Member provides the possibility for persons, firms or institutions to request exceptions or derogations from a licensing requirement, it shall include this fact in the information published under paragraph 4 of Article 1 as well as information on how to make such a request and, to the extent possible, an indication of the circumstances under which requests would be considered.

• 5

  • a) Members shall provide, upon the request of any Member having an interest in the trade in the product concerned, all relevant information concerning:

    • i) the administration of the restrictions;

    • ii) the import licences granted over a recent period;

    • iii) the distribution of such licences among supplying countries;

    • iv) where practicable, import statistics (i.e. value and/or volume) with respect to the products subject to import licensing. Developing country Members would not be expected to take additional administrative or financial burdens on this account;

  • b) Members administering quotas by means of licensing shall publish the overall amount of quotas to be applied by quantity and/or value, the opening and closing dates of quotas, and any change thereof, within the time periods specified in paragraph 4 of Article 1 and in such a manner as to enable governments and traders to become acquainted with them;

  • c) in the case of quotas allocated among supplying countries, the Member applying the restrictions shall promptly inform all other Members having an interest in supplying the product concerned of the shares in the quota currently allocated, by quantity or value, to the various supplying countries and shall publish this information within the time periods specified in paragraph 4 of Article 1 and in such a manner as to enable governments and traders to become acquainted with them;

  • d) where situations arise which make it necessary to provide for an early opening date of quotas, the information referred to in paragraph 4 of Article 1 should be published within the time-periods specified in paragraph 4 of Article 1 and in such a manner as to enable governments and traders to become acquainted with them;

  • e) any person, firm or institution which fulfils the legal and administrative requirements of the importing Member shall be equally eligible to apply and to be considered for a licence. If the licence application is not approved, the applicant shall, on request, be given the reason therefor and shall have a right of appeal or review in accordance with the domestic legislation or procedures of the importing Member;

  • f) the period for processing applications shall, except when not possible for reasons outside the control of the Member, not be longer than 30 days if applications are considered as and when received, i.e. on a first-come first-served basis, and no longer than 60 days if all applications are considered simultaneously. In the latter case, the period for processing applications shall be considered to begin on the day following the closing date of the announced application period;

  • g) the period of licence validity shall be of reasonable duration and not be so short as to preclude imports. The period of licence validity shall not preclude imports from distant sources, except in special cases where imports are necessary to meet unforeseen short-term requirements;

  • h) when administering quotas, Members shall not prevent importation from being effected in accordance with the issued licences, and shall not discourage the full utilization of quotas;

  • i) when issuing licences, Members shall take into account the desirability of issuing licences for products in economic quantities;

  • j) in allocating licences, the Member should consider the import performance of the applicant. In this regard, consideration should be given as to whether licences issued to applicants in the past have been fully utilized during a recent representative period. In cases where licences have not been fully utilized, the Member shall examine the reasons for this and take these reasons into consideration when allocating new licences. Consideration shall also be given to ensuring a reasonable distribution of licences to new importers, taking into account the desirability of issuing licences for products in economic quantities. In this regard, special consideration should be given to those importers importing products originating in developing country Members and, in particular, the least-developed country Members;

  • k) in the case of quotas administered through licences which are not allocated among supplying countries, licence holders72shall be free to choose the sources of imports. In the case of quotas allocated among supplying countries, the licence shall clearly stipulate the country or countries;

  • l) in applying paragraph 8 of Article 1, compensating adjustments may be made in future licence allocations where imports exceeded a previous licence level.

Article 4. Institutions

There is hereby established a Committee on Import Licensing composed of representatives from each of the Members. The Committee shall elect its own Chairman and Vice-Chairman and shall meet as necessary for the purpose of affording Members the opportunity of consulting on any matters relating to the operation of this Agreement or the furtherance of its objectives.

Article 5. Notification

• 1 Members which institute licensing procedures or changes in these procedures shall notify the Committee of such within 60 days of publication.

• 2 Notifications of the institution of import licensing procedures shall include the following information:

  • a) list of products subject to licensing procedures;

  • b) contact point for information on eligibility;

  • c) administrative body(ies) for submission of applications;

  • d) date and name of publication where licensing procedures are published;

  • e) indication of whether the licensing procedure is automatic or nonautomatic according to definitions contained in Articles 2 and 3;

  • f) in the case of automatic import licensing procedures, their administrative purpose;

  • g) in the case of non-automatic import licensing procedures, indication of the measure being implemented through the licensing procedure; and

  • h) expected duration of the licensing procedure if this can be estimated with some probability, and if not, reason why this information cannot be provided.

• 3 Notifications of changes in import licensing procedures shall indicate the elements mentioned above, if changes in such occur.

• 4 Members shall notify the Committee of the publication(s) in which the information required in paragraph 4 of Article 1 will be published.

• 5 Any interested Member which considers that another Member has not notified the institution of a licensing procedure or changes therein in accordance with the provisions of paragraphs 1 through 3 may bring the matter to the attention of such other Member. If notification is not made promptly thereafter, such Member may itself notify the licensing procedure or changes therein, including all relevant and available information.

Article 6. Consultation and Dispute Settlement

Consultations and the settlement of disputes with respect to any matter affecting the operation of this Agreement shall be subject to the provisions of Articles XXII and XXIII of GATT 1994, as elaborated and applied by the Dispute Settlement Understanding.

Article 7. Review

• 1 The Committee shall review as necessary, but at least once every two years, the implementation and operation of this Agreement, taking into account the objectives thereof, and the rights and obligations contained therein.

• 2 As a basis for the Committee review, the Secretariat shall prepare a factual report based on information provided under Article 5, responses to the annual questionnaire on import licensing procedures73and other relevant reliable information which is available to it. This report shall provide a synopsis of the aforementioned information, in particular indicating any changes or developments during the period under review, and including any other information as agreed by the Committee.

• 3 Members undertake to complete the annual questionnaire on import licensing procedures promptly and in full.

• 4 The Committee shall inform the Council for Trade in Goods of developments during the period covered by such reviews.

Article 8. Final Provisions

Reservations

• 1 Reservations may not be entered in respect of any of the provisions of this Agreement without the consent of the other Members.

Domestic Legislation

• 2

  • a) Each Member shall ensure, not later than the date of entry into force of the WTO Agreement for it, the conformity of its laws, regulations and administrative procedures with the provisions of this Agreement.

  • b) Each Member shall inform the Committee of any changes in its laws and regulations relevant to this Agreement and in the administration of such laws and regulations.

Agreement on subsidies and countervailing measures

Members hereby agree as follows:

PART I: . GENERAL PROVISIONS

Article I. Definition of a Subsidy

• 1.1 For the purpose of this Agreement, a subsidy shall be deemed to exist if:

  • a) 1 there is a financial contribution by a government or any public body within the territory of a Member (referred to in this Agreement as "government"), i.e. where:

    • i) a government practice involves a direct transfer of funds (e.g. grants, loans, and equity infusion), potential direct transfers of funds or liabilities (e.g. loan guarantees);

    • ii) government revenue that is otherwise due is foregone or not collected (e.g. fiscal incentives such as tax credits)74;

    • iii) a government provides goods or services other than general infrastructure, or purchases goods;

    • iv) a government makes payments to a funding mechanism, or entrusts or directs a private body to carry out one or more of the type of functions illustrated in i) to iii) above which would normally be vested in the government and the practice, in no real sense, differs from practices normally followed by governments;

    or

  • a) 2 there is any form of income or price support in the sense of Article XVI of GATT 1994;

    and

  • b) a benefit is thereby conferred.

• 1.2 A subsidy as defined in paragraph 1 shall be subject to the provisions of Part II or shall be subject to the provisions of Part III or V only if such a subsidy is specific in accordance with the provisions of Article 2.

Article 2. Specificity

• 2.1 In order to determine whether a subsidy, as defined in paragraph 1 of Article 1, is specific to an enterprise or industry or group of enterprises or industries (referred to in this Agreement as "certain enterprises") within the jurisdiction of the granting authority, the following principles shall apply:

  • a) Where the granting authority, or the legislation pursuant to which the granting authority operates, explicitly limits access to a subsidy to certain enterprises, such subsidy shall be specific.

  • b) Where the granting authority, or the legislation pursuant to which the granting authority operates, establishes objective criteria or conditions75governing the eligibility for, and the amount of, a subsidy, specificity shall not exist, provided that the eligibility is automatic and that such criteria and conditions are strictly adhered to. The criteria or conditions must be clearly spelled out in law, regulation, or other official document, so as to be capable of verification.

  • c) If, notwithstanding any appearance of non-specificity resulting from the application of the principles laid down in subparagraphs a) and b), there are reasons to believe that the subsidy may in fact be specific, other factors may be considered. Such factors are: use of a subsidy programme by a limited number of certain enterprises, predominant use by certain enterprises, the granting of disproportionately large amounts of subsidy to certain enterprises, and the manner in which discretion has been exercised by the granting authority in the decision to grant a subsidy.76In applying this subparagraph, account shall be taken of the extent of diversification of economic activities within the jurisdiction of the granting authority, as well as of the length of time during which the subsidy programme has been in operation.

• 2.2 A subsidy which is limited to certain enterprises located within a designated geographical region within the jurisdiction of the granting authority shall be specific. It is understood that the setting or change of generally applicable tax rates by all levels of government entitled to do so shall not be deemed to be a specific subsidy for the purposes of this Agreement.

• 2.3 Any subsidy falling under the provisions of Article 3 shall be deemed to be specific.

• 2.4 Any determination of specificity under the provisions of this Article shall be clearly substantiated on the basis of positive evidence.

PART II:. PROHIBITED SUBSIDIES

Article 3. Prohibition

• 3.1 Except as provided in the Agreement on Agriculture, the following subsidies, within the meaning of Article 1, shall be prohibited:

  • a) subsidies contingent, in law or in fact77, whether solely or as one of several other conditions, upon export performance, including those illustrated in Annex I78;

  • b) subsidies contingent, whether solely or as one of several other conditions, upon the use of domestic over imported goods.

• 3.2 A Member shall neither grant nor maintain subsidies referred to in paragraph 1.

Article 4. Remedies

• 4.1 Whenever a Member has reason to believe that a prohibited subsidy is being granted or maintained by another Member, such Member may request consultations with such other Member.

• 4.2 A request for consultations under paragraph 1 shall include a statement of available evidence with regard to the existence and nature of the subsidy in question.

• 4.3 Upon request for consultations under paragraph 1, the Member believed to be granting or maintaining the subsidy in question shall enter into such consultations as quickly as possible. The purpose of the consultations shall be to clarify the facts of the situation and to arrive at a mutually agreed solution.

• 4.4 If no mutually agreed solution has been reached within 30 days79 of the request for consultations, any Member party to such consultations may refer the matter to the Dispute Settlement Body ("DSB") for the immediate establishment of a panel, unless the DSB decides by consensus not to establish a panel.

• 4.5 Upon its establishment, the panel may request the assistance of the Permanent Group of Experts80(referred to in this Agreement as the "PGE") with regard to whether the measure in question is a prohibited subsidy. If so requested, the PGE shall immediately review the evidence with regard to the existence and nature of the measure in question and shall provide an opportunity for the Member applying or maintaining the measure to demonstrate that the measure in question is not a prohibited subsidy. The PGE shall report its conclusions to the panel within a timelimit determined by the panel. The PGE's conclusions on the issue of whether or not the measure in question is a prohibited subsidy shall be accepted by the panel without modification.

• 4.6 The panel shall submit its final report to the parties to the dispute. The report shall be circulated to all Members within 90 days of the date of the composition and the establishment of the panel's terms of reference.

• 4.7 If the measure in question is found to be a prohibited subsidy, the panel shall recommend that the subsidizing Member withdraw the subsidy without delay. In this regard, the panel shall specify in its recommendation the time-period within which the measure must be withdrawn.

• 4.8 Within 30 days of the issuance of the panel's report to all Members, the report shall be adopted by the DSB unless one of the parties to the dispute formally notifies the DSB of its decision to appeal or the DSB decides by consensus not to adopt the report.

• 4.9 Where a panel report is appealed, the Appellate Body shall issue its decision within 30 days from the date when the party to the dispute formally notifies its intention to appeal. When the Appellate Body considers that it cannot provide its report within 30 days, it shall inform the DSB in writing of the reasons for the delay together with an estimate of the period within which it will submit its report. In no case shall the proceedings exceed 60 days. The appellate report shall be adopted by the DSB and unconditionally accepted by the parties to the dispute unless the DSB decides by consensus not to adopt the appellate report within 20 days following its issuance to the Members.81

• 4.10 In the event the recommendation of the DSB is not followed within the time-period specified by the panel, which shall commence from the date of adoption of the panel's report or the Appellate Body's report, the DSB shall grant authorization to the complaining Member to take appropriate82countermeasures, unless the DSB decides by consensus to reject the request.

• 4.11 In the event a party to the dispute requests arbitration under paragraph 6 of Article 22 of the Dispute Settlement Understanding ("DSU"), the arbitrator shall determine whether the countermeasures are appropriate.83

• 4.12 For purposes of disputes conducted pursuant to this Article, except for time-periods specifically prescribed in this Article, timeperiods applicable under the DSU for the conduct of such disputes shall be half the time prescribed therein.

PART III. ACTIONABLE SUBSIDIES

Article 5. Adverse Effects

No Member should cause, through the use of any subsidy referred to in paragraphs 1 and 2 of Article 1, adverse effects to the interests of other Members, i.e.:

• a) injury to the domestic industry of another Member84;

• b) nullification or impairment of benefits accruing directly or indirectly to other Members under GATT 1994 in particular the benefits of concessions bound under Article II of GATT 199485;

• c) serious prejudice to the interests of another Member.86

This Article does not apply to subsidies maintained on agricultural products as provided in Article 13 of the Agreement on Agriculture.

Article 6. Serious Prejudice

• 6.1 Serious prejudice in the sense of paragraph c) of Article 5 shall be deemed to exist in the case of:

  • a) the total ad valorem subsidization87of a product exceeding 5 per cent88;

  • b) subsidies to cover operating losses sustained by an industry;

  • c) subsidies to cover operating losses sustained by an enterprise, other than one-time measures which are non-recurrent and cannot be repeated for that enterprise and which are given merely to provide time for the development of long-term solutions and to avoid acute social problems;

  • d) direct forgiveness of debt, i.e. forgiveness of government-held debt, and grants to cover debt repayment.89

• 6.2 Notwithstanding the provisions of paragraph 1, serious prejudice shall not be found if the subsidizing Member demonstrates that the subsidy in question has not resulted in any of the effects enumerated in paragraph 3.

• 6.3 Serious prejudice in the sense of paragraph c) of Article 5 may arise in any case where one or several of the following apply:

  • a) the effect of the subsidy is to displace or impede the imports of a like product of another Member into the market of the subsidizing Member;

  • b) the effect of the subsidy is to displace or impede the exports of a like product of another Member from a third country market;

  • c) the effect of the subsidy is a significant price undercutting by the subsidized product as compared with the price of a like product of another Member in the same market or significant price suppression, price depression or lost sales in the same market;

  • d) the effect of the subsidy is an increase in the world market share of the subsidizing Member in a particular subsidized primary product or commodity90as compared to the average share it had during the previous period of three years and this increase follows a consistent trend over a period when subsidies have been granted.

• 6.4 For the purpose of paragraph 3b), the displacement or impeding of exports shall include any case in which, subject to the provisions of paragraph 7, it has been demonstrated that there has been a change in relative shares of the market to the disadvantage of the non-subsidized like product (over an appropriately representative period sufficient to demonstrate clear trends in the development of the market for the product concerned, which, in normal circumstances, shall be at least one year). "Change in relative shares of the market" shall include any of the following situations: a)there is an increase in the market share of the subsidized product; b) the market share of the subsidized product remains constant in circumstances in which, in the absence of the subsidy, it would have declined; c) the market share of the subsidized product declines, but at a slower rate than would have been the case in the absence of the subsidy.

• 6.5 For the purpose of paragraph 3c), price undercutting shall include any case in which such price undercutting has been demonstrated through a comparison of prices of the subsidized product with prices of a nonsubsidized like product supplied to the same market. The comparison shall be made at the same level of trade and at comparable times, due account being taken of any other factor affecting price comparability. However, if such a direct comparison is not possible, the existence of price undercutting may be demonstrated on the basis of export unit values.

• 6.6 Each Member in the market of which serious prejudice is alleged to have arisen shall, subject to the provisions of paragraph 3 of Annex V, make available to the parties to a dispute arising under Article 7, and to the panel established pursuant to paragraph 4 of Article 7, all relevant information that can be obtained as to the changes in market shares of the parties to the dispute as well as concerning prices of the products involved.

• 6.7 Displacement or impediment resulting in serious prejudice shall not arise under paragraph 3 where any of the following circumstances exist91during the relevant period:

  • a) prohibition or restriction on exports of the like product from the complaining Member or on imports from the complaining Member into the third country market concerned;

  • b) decision by an importing government operating a monopoly of trade or state trading in the product concerned to shift, for noncommercial reasons, imports from the complaining Member to another country or countries;

  • c) natural disasters, strikes, transport disruptions or other force majeure substantially affecting production, qualities, quantities or prices of the product available for export from the complaining Member;

  • d) existence of arrangements limiting exports from the complaining Member;

  • e) voluntary decrease in the availability for export of the product concerned from the complaining Member (including, inter alia, a situation where firms in the complaining Member have been autonomously reallocating exports of this product to new markets);

  • f) failure to conform to standards and other regulatory requirements in the importing country.

• 6.8 In the absence of circumstances referred to in paragraph 7, the existence of serious prejudice should be determined on the basis of the information submitted to or obtained by the panel, including information submitted in accordance with the provisions of Annex V.

• 6.9 This Article does not apply to subsidies maintained on agricultural products as provided in Article 13 of the Agreement on Agriculture.

Article 7. Remedies

• 7.1 Except as provided in Article 13 of the Agreement on Agriculture, whenever a Member has reason to believe that any subsidy referred to in Article 1, granted or maintained by another Member, results in injury to its domestic industry, nullification or impairment or serious prejudice, such Member may request consultations with such other Member.

• 7.2 A request for consultations under paragraph 1 shall include a statement of available evidence with regard to a) the existence and nature of the subsidy in question, and b) the injury caused to the domestic industry, or the nullification or impairment, or serious prejudice92 caused to the interests of the Member requesting consultations.

• 7.3 Upon request for consultations under paragraph 1, the Member believed to be granting or maintaining the subsidy practice in question shall enter into such consultations as quickly as possible. The purpose of the consultations shall be to clarify the facts of the situation and to arrive at a mutually agreed solution.

• 7.4 If consultations do not result in a mutually agreed solution within 60 days93, any Member party to such consultations may refer the matter to the DSB for the establishment of a panel, unless the DSB decides by consensus not to establish a panel. The composition of the panel and its terms of reference shall be established within 15 days from the date when it is established.

• 7.5 The panel shall review the matter and shall submit its final report to the parties to the dispute. The report shall be circulated to all Members within 120 days of the date of the composition and establishment of the panel's terms of reference.

• 7.6 Within 30 days of the issuance of the panel's report to all Members, the report shall be adopted by the DSB94unless one of the parties to the dispute formally notifies the DSB of its decision to appeal or the DSB decides by consensus not to adopt the report.

• 7.7 Where a panel report is appealed, the Appellate Body shall issue its decision within 60 days from the date when the party to the dispute formally notifies its intention to appeal. When the Appellate Body considers that it cannot provide its report within 60 days, it shall inform the DSB in writing of the reasons for the delay together with an estimate of the period within which it will submit its report. In no case shall the proceedings exceed 90 days. The appellate report shall be adopted by the DSB and unconditionally accepted by the parties to the dispute unless the DSB decides by consensus not to adopt the appellate report within 20 days following its issuance to the Members.95

• 7.8 Where a panel report or an Appellate Body report is adopted in which it is determined that any subsidy has resulted in adverse effects to the interests of another Member within the meaning of Article 5, the Member granting or maintaining such subsidy shall take appropriate steps to remove the adverse effects or shall withdraw the subsidy.

• 7.9 In the event the Member has not taken appropriate steps to remove the adverse effects of the subsidy or withdraw the subsidy within six months from the date when the DSB adopts the panel report or the Appellate Body report, and in the absence of agreement on compensation, the DSB shall grant authorization to the complaining Member to take countermeasures, commensurate with the degree and nature of the adverse effects determined to exist, unless the DSB decides by consensus to reject the request.

• 7.10 In the event that a party to the dispute requests arbitration under paragraph 6 of Article 22 of the DSU, the arbitrator shall determine whether the countermeasures are commensurate with the degree and nature of the adverse effects determined to exist.

PART IV. NON-ACTIONABLE SUBSIDIES

Article 8. Identification of Non-Actionable Subsidies

• 8.1 The following subsidies shall be considered as non-actionable96

  • a) subsidies which are not specific within the meaning of Article 2;

  • b) subsidies which are specific within the meaning of Article 2 but which meet all of the conditions provided for in paragraphs 2a), 2b) or 2c) below.

• 8.2 Notwithstanding the provisions of Parts III and V, the following subsidies shall be non-actionable:

  • a) assistance for research activities conducted by firms or by higher education or research establishments on a contract basis with firms if:9798

    ,99 the assistance covers100not more than 75 per cent of the costs of industrial research101or 50 per cent of the costs of pre-competitive development activity102103and provided that such assistance is limited exclusively to:

    • i) costs of personnel (researchers, technicians and other supporting staff employed exclusively in the research activity);

    • ii) costs of instruments, equipment, land and buildings used exclusively and permanently (except when disposed of on a commercial basis) for the research activity;

    • iii) costs of consultancy and equivalent services used exclusively for the research activity, including bought-in research, technical knowledge, patents, etc.;

    • iv) additional overhead costs incurred directly as a result of the research activity;

    • v) other running costs (such as those of materials, supplies and the like), incurred directly as a result of the research activity,

  • b) assistance to disadvantaged regions within the territory of a Member given pursuant to a general framework of regional development104 and non-specific (within the meaning of Article 2) within eligible regions provided that:

    • i) each disadvantaged region must be a clearly designated contiguous geographical area with a definable economic and administrative identity;

    • ii) the region is considered as disadvantaged on the basis of neutral and objective criteria105, indicating that the region's difficulties arise out of more than temporary circumstances; such criteria must be clearly spelled out in law, regulation, or other official document, so as to be capable of verification;

    • iii) the criteria shall include a measurement of economic development which shall be based on at least one of the following factors:

      • - one of either income per capita or household income per capita, or GDP per capita, which must not be above 85 per cent of the average for the territory concerned;

      • - unemployment rate, which must be at least 110 per cent of the average for the territory concerned;

      as measured over a three-year period; such measurement, however, may be a composite one and may include other factors,

  • c) assistance to promote adaptation of existing facilities106to new environmental requirements imposed by law and/or regulations which result in greater constraints and financial burden on firms, provided that the assistance:

    • i) is a one-time non-recurring measure; and

    • ii) is limited to 20 per cent of the cost of adaptation; and

    • iii) does not cover the cost of replacing and operating the assisted investment, which must be fully borne by firms; and

    • iv) is directly linked to and proportionate to a firm's planned reduction of nuisances and pollution, and does not cover any manufacturing cost savings which may be achieved; and

    • v) is available to all firms which can adopt the new equipment and/or production processes.

• 8.3 A subsidy programme for which the provisions of paragraph 2 are invoked shall be notified in advance of its implementation to the Committee in accordance with the provisions of Part VII. Any such notification shall be sufficiently precise to enable other Members to evaluate the consistency of the programme with the conditions and criteria provided for in the relevant provisions of paragraph 2. Members shall also provide the Committee with yearly updates of such notifications, in particular by supplying information on global expenditure for each programme, and on any modification of the programme. Other Members shall have the right to request information about individual cases of subsidization under a notified programme.107

• 8.4 Upon request of a Member, the Secretariat shall review a notification made pursuant to paragraph 3 and, where necessary, may require additional information from the subsidizing Member concerning the notified programme under review. The Secretariat shall report its findings to the Committee. The Committee shall, upon request, promptly review the findings of the Secretariat (or, if a review by the Secretariat has not been requested, the notification itself), with a view to determining whether the conditions and criteria laid down in paragraph 2 have not been met. The procedure provided for in this paragraph shall be completed at the latest at the first regular meeting of the Committee following the notification of a subsidy programme, provided that at least two months have elapsed between such notification and the regular meeting of the Committee. The review procedure described in this paragraph shall also apply, upon request, to substantial modifications of a programme notified in the yearly updates referred to in paragraph 3.

• 8.5 Upon the request of a Member, the determination by the Committee referred to in paragraph 4, or a failure by the Committee to make such a determination, as well as the violation, in individual cases, of the conditions set out in a notified programme, shall be submitted to binding arbitration. The arbitration body shall present its conclusions to the Members within 120 days from the date when the matter was referred to the arbitration body. Except as otherwise provided in this paragraph, the DSU shall apply to arbitrations conducted under this paragraph.

Article 9. Consultations and Authorized Remedies

• 9.1 If, in the course of implementation of a programme referred to in paragraph 2 of Article 8, notwithstanding the fact that the programme is consistent with the criteria laid down in that paragraph, a Member has reasons to believe that this programme has resulted in serious adverse effects to the domestic industry of that Member, such as to cause damage which would be difficult to repair, such Member may request consultations with the Member granting or maintaining the subsidy.

• 9.2 Upon request for consultations under paragraph 1, the Member granting or maintaining the subsidy programme in question shall enter into such consultations as quickly as possible. The purpose of the consultations shall be to clarify the facts of the situation and to arrive at a mutually acceptable solution.

• 9.3 If no mutually acceptable solution has been reached in consultations under paragraph 2 within 60 days of the request for such consultations, the requesting Member may refer the matter to the Committee.

• 9.4 Where a matter is referred to the Committee, the Committee shall immediately review the facts involved and the evidence of the effects referred to in paragraph 1. If the Committee determines that such effects exist, it may recommend to the subsidizing Member to modify this programme in such a way as to remove these effects. The Committee shall present its conclusions within 120 days from the date when the matter is referred to it under paragraph 3. In the event the recommendation is not followed within six months, the Committee shall authorize the requesting Member to take appropriate countermeasures commensurate with the nature and degree of the effects determined to exist.

PART V:. COUNTERVAILING MEASURES

Article 10. Application of Article VI of GATT1994108

Members shall take all necessary steps to ensure that the imposition of a countervailing duty109on any product of the territory of any Member imported into the territory of another Member is in accordance with the provisions of Article VI of GATT 1994 and the terms of this Agreement. Countervailing duties may only be imposed pursuant to investigations initiated110and conducted in accordance with the provisions of this Agreement and the Agreement on Agriculture.

Article 11. Initiation and Subsequent Investigation

• 11.1 Except as provided in paragraph 6, an investigation to determine the existence, degree and effect of any alleged subsidy shall be initiated upon a written application by or on behalf of the domestic industry.

• 11.2 An application under paragraph 1 shall include sufficient evidence of the existence of a) a subsidy and, if possible, its amount, b) injury within the meaning of Article VI of GATT 1994 as interpreted by this Agreement, and c) a causal link between the subsidized imports and the alleged injury. Simple assertion, unsubstantiated by relevant evidence, cannot be considered sufficient to meet the requirements of this paragraph. The application shall contain such information as is reasonably available to the applicant on the following:

  • i) the identity of the applicant and a description of the volume and value of the domestic production of the like product by the applicant. Where a written application is made on behalf of the domestic industry, the application shall identify the industry on behalf of which the application is made by a list of all known domestic producers of the like product (or associations of domestic producers of the like product) and, to the extent possible, a description of the volume and value of domestic production of the like product accounted for by such producers;

  • ii) a complete description of the allegedly subsidized product, the names of the country or countries of origin or export in question, the identity of each known exporter or foreign producer and a list of known persons importing the product in question;

  • iii) evidence with regard to the existence, amount and nature of the subsidy in question;

  • iv) evidence that alleged injury to a domestic industry is caused by subsidized imports through the effects of the subsidies; this evidence includes information on the evolution of the volume of the allegedly subsidized imports, the effect of these imports on prices of the like product in the domestic market and the consequent impact of the imports on the domestic industry, as demonstrated by relevant factors and indices having a bearing on the state of the domestic industry, such as those listed in paragraphs 2 and 4 of Article 15.

• 11.3 The authorities shall review the accuracy and adequacy of the evidence provided in the application to determine whether the evidence is sufficient to justify the initiation of an investigation.

• 11.4 An investigation shall not be initiated pursuant to paragraph 1 unless the authorities have determined, on the basis of an examination of the degree of support for, or opposition to, the application expressed111by domestic producers of the like product, that the application has been made by or on behalf of the domestic industry.112The application shall be considered to have been made "by or on behalf of the domestic industry" if it is supported by those domestic producers whose collective output constitutes more than 50 per cent of the total production of the like product produced by that portion of the domestic industry expressing either support for or opposition to the application. However, no investigation shall be initiated when domestic producers expressly supporting the application account for less than 25 per cent of total production of the like product produced by the domestic industry.

• 11.5 The authorities shall avoid, unless a decision has been made to initiate an investigation, any publicizing of the application for the initiation of an investigation.

• 11.6 If, in special circumstances, the authorities concerned decide to initiate an investigation without having received a written application by or on behalf of a domestic industry for the initiation of such investigation, they shall proceed only if they have sufficient evidence of the existence of a subsidy, injury and causal link, as described in paragraph 2, to justify the initiation of an investigation.

• 11.7 The evidence of both subsidy and injury shall be considered simultaneously a) in the decision whether or not to initiate an investigation and b) thereafter, during the course of the investigation, starting on a date not later than the earliest date on which in accordance with the provisions of this Agreement provisional measures may be applied.

• 11.8 In cases where products are not imported directly from the country of origin but are exported to the importing Member from an intermediate country, the provisions of this Agreement shall be fully applicable and the transaction or transactions shall, for the purposes of this Agreement, be regarded as having taken place between the country of origin and the importing Member.

• 11.9 An application under paragraph 1 shall be rejected and an investigation shall be terminated promptly as soon as the authorities concerned are satisfied that there is not sufficient evidence of either subsidization or of injury to justify proceeding with the case. There shall be immediate termination in cases where the amount of a subsidy is de minimis, or where the volume of subsidized imports, actual or potential, or the injury, is negligible. For the purpose of this paragraph, the amount of the subsidy shall be considered to be de minimis if the subsidy is less than 1 per cent ad valorem.

• 11.10 An investigation shall not hinder the procedures of customs clearance.

• 11.11 Investigations shall, except in special circumstances, be concluded within one year, and in no case more than 18 months, after their initiation.

Article 12. Evidence

• 12.1 Interested Members and all interested parties in a countervailing duty investigation shall be given notice of the information which the authorities require and ample opportunity to present in writing all evidence which they consider relevant in respect of the investigation in question.

  • 12.1.1 Exporters, foreign producers or interested Members receiving questionnaires used in a countervailing duty investigation shall be given at least 30 days for reply.113Due consideration should be given to any request for an extension of the 30-day period and, upon cause shown, such an extension should be granted whenever practicable.

  • 12.1.2 Subject to the requirement to protect confidential information, evidence presented in writing by one interested Member or interested party shall be made available promptly to other interested Members or interested parties participating in the investigation.

  • 12.1.3 As soon as an investigation has been initiated, the authorities shall provide the full text of the written application received under paragraph 1 of Article 11 to the known exporters114and to the authorities of the exporting Member and shall make it available, upon request, to other interested parties involved. Due regard shall be paid to the protection of confidential information, as provided for in paragraph 4.

• 12.2 Interested Members and interested parties also shall have the right, upon justification, to present information orally. Where such information is provided orally, the interested Members and interested parties subsequently shall be required to reduce such submissions to writing. Any decision of the investigating authorities can only be based on such information and arguments as were on the written record of this authority and which were available to interested Members and interested parties participating in the investigation, due account having been given to the need to protect confidential information.

• 12.3 The authorities shall whenever practicable provide timely opportunities for all interested Members and interested parties to see all information that is relevant to the presentation of their cases, that is not confidential as defined in paragraph 4, and that is used by the authorities in a countervailing duty investigation, and to prepare presentations on the basis of this information.

• 12.4 Any information which is by nature confidential (for example, because its disclosure would be of significant competitive advantage to a competitor or because its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom the supplier acquired the information), or which is provided on a confidential basis by parties to an investigation shall, upon good cause shown, be treated as such by the authorities. Such information shall not be disclosed without specific permission of the party submitting it.115

  • 12.4.1 The authorities shall require interested Members or interested parties providing confidential information to furnish nonconfidential summaries thereof. These summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. In exceptional circumstances, such Members or parties may indicate that such information is not susceptible of summary. In such exceptional circumstances, a statement of the reasons why summarization is not possible must be provided.

  • 12.4.2 If the authorities find that a request for confidentiality is not warranted and if the supplier of the information is either unwilling to make the information public or to authorize its disclosure in generalized or summary form, the authorities may disregard such information unless it can be demonstrated to their satisfaction from appropriate sources that the information is correct.116

• 12.5 Except in circumstances provided for in paragraph 7, the authorities shall during the course of an investigation satisfy themselves as to the accuracy of the information supplied by interested Members or interested parties upon which their findings are based.

• 12.6 The investigating authorities may carry out investigations in the territory of other Members as required, provided that they have notified in good time the Member in question and unless that Member objects to the investigation. Further, the investigating authorities may carry out investigations on the premises of a firm and may examine the records of a firm if a) the firm so agrees and b) the Member in question is notified and does not object. The procedures set forth in Annex VI shall apply to investigations on the premises of a firm. Subject to the requirement to protect confidential information, the authorities shall make the results of any such investigations available, or shall provide disclosure thereof pursuant to paragraph 8, to the firms to which they pertain and may make such results available to the applicants.

• 12.7 In cases in which any interested Member or interested party refuses access to, or otherwise does not provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determinations, affirmative or negative, may be made on the basis of the facts available.

• 12.8 The authorities shall, before a final determination is made, inform all interested Members and interested parties of the essential facts under consideration which form the basis for the decision whether to apply definitive measures. Such disclosure should take place in sufficient time for the parties to defend their interests.

• 12.9 For the purposes of this Agreement, "interested parties" shall include:

  • i) an exporter or foreign producer or the importer of a product subject to investigation, or a trade or business association a majority of the members of which are producers, exporters or importers of such product; and

  • ii) a producer of the like product in the importing Member or a trade and business association a majority of the members of which produce the like product in the territory of the importing Member.

  This list shall not preclude Members from allowing domestic or foreign parties other than those mentioned above to be included as interested parties.

• 12.10 The authorities shall provide opportunities for industrial users of the product under investigation, and for representative consumer organizations in cases where the product is commonly sold at the retail level, to provide information which is relevant to the investigation regarding subsidization, injury and causality.

• 12.11 The authorities shall take due account of any difficulties experienced by interested parties, in particular small companies, in supplying information requested, and shall provide any assistance practicable.

• 12.12 The procedures set out above are not intended to prevent the authorities of a Member from proceeding expeditiously with regard to initiating an investigation, reaching preliminary or final determinations, whether affirmative or negative, or from applying provisional or final measures, in accordance with relevant provisions of this Agreement.

Article 13. Consultations

• 13.1 As soon as possible after an application under Article 11 is accepted, and in any event before the initiation of any investigation, Members the products of which may be subject to such investigation shall be invited for consultations with the aim of clarifying the situation as to the matters referred to in paragraph 2 of Article 11 and arriving at a mutually agreed solution.

• 13.2 Furthermore, throughout the period of investigation, Members the products of which are the subject of the investigation shall be afforded a reasonable opportunity to continue consultations, with a view to clarifying the factual situation and to arriving at a mutually agreed solution.117

• 13.3 Without prejudice to the obligation to afford reasonable opportunity for consultation, these provisions regarding consultations are not intended to prevent the authorities of a Member from proceeding expeditiously with regard to initiating the investigation, reaching preliminary or final determinations, whether affirmative or negative, or from applying provisional or final measures, in accordance with the provisions of this Agreement.

• 13.4 The Member which intends to initiate any investigation or is conducting such an investigation shall permit, upon request, the Member or Members the products of which are subject to such investigation access to non-confidential evidence, including the non-confidential summary of confidential data being used for initiating or conducting the investigation.

Article 14. Calculation of the Amount of a Subsidy in Terms of the Benefit to the Recipient

For the purpose of Part V, any method used by the investigating authority to calculate the benefit to the recipient conferred pursuant to paragraph 1 of Article 1 shall be provided for in the national legislation or implementing regulations of the Member concerned and its application to each particular case shall be transparent and adequately explained. Furthermore, any such method shall be consistent with the following guidelines:

• a) government provision of equity capital shall not be considered as conferring a benefit, unless the investment decision can be regarded as inconsistent with the usual investment practice (including for the provision of risk capital) of private investors in the territory of that Member;

• b) a loan by a government shall not be considered as conferring a benefit, unless there is a difference between the amount that the firm receiving the loan pays on the government loan and the amount the firm would pay on a comparable commercial loan which the firm could actually obtain on the market. In this case the benefit shall be the difference between these two amounts;

• c) a loan guaranteed by a government shall not be considered as conferring a benefit, unless there is a difference between the amount that the firm receiving the guarantee pays on a loan guaranteed by the government and the amount that the firm would pay on a comparable commercial loan absent the government guarantee. In this case the benefit shall be the difference between these two amounts adjusted for any differences in fees;

• d) the provision of goods or services or purchase of goods by a government shall not be considered as conferring a benefit unless the provision is made for less than adequate remuneration, or the purchase is made for more than adequate remuneration. The adequacy of remuneration shall be determined in relation to prevailing market conditions for the good or service in question in the country of provision or purchase (including price, quality, availability, marketability, transportation and other conditions of purchase or sale).

Article 15. Determination of Injury118

• 15.1 A determination of injury for purposes of Article VI of GATT 1994 shall be based on positive evidence and involve an objective examination of both a) the volume of the subsidized imports and the effect of the subsidized imports on prices in the domestic market for like products119and b) the consequent impact of these imports on the domestic producers of such products.

• 15.2 With regard to the volume of the subsidized imports, the investigating authorities shall consider whether there has been a significant increase in subsidized imports, either in absolute terms or relative to production or consumption in the importing Member. With regard to the effect of the subsidized imports on prices, the investigating authorities shall consider whether there has been a significant price undercutting by the subsidized imports as compared with the price of a like product of the importing Member, or whether the effect of such imports is otherwise to depress prices to a significant degree or to prevent price increases, which otherwise would have occurred, to a significant degree. No one or several of these factors can necessarily give decisive guidance.

• 15.3 Where imports of a product from more than one country are simultaneously subject to countervailing duty investigations, the investigating authorities may cumulatively assess the effects of such imports only if they determine that a) the amount of subsidization established in relation to the imports from each country is more than de minimis as defined in paragraph 9 of Article 11 and the volume of imports from each country is not negligible and b) a cumulative assessment of the effects of the imports is appropriate in light of the conditions of competition between the imported products and the conditions of competition between the imported products and the like domestic product.

• 15.4 The examination of the impact of the subsidized imports on the domestic industry shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including actual and potential decline in output, sales, market share, profits, productivity, return on investments, or utilization of capacity; factors affecting domestic prices; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments and, in the case of agriculture, whether there has been an increased burden on government support programmes. This list is not exhaustive, nor can one or several of these factors necessarily give decisive guidance.

• 15.5 It must be demonstrated that the subsidized imports are, through the effects120of subsidies, causing injury within the meaning of this Agreement. The demonstration of a causal relationship between the subsidized imports and the injury to the domestic industry shall be based on an examination of all relevant evidence before the authorities. The authorities shall also examine any known factors other than the subsidized imports which at the same time are injuring the domestic industry, and the injuries caused by these other factors must not be attributed to the subsidized imports. Factors which may be relevant in this respect include, inter alia, the volumes and prices of non-subsidized imports of the product in question, contraction in demand or changes in the patterns of consumption, trade restrictive practices of and competition between the foreign and domestic producers, developments in technology and the export performance and productivity of the domestic industry.

• 15.6 The effect of the subsidized imports shall be assessed in relation to the domestic production of the like product when available data permit the separate identification of that production on the basis of such criteria as the production process, producers' sales and profits. If such separate identification of that production is not possible, the effects of the subsidized imports shall be assessed by the examination of the production of the narrowest group or range of products, which includes the like product, for which the necessary information can be provided.

• 15.7 A determination of a threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility. The change in circumstances which would create a situation in which the subsidy would cause injury must be clearly foreseen and imminent. In making a determination regarding the existence of a threat of material injury, the investigating authorities should consider, inter alia, such factors as:

  • i) nature of the subsidy or subsidies in question and the trade effects likely to arise therefrom;

  • ii) a significant rate of increase of subsidized imports into the domestic market indicating the likelihood of substantially increased importation;

  • iii) sufficient freely disposable, or an imminent, substantial increase in, capacity of the exporter indicating the likelihood of substantially increased subsidized exports to the importing Member's market, taking into account the availability of other export markets to absorb any additional exports;

  • iv) whether imports are entering at prices that will have a significant depressing or suppressing effect on domestic prices, and would likely increase demand for further imports; and

  • v) inventories of the product being investigated.

  No one of these factors by itself can necessarily give decisive guidance but the totality of the factors considered must lead to the conclusion that further subsidized exports are imminent and that, unless protective action is taken, material injury would occur.

• 15.8 With respect to cases where injury is threatened by subsidized imports, the application of countervailing measures shall be considered and decided with special care.

Article 16. Definition of Domestic Industry

• 16.1 For the purposes of this Agreement, the term "domestic industry" shall, except as provided in paragraph 2, be interpreted as referring to the domestic producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion of the total domestic production of those products, except that when producers are related121to the exporters or importers or are themselves importers of the allegedly subsidized product or a like product from other countries, the term "domestic industry" may be interpreted as referring to the rest of the producers.

• 16.2 In exceptional circumstances, the territory of a Member may, for the production in question, be divided into two or more competitive markets and the producers within each market may be regarded as a separate industry if a) the producers within such market sell all or almost all of their production of the product in question in that market, and b) the demand in that market is not to any substantial degree supplied by producers of the product in question located elsewhere in the territory. In such circumstances, injury may be found to exist even where a major portion of the total domestic industry is not injured, provided there is a concentration of subsidized imports into such an isolated market and provided further that the subsidized imports are causing injury to the producers of all or almost all of the production within such market.

• 16.3 When the domestic industry has been interpreted as referring to the producers in a certain area, i.e. a market as defined in paragraph 2, countervailing duties shall be levied only on the products in question consigned for final consumption to that area. When the constitutional law of the importing Member does not permit the levying of countervailing duties on such a basis, the importing Member may levy the countervailing duties without limitation only if a) the exporters shall have been given an opportunity to cease exporting at subsidized prices to the area concerned or otherwise give assurances pursuant to Article 18, and adequate assurances in this regard have not been promptly given, and b) such duties cannot be levied only on products of specific producers which supply the area in question.

• 16.4 Where two or more countries have reached under the provisions of paragraph 8a) of Article XXIV of GATT 1994 such a level of integration that they have the characteristics of a single, unified market, the industry in the entire area of integration shall be taken to be the domestic industry referred to in paragraphs 1 and 2.

• 16.5 The provisions of paragraph 6 of Article 15 shall be applicable to this Article.

Article 17. Provisional Measures

• 17.1 Provisional measures may be applied only if:

  • a) an investigation has been initiated in accordance with the provisions of Article 11, a public notice has been given to that effect and interested Members and interested parties have been given adequate opportunities to submit information and make comments;

  • b) a preliminary affirmative determination has been made that a subsidy exists and that there is injury to a domestic industry caused by subsidized imports; and

  • c) the authorities concerned judge such measures necessary to prevent injury being caused during the investigation.

• 17.2 Provisional measures may take the form of provisional countervailing duties guaranteed by cash deposits or bonds equal to the amount of the provisionally calculated amount of subsidization.

• 17.3 Provisional measures shall not be applied sooner than 60 days from the date of initiation of the investigation.

• 17.4 The application of provisional measures shall be limited to as short a period as possible, not exceeding four months.

• 17.5 The relevant provisions of Article 19 shall be followed in the application of provisional measures.

Article 18. Undertakings

• 18.1 Proceedings may122 be suspended or terminated without the imposition of provisional measures or coutervailing duties upon receipt of satisfactory voluntary undertakings under which:

  • a) the government of the exporting Member agrees to eliminate or limit the subsidy or take other measures concerning its effects; or

  • b) the exporter agrees to revise its prices so that the investigating authorities are satisfied that the injurious effect of the subsidy is eliminated. Price increases under such undertakings shall not be higher than necessary to eliminate the amount of the subsidy. It is desirable that the price increases be less than the amount of the subsidy if such increases would be adequate to remove the injury to the domestic industry.

• 18.2 Undertakings shall not be sought or accepted unless the authorities of the importing Member have made a preliminary affirmative determination of subsidization and injury caused by such subsidization and, in case of undertakings from exporters, have obtained the consent of the exporting Member.

• 18.3 Undertakings offered need not be accepted if the authorities of the importing Member consider their acceptance impractical, for example if the number of actual or potential exporters is too great, or for other reasons, including reasons of general policy. Should the case arise and where practicable, the authorities shall provide to the exporter the reasons which have led them to consider acceptance of an undertaking as inappropriate, and shall, to the extent possible, give the exporter an opportunity to make comments thereon.

• 18.4 If an undertaking is accepted, the investigation of subsidization and injury shall nevertheless be completed if the exporting Member so desires or the importing Member so decides. In such a case, if a negative determination of subsidization or injury is made, the undertaking shall automatically lapse, except in cases where such a determination is due in large part to the existence of an undertaking. In such cases, the authorities concerned may require that an undertaking be maintained for a reasonable period consistent with the provisions of this Agreement. In the event that an affirmative determination of subsidization and injury is made, the undertaking shall continue consistent with its terms and the provisions of this Agreement.

• 18.5 Price undertakings may be suggested by the authorities of the importing Member, but no exporter shall be forced to enter into such undertakings. The fact that governments or exporters do not offer such undertakings, or do not accept an invitation to do so, shall in no way prejudice the consideration of the case. However, the authorities are free to determine that a threat of injury is more likely to be realized if the subsidized imports continue.

• 18.6 Authorities of an importing Member may require any government or exporter from whom an undertaking has been accepted to provide periodically information relevant to the fulfilment of such an undertaking, and to permit verification of pertinent data. In case of violation of an undertaking, the authorities of the importing Member may take, under this Agreement in conformity with its provisions, expeditious actions which may constitute immediate application of provisional measures using the best information available. In such cases, definitive duties may be levied in accordance with this Agreement on products entered for consumption not more than 90 days before the application of such provisional measures, except that any such retroactive assessment shall not apply to imports entered before the violation of the undertaking.

Article 19. Imposition and Collection of Countervailing Duties

• 19.1 If, after reasonable efforts have been made to complete consultations, a Member makes a final determination of the existence and amount of the subsidy and that, through the effects of the subsidy, the subsidized imports are causing injury, it may impose a countervailing duty in accordance with the provisions of this Article unless the subsidy or subsidies are withdrawn.

• 19.2 The decision whether or not to impose a countervailing duty in cases where all requirements for the imposition have been fulfilled, and the decision whether the amount of the countervailing duty to be imposed shall be the full amount of the subsidy or less, are decisions to be made by the authorities of the importing Member. It is desirable that the imposition should be permissive in the territory of all Members, that the duty should be less than the total amount of the subsidy if such lesser duty would be adequate to remove the injury to the domestic industry, and that procedures should be established which would allow the authorities concerned to take due account of representations made by domestic interested parties123whose interests might be adversely affected by the imposition of a countervailing duty.

• 19.3 When a countervailing duty is imposed in respect of any product, such countervailing duty shall be levied, in the appropriate amounts in each case, on a non-discriminatory basis on imports of such product from all sources found to be subsidized and causing injury, except as to imports from those sources which have renounced any subsidies in question or from which undertakings under the terms of this Agreement have been accepted. Any exporter whose exports are subject to a definitive countervailing duty but who was not actually investigated for reasons other than a refusal to cooperate, shall be entitled to an expedited review in order that the investigating authorities promptly establish an individual countervailing duty rate for that exporter.

• 19.4 No countervailing duty shall be levied124on any imported product in excess of the amount of the subsidy found to exist, calculated in terms of subsidization per unit of the subsidized and exported product.

Article 20. Retroactivity

• 20.1 Provisional measures and countervailing duties shall only be applied to products which enter for consumption after the time when the decision under paragraph 1 of Article 17 and paragraph 1 of Article 19, respectively, enters into force, subject to the exceptions set out in this Article.

• 20.2 Where a final determination of injury (but not of a threat thereof or of a material retardation of the establishment of an industry) is made or, in the case of a final determination of a threat of injury, where the effect of the subsidized imports would, in the absence of the provisional measures, have led to a determination of injury, countervailing duties may be levied retroactively for the period for which provisional measures, if any, have been applied.

• 20.3 If the definitive countervailing duty is higher than the amount guaranteed by the cash deposit or bond, the difference shall not be collected. If the definitive duty is less than the amount guaranteed by the cash deposit or bond, the excess amount shall be reimbursed or the bond released in an expeditious manner.

• 20.4 Except as provided in paragraph 2, where a determination of threat of injury or material retardation is made (but no injury has yet occurred) a definitive countervailing duty may be imposed only from the date of the determination of threat of injury or material retardation, and any cash deposit made during the period of the application of provisional measures shall be refunded and any bonds released in an expeditious manner.

• 20.5 Where a final determination is negative, any cash deposit made during the period of the application of provisional measures shall be refunded and any bonds released in an expeditious manner.

• 20.6 In critical circumstances where for the subsidized product in question the authorities find that injury which is difficult to repair is caused by massive imports in a relatively short period of a product benefiting from subsidies paid or bestowed inconsistently with the provisions of GATT 1994 and of this Agreement and where it is deemed necessary, in order to preclude the recurrence of such injury, to assess countervailing duties retroactively on those imports, the definitive countervailing duties may be assessed on imports which were entered for consumption not more than 90 days prior to the date of application of provisional measures.

Article 21. Duration and Review of Countervailing Duties and Undertakings

• 21.1 A countervailing duty shall remain in force only as long as and to the extent necessary to counteract subsidization which is causing injury.

• 21.2 The authorities shall review the need for the continued imposition of the duty, where warranted, on their own initiative or, provided that a reasonable period of time has elapsed since the imposition of the definitive countervailing duty, upon request by any interested party which submits positive information substantiating the need for a review. Interested parties shall have the right to request the authorities to examine whether the continued imposition of the duty is necessary to offset subsidization, whether the injury would be likely to continue or recur if the duty were removed or varied, or both. If, as a result of the review under this paragraph, the authorities determine that the countervailing duty is no longer warranted, it shall be terminated immediately.

• 21.3 Notwithstanding the provisions of paragraphs 1 and 2, any definitive countervailing duty shall be terminated on a date not later than five years from its imposition (or from the date of the most recent review under paragraph 2 if that review has covered both subsidization and injury, or under this paragraph), unless the authorities determine, in a review initiated before that date on their own initiative or upon a duly substantiated request made by or on behalf of the domestic industry within a reasonable period of time prior to that date, that the expiry of the duty would be likely to lead to continuation or recurrence of subsidization and injury.125The duty may remain in force pending the outcome of such a review.

• 21.4 The provisions of Article 12 regarding evidence and procedure shall apply to any review carried out under this Article. Any such review shall be carried out expeditiously and shall normally be concluded within 12 months of the date of initiation of the review.

• 21.5 The provisions of this Article shall apply mutatis mutandis to undertakings accepted under Article 18.

Article 22. Public Notice and Explanation of Determinations

• 22.1 When the authorities are satisfied that there is sufficient evidence to justify the initiation of an investigation pursuant to Article 11, the Member or Members the products of which are subject to such investigation and other interested parties known to the investigating authorities to have an interest therein shall be notified and a public notice shall be given.

• 22.2 A public notice of the initiation of an investigation shall contain, or otherwise make available through a separate report126, adequate information on the following:

  • i) the name of the exporting country or countries and the product involved;

  • ii) the date of initiation of the investigation;

  • iii) a description of the subsidy practice or practices to be investigated;

  • iv) a summary of the factors on which the allegation of injury is based;

  • v) the address to which representations by interested Members and interested parties should be directed; and

  • vi) the time-limits allowed to interested Members and interested parties for making their views known.

• 22.3 Public notice shall be given of any preliminary or final determination, whether affirmative or negative, of any decision to accept an undertaking pursuant to Article 18, of the termination of such an undertaking, and of the termination of a definitive countervailing duty. Each such notice shall set forth, or otherwise make available through a separate report, in sufficient detail the findings and conclusions reached on all issues of fact and law considered material by the investigating authorities. All such notices and reports shall be forwarded to the Member or Members the products of which are subject to such determination or undertaking and to other interested parties known to have an interest therein.

• 22.4 A public notice of the imposition of provisional measures shall set forth, or otherwise make available through a separate report, sufficiently detailed explanations for the preliminary determinations on the existence of a subsidy and injury and shall refer to the matters of fact and law which have led to arguments being accepted or rejected. Such a notice or report shall, due regard being paid to the requirement for the protection of confidential information, contain in particular:

  • i) the names of the suppliers or, when this is impracticable, the supplying countries involved;

  • ii) a description of the product which is sufficient for customs purposes;

  • iii) the amount of subsidy established and the basis on which the existence of a subsidy has been determined;

  • iv) considerations relevant to the injury determination as set out in Article 15;

  • v) the main reasons leading to the determination.

• 22.5 A public notice of conclusion or suspension of an investigation in the case of an affirmative determination providing for the imposition of a definitive duty or the acceptance of an undertaking shall contain, or otherwise make available through a separate report, all relevant information on the matters of fact and law and reasons which have led to the imposition of final measures or the acceptance of an undertaking, due regard being paid to the requirement for the protection of confidential information. In particular, the notice or report shall contain the information described in paragraph 4, as well as the reasons for the acceptance or rejection of relevant arguments or claims made by interested Members and by the exporters and importers.

• 22.6 A public notice of the termination or suspension of an investigation following the acceptance of an undertaking pursuant to Article 18 shall include, or otherwise make available through a separate report, the non-confidential part of this undertaking.

• 22.7 The provisions of this Article shall apply mutatis mutandis to the initiation and completion of reviews pursuant to Article 21 and to decisions under Article 20 to apply duties retroactively.

Article 23. Judicial Review

Each Member whose national legislation contains provisions on countervailing duty measures shall maintain judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review of administrative actions relating to final determinations and reviews of determinations within the meaning of Article 21. Such tribunals or procedures shall be independent of the authorities responsible for the determination or review in question, and shall provide all interested parties who participated in the administrative proceeding and are directly and individually affected by the administrative actions with access to review.

PART VI. INSTITUTIONS

Article 24. Committee on Subsidies and Countervailing Measures and Subsidiary Bodies

• 24.1 There is hereby established a Committee on Subsidies and Countervailing Measures composed of representatives from each of the Members. The Committee shall elect its own Chairman and shall meet not less than twice a year and otherwise as envisaged by relevant provisions of this Agreement at the request of any Member. The Committee shall carry out responsibilities as assigned to it under this Agreement or by the Members and it shall afford Members the opportunity of consulting on any matter relating to the operation of the Agreement or the furtherance of its objectives. The WTO Secretariat shall act as the secretariat to the Committee.

• 24.2 The Committee may set up subsidiary bodies as appropriate.

• 24.3 The Committee shall establish a Permanent Group of Experts composed of five independent persons, highly qualified in the fields of subsidies and trade relations. The experts will be elected by the Committee and one of them will be replaced every year. The PGE may be requested to assist a panel, as provided for in paragraph 5 of Article 4. The Committee may also seek an advisory opinion on the existence and nature of any subsidy.

• 24.4 The PGE may be consulted by any Member and may give advisory opinions on the nature of any subsidy proposed to be introduced or currently maintained by that Member. Such advisory opinions will be confidential and may not be invoked in proceedings under Article 7.

• 24.5 In carrying out their functions, the Committee and any subsidiary bodies may consult with and seek information from any source they deem appropriate. However, before the Committee or a subsidiary body seeks such information from a source within the jurisdiction of a Member, it shall inform the Member involved.

PART VII. NOTIFICATION AND SURVEILLANCE

Article 25. Notifications

• 25.1 Members agree that, without prejudice to the provisions of paragraph 1 of Article XVI of GATT 1994, their notifications of subsidies shall be submitted not later than 30 June of each year and shall conform to the provisions of paragraphs 2 through 6.

• 25.2 Members shall notify any subsidy as defined in paragraph 1 of Article 1, which is specific within the meaning of Article 2, granted or maintained within their territories.

• 25.3 The content of notifications should be sufficiently specific to enable other Members to evaluate the trade effects and to understand the operation of notified subsidy programmes. In this connection, and without prejudice to the contents and form of the questionnaire on subsidies127, Members shall ensure that their notifications contain the following information:

  • i) form of a subsidy (i.e. grant, loan, tax concession, etc.);

  • ii) subsidy per unit or, in cases where this is not possible, the total amount or the annual amount budgeted for that subsidy (indicating, if possible, the average subsidy per unit in the previous year);

  • iii) policy objective and/or purpose of a subsidy;

  • iv) duration of a subsidy and/or any other time-limits attached to it;

  • v) statistical data permitting an assessment of the trade effects of a subsidy.

• 25.4 Where specific points in paragraph 3 have not been addressed in a notification, an explanation shall be provided in the notification itself.

• 25.5 If subsidies are granted to specific products or sectors, the notifications should be organized by product or sector.

• 25.6 Members which consider that there are no measures in their territories requiring notification under paragraph 1 of Article XVI of GATT 1994 and this Agreement shall so inform the Secretariat in writing.

• 25.7 Members recognize that notification of a measure does not prejudge either its legal status under GATT 1994 and this Agreement, the effects under this Agreement, or the nature of the measure itself.

• 25.8 Any Member may, at any time, make a written request for information on the nature and extent of any subsidy granted or maintained by another Member (including any subsidy referred to in Part IV), or for an explanation of the reasons for which a specific measure has been considered as not subject to the requirement of notification.

• 25.9 Members so requested shall provide such information as quickly as possible and in a comprehensive manner, and shall be ready, upon request, to provide additional information to the requesting Member. In particular, they shall provide sufficient details to enable the other Member to assess their compliance with the terms of this Agreement. Any Member which considers that such information has not been provided may bring the matter to the attention of the Committee.

• 25.10 Any Member which considers that any measure of another Member having the effects of a subsidy has not been notified in accordance with the provisions of paragraph 1 of Article XVI of GATT 1994 and this Article may bring the matter to the attention of such other Member. If the alleged subsidy is not thereafter notified promptly, such Member may itself bring the alleged subsidy in question to the notice of the Committee.

• 25.11 Members shall report without delay to the Committee all preliminary or final actions taken with respect to countervailing duties. Such reports shall be available in the Secretariat for inspection by other Members. Members shall also submit, on a semi-annual basis, reports on any countervailing duty actions taken within the preceding six months. The semi-annual reports shall be submitted on an agreed standard form.

• 25.12 Each Member shall notify the Committee a) which of its authorities are competent to initiate and conduct investigations referred to in Article 11 and b) its domestic procedures governing the initiation and conduct of such investigations.

Article 26. Surveillance

• 26.1 The Committee shall examine new and full notifications submitted under paragraph 1 of Article XVI of GATT 1994 and paragraph 1 of Article 25 of this Agreement at special sessions held every third year. Notifications submitted in the intervening years (updating notifications) shall be examined at each regular meeting of the Committee.

• 26.2 The Committee shall examine reports submitted under paragraph 11 of Article 25 at each regular meeting of the Committee.

PART VIII. DEVELOPING COUNTRY MEMBERS

Article 27. Special and Differential Treatment of Developing Country Members

• 27.1 Members recognize that subsidies may play an important role in economic development programmes of developing country Members.

• 27.2 The prohibition of paragraph 1a) of Article 3 shall not apply to:

  • a) developing country Members referred to in Annex VII.

  • b) other developing country Members for a period of eight years from the date of entry into force of the WTO Agreement, subject to compliance with the provisions in paragraph 4.

• 27.3 The prohibition of paragraph 1(b) of Article 3 shall not apply to developing country Members for a period of five years, and shall not apply to least developed country Members for a period of eight years, from the date of entry into force of the WTO Agreement.

• 27.4 Any developing country Member referred to in paragraph 2b) shall phase out its export subsidies within the eight-year period, preferably in a progressive manner. However, a developing country Member shall not increase the level of its export subsidies128, and shall eliminate them within a period shorter than that provided for in this paragraph when the use of such export subsidies is inconsistent with its development needs. If a developing country Member deems it necessary to apply such subsidies beyond the 8-year period, it shall not later than one year before the expiry of this period enter into consultation with the Committee, which will determine whether an extension of this period is justified, after examining all the relevant economic, financial and development needs of the developing country Member in question. If the Committee determines that the extension is justified, the developing country Member concerned shall hold annual consultations with the Committee to determine the necessity of maintaining the subsidies. If no such determination is made by the Committee, the developing country Member shall phase out the remaining export subsidies within two years from the end of the last authorized period.

• 27.5 A developing country Member which has reached export competitiveness in any given product shall phase out its export subsidies for such product(s) over a period of two years. However, for a developing country Member which is referred to in Annex VII and which has reached export competitiveness in one or more products, export subsidies on such products shall be gradually phased out over a period of eight years.

• 27.6 Export competitiveness in a product exists if a developing country Member's exports of that product have reached a share of at least 3.25 per cent in world trade of that product for two consecutive calendar years. Export competitiveness shall exist either a)o n the basis of notification by the developing country Member having reached export competitiveness, or b) on the basis of a computation undertaken by the Secretariat at the request of any Member. For the purpose of this paragraph, a product is defined as a section heading of the Harmonized System Nomenclature. The Committee shall review the operation of this provision five years from the date of the entry into force of the WTO Agreement.

• 27.7 The provisions of Article 4 shall not apply to a developing country Member in the case of export subsidies which are in conformity with the provisions of paragraphs 2 through 5. The relevant provisions in such a case shall be those of Article 7.

• 27.8 There shall be no presumption in terms of paragraph 1 of Article 6 that a subsidy granted by a developing country Member results in serious prejudice, as defined in this Agreement. Such serious prejudice, where applicable under the terms of paragraph 9, shall be demonstrated by positive evidence, in accordance with the provisions of paragraphs 3 through 8 of Article 6.

• 27.9 Regarding actionable subsidies granted or maintained by a developing country Member other than those referred to in paragraph 1 of Article 6, action may not be authorized or taken under Article 7 unless nullification or impairment of tariff concessions or other obligations under GATT 1994 is found to exist as a result of such a subsidy, in such a way as to displace or impede imports of a like product of another Member into the market of the subsidizing developing country Member or unless injury to a domestic industry in the market of an importing Member occurs.

• 27.10 Any countervailing duty investigation of a product originating in a developing country Member shall be terminated as soon as the authorities concerned determine that:

  • a) the overall level of subsidies granted upon the product in question does not exceed 2 per cent of its value calculated on a per unit basis; or

  • b) the volume of the subsidized imports represents less than 4 per cent of the total imports of the like product in the importing Member, unless imports from developing country Members whose individual shares of total imports represent less than 4 per cent collectively account for more than 9 per cent of the total imports of the like product in the importing Member.

• 27.11 For those developing country Members within the scope of paragraph 2b) which have eliminated export subsidies prior to the expiry of the period of eight years from the date of entry into force of the WTO Agreement, and for those developing country Members referred to in Annex VII, the number in paragraph 10a) shall be 3 per cent rather than 2 per cent. This provision shall apply from the date that the elimination of export subsidies is notified to the Committee, and for so long as export subsidies are not granted by the notifying developing country Member. This provision shall expire eight years from the date of entry into force of the WTO Agreement.

• 27.12 The provisions of paragraphs 10 and 11 shall govern any determination of de minimis under paragraph 3 of Article 15.

• 27.13 The provisions of Part III shall not apply to direct forgiveness of debts, subsidies to cover social costs, in whatever form, including relinquishment of government revenue and other transfer of liabilities when such subsidies are granted within and directly linked to a privatization programme of a developing country Member, provided that both such programme and the subsidies involved are granted for a limited period and notified to the Committee and that the programme results in eventual privatization of the enterprise concerned.

• 27.14 The Committee shall, upon request by an interested Member, undertake a review of a specific export subsidy practice of a developing country Member to examine whether the practice is in conformity with its development needs.

• 27.15 The Committee shall, upon request by an interested developing country Member, undertake a review of a specific countervailing measure to examine whether it is consistent with the provisions of paragraphs 10 and 11 as applicable to the developing country Member in question.

PART IX. TRANSITIONAL ARRANGEMENTS

Article 28. Existing Programmes

• 28.1 Subsidy programmes which have been established within the territory of any Member before the date on which such a Member signed the WTO Agreement and which are inconsistent with the provisions of this Agreement shall be:

  • a) notified to the Committee not later than 90 days after the date of entry into force of the WTO Agreement for such Member; and

  • b) brought into conformity with the provisions of this Agreement within three years of the date of entry into force of the WTO Agreement for such Member and until then shall not be subject to Part II.

• 28.2 No Member shall extend the scope of any such programme, nor shall such a programme be renewed upon its expiry.

Article 29. Transformation into a Market Economy

• 29.1 Members in the process of transformation from a centrally-planned into a market, free-enterprise economy may apply programmes and measures necessary for such a transformation.

• 29.2 For such Members, subsidy programmes falling within the scope of Article 3, and notified according to paragraph 3, shall be phased out or brought into conformity with Article 3 within a period of seven years from the date of entry into force of the WTO Agreement. In such a case, Article 4 shall not apply. In addition during the same period:

  • a) Subsidy programmes falling within the scope of paragraph 1d) of Article 6 shall not be actionable under Article 7;

  • b) With respect to other actionable subsidies, the provisions of paragraph 9 of Article 27 shall apply.

• 29.3 Subsidy programmes falling within the scope of Article 3 shall be notified to the Committee by the earliest practicable date after the date of entry into force of the WTO Agreement. Further notifications of such subsidies may be made up to two years after the date of entry into force of the WTO Agreement.

• 29.4 In exceptional circumstances Members referred to in paragraph 1 may be given departures from their notified programmes and measures and their time-frame by the Committee if such departures are deemed necessary for the process of transformation.

PART X. DISPUTE SETTLEMENT

Article 30

The provisions of Articles XXII and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding shall apply to consultations and the settlement of disputes under this Agreement, except as otherwise specifically provided herein.

PART XI. FINAL PROVISIONS

Article 31. Provisional Application

The provisions of paragraph 1 of Article 6 and the provisions of Article 8 and Article 9 shall apply for a period of five years, beginning with the date of entry into force of the WTO Agreement. Not later than 180 days before the end of this period, the Committee shall review the operation of those provisions, with a view to determining whether to extend their application, either as presently drafted or in a modified form, for a further period.

Article 32. Other Final Provisions

• 32.1 No specific action against a subsidy of another Member can be taken except in accordance with the provisions of GATT 1994, as interpreted by this Agreement.129

• 32.2 Reservations may not be entered in respect of any of the provisions of this Agreement without the consent of the other Members.

• 32.3 Subject to paragraph 4, the provisions of this Agreement shall apply to investigations, and reviews of existing measures, initiated pursuant to applications which have been made on or after the date of entry into force for a Member of the WTO Agreement.

• 32.4 For the purposes of paragraph 3 of Article 21, existing countervailing measures shall be deemed to be imposed on a date not later than the date of entry into force for a Member of the WTO Agreement, except in cases in which the domestic legislation of a Member in force at that date already included a clause of the type provided for in that paragraph.

• 32.5 Each Member shall take all necessary steps, of a general or particular character, to ensure, not later than the date of entry into force of the WTO Agreement for it, the conformity of its laws, regulations and administrative procedures with the provisions of this Agreement as they may apply to the Member in question.

• 32.6 Each Member shall inform the Committee of any changes in its laws and regulations relevant to this Agreement and in the administration of such laws and regulations.

• 32.7 The Committee shall review annually the implementation and operation of this Agreement, taking into account the objectives thereof. The Committee shall inform annually the Council for Trade in Goods of developments during the period covered by such reviews.

• 32.8 The Annexes to this Agreement constitute an integral part thereof.

Annex I. ILLUSTRATIVE LIST OF EXPORT SUBSIDIES

• a) The provision by governments of direct subsidies to a firm or an industry contingent upon export performance.

• b) Currency retention schemes or any similar practices which involve a bonus on exports.

• c) Internal transport and freight charges on export shipments, provided or mandated by governments, on terms more favourable than for domestic shipments.

• d) The provision by governments or their agencies either directly or indirectly through government-mandated schemes, of imported or domestic products or services for use in the production of exported goods, on terms or conditions more favourable than for provision of like or directly competitive products or services for use in the production of goods for domestic consumption, if (in the case of products) such terms or conditions are more favourable than those commercially available130 on world markets to their exporters.

• e) The full or partial exemption remission, or deferral specifically related to exports, of direct taxes131or social welfare charges paid or payable by industrial or commercial enterprises.132

• f) The allowance of special deductions directly related to exports or export performance, over and above those granted in respect to production for domestic consumption, in the calculation of the base on which direct taxes are charged.

• g) The exemption or remission, in respect of the production and distribution of exported products, of indirect taxes133in excess of those levied in respect of the production and distribution of like products when sold for domestic consumption.

• h) The exemption, remission or deferral of prior-stage cumulative indirect taxes134on goods or services used in the production of exported products in excess of the exemption, remission or deferral of like prior-stage cumulative indirect taxes on goods or services used in the production of like products when sold for domestic consumption; provided, however, that prior-stage cumulative indirect taxes may be exempted, remitted or deferred on exported products even when not exempted, remitted or deferred on like products when sold for domestic consumption, if the prior-stage cumulative indirect taxes are levied on inputs that are consumed in the production of the exported product (making normal allowance for waste).135This item shall be interpreted in accordance with the guidelines on consumption of inputs in the production process contained in Annex II.

• i) The remission or drawback of import charges136in excess of those levied on imported inputs that are consumed in the production of the exported product (making normal allowance for waste); provided, however, that in particular cases a firm may use a quantity of home market inputs equal to, and having the same quality and characteristics as, the imported inputs as a substitute for them in order to benefit from this provision if the import and the corresponding export operations both occur within a reasonable time period, not to exceed two years. This item shall be interpreted in accordance with the guidelines on consumption of inputs in the production process contained in Annex II and the guidelines in the determination of substitution drawback systems as export subsidies contained in Annex III.

• j) The provision by governments (or special institutions controlled by governments) of export credit guarantee or insurance programmes, of insurance or guarantee programmes against increases in the cost of exported products or of exchange risk programmes, at premium rates which are inadequate to cover the long-term operating costs and losses of the programmes.

• k) The grant by governments (or special institutions controlled by and/or acting under the authority of governments) of export credits at rates below those which they actually have to pay for the funds so employed (or would have to pay if they borrowed on international capital markets in order to obtain funds of the same maturity and other credit terms and denominated in the same currency as the export credit), or the payment by them of all or part of the costs incurred by exporters or financial institutions in obtaining credits, in so far as they are used to secure a material advantage in the field of export credit terms.

  Provided, however, that if a Member is a party to an international undertaking on official export credits to which at least twelve original Members to this Agreement are parties as of 1 January 1979 (or a successor undertaking which has been adopted by those original Members), or if in practice a Member applies the interest rates provisions of the relevant undertaking, an export credit practice which is in conformity with those provisions shall not be considered an export subsidy prohibited by this Agreement.

• l) Any other charge on the public account constituting an export subsidy in the sense of Article XVI of GATT1994.

Annex II. GUIDELINES ON CONSUMPTION OF INPUTS IN THE PRODUCTION PROCESS137

I.

• 1. Indirect tax rebate schemes can allow for exemption, remission or deferral of prior-stage cumulative indirect taxes levied on inputs that are consumed in the production of the exported product (making normal allowance for waste). Similarly, drawback schemes can allow for the remission or drawback of import charges levied on inputs that are consumed in the production of the exported product (making normal allowance for waste).

• 2. The Illustrative List of Export Subsidies in Annex I of this Agreement makes reference to the term "inputs that are consumed in the production of the exported product" in paragraphs h) and i). Pursuant to paragraph h), indirect tax rebate schemes can constitute an export subsidy to the extent that they result in exemption, remission or deferral of prior-stage cumulative indirect taxes in excess of the amount of such taxes actually levied on inputs that are consumed in the production of the exported product. Pursuant to paragraph i), drawback schemes can constitute an export subsidy to the extent that they result in a remission or drawback of import charges in excess of those actually levied on inputs that are consumed in the production of the exported product. Both paragraphs stipulate that normal allowance for waste must be made in findings regarding consumption of inputs in the production of the exported product. Paragraph i) also provides for substitution, where appropriate.

II.

In examining whether inputs are consumed in the production of the exported product, as part of a countervailing duty investigation pursuant to this Agreement, investigating authorities should proceed on the following basis:

• 1. Where it is alleged that an indirect tax rebate scheme, or a drawback scheme, conveys a subsidy by reason of over-rebate or excess drawback of indirect taxes or import charges on inputs consumed in the production of the exported product, the investigating authorities should first determine whether the government of the exporting Member has in place and applies a system or procedure to confirm which inputs are consumed in the production of the exported product and in what amounts. Where such a system or procedure is determined to be applied, the investigating authorities should then examine the system or procedure to see whether it is reasonable, effective for the purpose intended, and based on generally accepted commercial practices in the country of export. The investigating authorities may deem it necessary to carry out, in accordance with paragraph 6 of Article 12, certain practical tests in order to verify information or to satisfy themselves that the system or procedure is being effectively applied.

• 2. Where there is no such system or procedure, where it is not reasonable, or where it is instituted and considered reasonable but is found not to be applied or not to be applied effectively, a further examination by the exporting Member based on the actual inputs involved would need to be carried out in the context of determining whether an excess payment occurred. If the investigating authorities deemed it necessary, a further examination would be carried out in accordance with paragraph 1.

• 3. Investigating authorities should treat inputs as physically incorporated if such inputs are used in the production process and are physically present in the product exported. The Members note that an input need not be present in the final product in the same form in which it entered the production process.

• 4. In determining the amount of a particular input that is consumed in the production of the exported product, a "normal allowance for waste" should be taken into account, and such waste should be treated as consumed in the production of the exported product. The term "waste" refers to that portion of a given input does not serve an independent function in the production process, is not consumed in the production of the exported product (for reasons such as inefficiencies) and is not recovered, used or sold by the same manufacturer.

• 5. The investigating authority's determination of whether the claimed allowance for waste is "normal" should take into account the production process, the average experience of the industry in the country of export, and other technical factors, as appropriate. The investigating authority should bear in mind that an important question is whether the authorities in the exporting Member have reasonably calculated the amount of waste, when such an amount is intended to be included in the tax or duty rebate or remission.

Annex III. GUIDELINES IN THE DETERMINATION OF SUBSTITUTION DRAWBACK SYSTEMS AS EXPORT SUBSIDIES

I.

Drawback systems can allow for the refund or drawback of import charges on inputs which are consumed in the production process of another product and where the export of this latter product contains domestic inputs having the same quality and characteristics as those substituted for the imported inputs. Pursuant to paragraph i) of the Illustrative List of Export Subsidies in Annex I, substitution drawback systems can constitute an export subsidy to the extent that they result in an excess drawback of the import charges levied initially on the imported inputs for which drawback is being claimed.

II.

In examining any substitution drawback system as part of a countervailing duty investigation pursuant to this Agreement, investigating authorities should proceed on the following basis:

• 1. Paragraph i) of the Illustrative List stipulates that home market inputs may be substituted for imported inputs in the production of a product for export provided such inputs are equal in quantity to, and have the same quality and characteristics as, the imported inputs being substituted. The existence of a verification system or procedure is important because it enables the government of the exporting Member to ensure and demonstrate that the quantity of inputs for which drawback is claimed does not exceed the quantity of similar products exported, in whatever form, and that there is not drawback of import charges in excess of those originally levied on the imported inputs in question.

• 2. Where it is alleged that a substitution drawback system conveys a subsidy, the investigating authorities should first proceed to determine whether the government of the exporting Member has in place and applies a verification system or procedure. Where such a system or procedure is determined to be applied, the investigating authorities should then examine the verification procedures to see whether they are reasonable, effective for the purpose intended, and based on generally accepted commercial practices in the country of export. To the extent that the procedures are determined to meet this test and are effectively applied, no subsidy should be presumed to exist. It may be deemed necessary by the investigating authorities to carry out, in accordance with paragraph 6 of Article 12, certain practical tests in order to verify information or to satisfy themselves that the verification procedures are being effectively applied.

• 3. Where there are no verification procedures, where they are not reasonable, or where such procedures are instituted and considered reasonable but are found not to be actually applied or not applied effectively, there may be a subsidy. In such cases a further examination by the exporting Member based on the actual transactions involved would need to be carried out to determine whether an excess payment occurred. If the investigating authorities deemed it necessary, a further examination would be carried out in accordance with paragraph 2.

• 4. The existence of a substitution drawback provision under which exporters are allowed to select particular import shipments on which drawback is claimed should not of itself be considered to convey a subsidy.

• 5. An excess drawback of import charges in the sense of paragraph (i) would be deemed to exist where governments paid interest on any monies refunded under their drawback schemes, to the extent of the interest actually paid or payable.

Annex IV. CALCULATION OF THE TOTAL AD VALOREM SUBSIDIZATION (PARAGRAPH 1(A) OF ARTICLE 6)138

• 1. Any calculation of the amount of a subsidy for the purpose of paragraph 1a) of Article 6 shall be done in terms of the cost to the granting government.

• 2. Except as provided in paragraphs 3 through 5, in determining whether the overall rate of subsidization exceeds 5 per cent of the value of the product, the value of the product shall be calculated as the total value of the recipient firm's139sales in the most recent 12-month period, for which sales data is available, preceding the period in which the subsidy is granted.140

• 3. Where the subsidy is tied to the production or sale of a given product, the value of the product shall be calculated as the total value of the recipient firm's sales of that product in the most recent 12-month period, for which sales data is available, preceding the period in which the subsidy is granted.

• 4. Where the recipient firm is in a start-up situation, serious prejudice shall be deemed to exist if the overall rate of subsidization exceeds 15 per cent of the total funds invested. For purposes of this paragraph, a start-up period will not extend beyond the first year of production.141

• 5. Where the recipient firm is located in an inflationary economy country, the value of the product shall be calculated as the recipient firm's total sales (or sales of the relevant product, if the subsidy is tied) in the preceding calendar year indexed by the rate of inflation experienced in the 12 months preceding the month in which the subsidy is to be given.

• 6. In determining the overall rate of subsidization in a given year, subsidies given under different programmes and by different authorities in the territory of a Member shall be aggregated.

• 7. Subsidies granted prior to the date of entry into force of the WTO Agreement, the benefits of which are allocated to future production, shall be included in the overall rate of subsidization.

• 8. Subsidies which are non-actionable under relevant provisions of this Agreement shall not be included in the calculation of the amount of a subsidy for the purpose of paragraph 1a) of Article 6.

Annex V. PROCEDURES FOR DEVELOPING INFORMATION CONCERNING SERIOUS PREJUDICE

• 1. Every Member shall cooperate in the development of evidence to be examined by a panel in procedures under paragraphs 4 through 6 of Article 7. The parties to the dispute and any third-country Member concerned shall notify to the DSB, as soon as the provisions of paragraph 4 of Article 7 have been invoked, the organization responsible for administration of this provision within its territory and the procedures to be used to comply with requests for information.

• 2. In cases where matters are referred to the DSB under paragraph 4 of Article 7, the DSB shall, upon request, initiate the procedure to obtain such information from the government of the subsidizing Member as necessary to establish the existence and amount of subsidization, the value of total sales of the subsidized firms, as well as information necessary to analyze the adverse effects caused by the subsidized product.142 This process may include, where appropriate, presentation of questions to the government of the subsidizing Member and of the complaining Member to collect information, as well as to clarify and obtain elaboration of information available to the parties to a dispute through the notification procedures set forth in Part VII.143

• 3. In the case of effects in third-country markets, a party to a dispute may collect information, including through the use of questions to the government of the third-country Member, necessary to analyse adverse effects, which is not otherwise reasonably available from the complaining Member or the subsidizing Member. This requirement should be administered in such a way as not to impose an unreasonable burden on the third-country Member. In particular, such a Member is not expected to make a market or price analysis specially for that purpose. The information to be supplied is that which is already available or can be readily obtained by this Member (e.g. most recent statistics which have already been gathered by relevant statistical services but which have not yet been published, customs data concerning imports and declared values of the products concerned, etc.). However, if a party to a dispute undertakes a detailed market analysis at its own expense, the task of the person or firm conducting such an analysis shall be facilitated by the authorities of the third-country Member and such a person or firm shall be given access to all information which is not normally maintained confidential by the government.

• 4. The DSB shall designate a representative to serve the function of facilitating the information-gathering process. The sole purpose of the representative shall be to ensure the timely development of the information necessary to facilitate expeditious subsequent multilateral review of the dispute. In particular, the representative may suggest ways to most efficiently solicit necessary information as well as encourage the cooperation of the parties.

• 5. The information-gathering process outlined in paragraphs 2 through 4 shall be completed within 60 days of the date on which the matter has been referred to the DSB under paragraph 4 of Article 7. The information obtained during this process shall be submitted to the panel established by the DSB in accordance with the provisions of Part X. This information should include, inter alia, data concerning the amount of the subsidy in question (and, where appropriate, the value of total sales of the subsidized firms), prices of the subsidized product, prices of the non-subsidized product, prices of other suppliers to the market, changes in the supply of the subsidized product to the market in question and changes in market shares. It should also include rebuttal evidence, as well as such supplemental information as the panel deems relevant in the course of reaching its conclusions.

• 6. If the subsidizing and/or third-country Member fail to cooperate in the information-gathering process, the complaining Member will present its case of serious prejudice, based on evidence available to it, together with facts and circumstances of the non-cooperation of the subsidizing and/or third-country Member. Where information is unavailable due to non-cooperation by the subsidizing and/or third-country Member, the panel may complete the record as necessary relying on best information otherwise available.

• 7. In making its determination, the panel should draw adverse inferences from instances of non- cooperation by any party involved in the information-gathering process.

• 8. In making a determination to use either best information available or adverse inferences, the panel shall consider the advice of the DSB representative nominated under paragraph 4 as to the reasonableness of any requests for information and the efforts made by parties to comply with these requests in a cooperative and timely manner.

• 9. Nothing in the information-gathering process shall limit the ability of the panel to seek such additional information it deems essential to a proper resolution to the dispute, and which was not adequately sought or developed during that process. However, ordinarily the panel should not request additional information to complete the record where the information would support a particular party's position and the absence of that information in the record is the result of unreasonable non-cooperation by that party in the information-gathering process.

Annex VI. PROCEDURES FOR ON-THE-SPOT INVESTIGATIONS PURSUANT TO PARAGRAPH 6 OF ARTICLE 12

• 1. Upon initiation of an investigation, the authorities of the exporting Member and the firms known to be concerned should be informed of the intention to carry out on-the-spot investigations.

• 2. If in exceptional circumstances it is intended to include non-governmental experts in the investigating team, the firms and the authorities of the exporting Member should be so informed. Such non-governmental experts should be subject to effective sanctions for breach of confidentiality requirements.

• 3. It should be standard practice to obtain explicit agreement of the firms concerned in the exporting Member before the visit is finally scheduled.

• 4. As soon as the agreement of the firms concerned has been obtained, the investigating authorities should notify the authorities of the exporting Member of the names and addresses of the firms to be visited and the dates agreed.

• 5. Sufficient advance notice should be given to the firms in question before the visit is made.

• 6. Visits to explain the questionnaire should only be made at the request of an exporting firm. In case of such a request the investigating authorities may place themselves at the disposal of the firm; such a visit may only be made if a) the authorities of the importing Member notify the representatives of the government of the Member in question and b) the latter do not object to the visit.

• 7. As the main purpose of the on-the-spot investigation is to verify information provided or to obtain further details, it should be carried out after the response to the questionnaire has been received unless the firm agrees to the contrary and the government of the exporting Member is informed by the investigating authorities of the anticipated visit and does not object to it; further, it should be standard practice prior to the visit to advise the firms concerned of the general nature of the information to be verified and of any further information which needs to be provided, though this should not preclude requests to be made on the spot for further details to be provided in the light of information obtained.

• 8. Enquiries or questions put by the authorities or firms of the exporting Members and essential to a successful on-the-spot investigation should, whenever possible, be answered before the visit is made.

Annex VII. DEVELOPING COUNTRY MEMBERS REFERRED TO IN PARAGRAPH 2(A) OF ARTICLE 27

The developing country Members not subject to the provisions of paragraph 2a) of Article 3 under the terms of paragraph 2a) of Article 27 are:

• a) Least-developed countries designated as such by the United Nations which are Members of the WTO.

• b) Each of the following developing countries which are Members of the WTO shall be subject to the provisions which are applicable to other developing country Members according to paragraph 2b) of Article 27 when GNP per capita has reached $ 1,000 per annum144: Bolivia, Cameroon, Congo, Cote d'lvoire, Dominican Republic, Egypt, Ghana, Guatemala, Guyana, India, Indonesia, Kenya, Morocco, Nicaragua, Nigeria, Pakistan, Philippines, Senegal, Sri Lanka and Zimbabwe.

Agreement on safeguards

Members,

Having in mind the overall objective of the Members to improve and strengthen the international trading system based on GATT 1994;

Recognizing the need to clarify and reinforce the disciplines of GATT 1994, and specifically those of its Article XIX (Emergency Action on Imports of Particular Products), to re-establish multilateral control over safeguards and eliminate measures that escape such control;

Recognizing the importance of structural adjustment and the need to enhance rather than limit competition in international markets; and

Recognizing further that, for these purposes, a comprehensive agreement, applicable to all Members and based on the basic principles of GATT 1994, is called for;

Hereby agree as follows:

Article 1. General Provision

This Agreement establishes rules for the application of safeguard measures which shall be understood to mean those measures provided for in Article XIX of GATT 1994.

Article 2. Conditions

• 1 A Member145may apply a safeguard measure to a product only if that Member has determined, pursuant to the provisions set out below, that such product is being imported into its territory in such increased quantities, absolute or relative to domestic production, and under such conditions as to cause or threaten to cause serious injury to the domestic industry that produces like or directly competitive products.

• 2 Safeguard measures shall be applied to a product being imported irrespective of its source.

Article 3. Investigation

• 1 A Member may apply a safeguard measure only following an investigation by the competent authorities of that Member pursuant to procedures previously established and made public in consonance with Article X of GATT 1994. This investigation shall include reasonable public notice to all interested parties and public hearings or other appropriate means in which importers, exporters and other interested parties could present evidence and their views, including the opportunity to respond to the presentations of other parties and to submit their views, inter alia, as to whether or not the application of a safeguard measure would be in the public interest. The competent authorities shall publish a report setting forth their findings and reasoned conclusions reached on all pertinent issues of fact and law.

• 2 Any information which is by nature confidential or which is provided on a confidential basis shall, upon cause being shown, be treated as such by the competent authorities. Such information shall not be disclosed without permission of the party submitting it. Parties providing confidential information may be requested to furnish non-confidential summaries thereof or, if such parties indicate that such information cannot be summarized, the reasons why a summary cannot be provided. However, if the competent authorities find that a request for confidentiality is not warranted and if the party concerned is either unwilling to make the information public or to authorize its disclosure in generalized or summary form, the authorities may disregard such information unless it can be demonstrated to their satisfaction from appropriate sources that the information is correct.

Article 4. Determination of Serious Injury or Threat Thereof

• 1 For the purposes of this Agreement:

  • a) "serious injury" shall be understood to mean a significant overall impairment in the position of a domestic industry;

  • b) "threat of serious injury" shall be understood to mean serious injury that is clearly imminent, in accordance with the provisions of paragraph 2. A determination of the existence of a threat of serious injury shall be based on facts and not merely on allegation, conjecture or remote possibility; and

  • c) in determining injury or threat thereof, a "domestic industry" shall be understood to mean the producers as a whole of the like or directly competitive products operating within the territory of a Member, or those whose collective output of the like or directly competitive products constitutes a major proportion of the total domestic production of those products.

• 2

  • a) In the investigation to determine whether increased imports have caused or are threatening to cause serious injury to a domestic industry under the terms of this Agreement, the competent authorities shall evaluate all relevant factors of an objective and quantifiable nature having a bearing on the situation of that industry, in particular, the rate and amount of the increase in imports of the product concerned in absolute and relative terms, the share of the domestic market taken by increased imports, changes in the level of sales, production, productivity, capacity utilization, profits and losses, and employment.

  • b) The determination referred to in subparagraph a) shall not be made unless this investigation demonstrates, on the basis of objective evidence, the existence of the causal link between increased imports of the product concerned and serious injury or threat thereof. When factors other than increased imports are causing injury to the domestic industry at the same time, such injury shall not be attributed to increased imports.

  • c) The competent authorities shall publish promptly, in accordance with the provisions of Article 3, a detailed analysis of the case under investigation as well as a demonstration of the relevance of the factors examined.

Article 5. Application of Safeguard Measures

• 1 A Member shall apply safeguard measures only to the extent necessary to prevent or remedy serious injury and to facilitate adjustment. If a quantitative restriction is used, such a measure shall not reduce the quantity of imports below the level of a recent period which shall be the average of imports in the last three representative years for which statistics are available, unless clear justification is given that a different level is necessary to prevent or remedy serious injury. Members should choose measures most suitable for the achievement of these objectives.

• 2

  • a) In cases in which a quota is allocated among supplying countries, the Member applying the restrictions may seek agreement with respect to the allocation of shares in the quota with all other Members having a substantial interest in supplying the product concerned. In cases in which this method is not reasonably practicable, the Member concerned shall allot to Members having a substantial interest in supplying the product shares based upon the proportions, supplied by such Members during a previous representative period, of the total quantity or value of imports of the product, due account being taken of any special factors which may have affected or may be affecting the trade in the product.

  • b) A Member may depart from the provisions in subparagraph a) provided that consultations under paragraph 3 of Article 12 are conducted under the auspices of the Committee on Safeguards provided for in paragraph 1 of Article 13 and that clear demonstration is provided to the Committee that i) imports from certain Members have increased in disproportionate percentage in relation to the total increase of imports of the product concerned in the representative period, ii) the reasons for the departure from the provisions in subparagraph a) are justified, and iii) the conditions of such departure are equitable to all suppliers of the product concerned. The duration of any such measure shall not be extended beyond the initial period under paragraph 1 of Article 7. The departure referred to above shall not be permitted in the case of threat of serious injury.

Article 6. Provisional Safeguard Measures

In critical circumstances where delay would cause damage which it would be difficult to repair, a Member may take a provisional safeguard measure pursuant to a preliminary determination that there is clear evidence that increased imports have caused or are threatening to cause serious injury. The duration of the provisional measure shall not exceed 200 days, during which period the pertinent requirements of Articles 2 through 7 and 12 shall be met. Such measures should take the form of tariff increases to be promptly refunded if the subsequent investigation referred to in paragraph 2 of Article 4 does not determine that increased imports have caused or threatened to cause serious injury to a domestic industry. The duration of any such provisional measure shall be counted as a part of the initial period and any extension referred to in paragraphs 1, 2 and 3 of Article 7.

Article 7. Duration and Review of Safeguard Measures

• 1 A Member shall apply safeguard measures only for such period of time as may be necessary to prevent or remedy serious injury and to facilitate adjustment. The period shall not exceed four years, unless it is extended under paragraph 2.

• 2 The period mentioned in paragraph 1 may be extended provided that the competent authorities of the importing Member have determined, in conformity with the procedures set out in Articles 2, 3, 4 and 5, that the safeguard measure continues to be necessary to prevent or remedy serious injury and that there is evidence that the industry is adjusting, and provided that the pertinent provisions of Articles 8 and 12 are observed.

• 3 The total period of application of a safeguard measure including the period of application of any provisional measure, the period of initial application and any extension thereof, shall not exceed eight years.

• 4 In order to facilitate adjustment in a situation where the expected duration of a safeguard measure as notified under the provisions of paragraph 1 of Article 12 is over one year, the Member applying the measure shall progressively liberalize it at regular intervals during the period of application. If the duration of the measure exceeds three years, the Member applying such a measure shall review the situation not later than the mid-term of the measure and, if appropriate, withdraw it or increase the pace of liberalization. A measure extended under paragraph 2 shall not be more restrictive than it was at the end of the initial period, and should continue to be liberalized.

• 5 No safeguard measure shall be applied again to the import of a product which has been subject to such a measure, taken after the date of entry into force of the WTO Agreement, for a period of time equal to that during which such measure had been previously applied, provided that the period of non-application is at least two years.

• 6 Notwithstanding the provisions of paragraph 5, a safeguard measure with a duration of 180 days or less may be applied again to the import of a product if:

  • a) at least one year has elapsed since the date of introduction of a safeguard measure on the import of that product; and

  • b) such a safeguard measure has not been applied on the same product more than twice in the five-year period immediately preceding the date of introduction of the measure.

Article 8. Level of Concessions and Other Obligations

• 1 A Member proposing to apply a safeguard measure or seeking an extension of a safeguard measure shall endeavour to maintain a substantially equivalent level of concessions and other obligations to that existing under GATT 1994 between it and the exporting Members which would be affected by such a measure, in accordance with the provisions of paragraph 3 of Article 12. To achieve this objective, the Members concerned may agree on any adequate means of trade compensation for the adverse effects of the measure on their trade.

• 2 If no agreement is reached within 30 days in the consultations under paragraph 3 of Article 12, then the affected exporting Members shall be free, not later than 90 days after the measure is applied, to suspend, upon the expiration of 30 days from the day on which written notice of such suspension is received by the Council for Trade in Goods, the application of substantially equivalent concessions or other obligations under GATT 1994, to the trade of the Member applying the safeguard measure, the suspension of which the Council for Trade in Goods does not disapprove.

• 3 The right of suspension referred to in paragraph 2 shall not be exercised for the first three years that a safeguard measure is in effect, provided that the safeguard measure has been taken as a result of an absolute increase in imports and that such a measure conforms to the provisions of this Agreement.

Article 9. Developing Country Members

• 1 Safeguard measures shall not be applied against a product originating in a developing country Member as long as its share of imports of the product concerned in the importing Member does not exceed 3 per cent, provided that developing country Members with less than 3 per cent import share collectively account for not more than 9 per cent of total imports of the product concerned.146

• 2 A developing country Member shall have the right to extend the period of application of a safeguard measure for a period of up to two years beyond the maximum period provided for in paragraph 3 of Article 7. Notwithstanding the provisions of paragraph 5 of Article 7, a developing country Member shall have the right to apply a safeguard measure again to the import of a product which has been subject to such a measure, taken after the date of entry into force of the WTO Agreement, after a period of time equal to half that during which such a measure has been previously applied, provided that the period of non-application is at least two years.

Article 10. Pre-existing Article XIX Measures

Members shall terminate all safeguard measures taken pursuant to Article XIX of GATT 1947 that were in existence on the date of entry into force of the WTO Agreement not later than eight years after the date on which they were first applied or five years after the date of entry into force of the WTO Agreement, whichever comes later.

Article 11. Prohibition and Elimination of Certain Measures

• 1

  • a) A Member shall not take or seek any emergency action on imports of particular products as set forth in Article XIX of GATT 1994 unless such action conforms with the provisions of that Article applied in accordance with this Agreement.

  • b) Furthermore, a Member shall not seek, take or maintain any voluntary export restraints, orderly marketing arrangements or any other similar measures on the export or the import side.147'148These include actions taken by a single Member as well as actions under agreements, arrangements and understandings entered into by two or more Members. Any such measure in effect on the date of entry into force of the WTO Agreement shall be brought into conformity with this Agreement or phased out in accordance with paragraph 2.

  • c) This Agreement does not apply to measures sought, taken or maintained by a Member pursuant to provisions of GATT 1994 other than Article XIX, and Multilateral Trade Agreements in Annex 1A other than this Agreement, or pursuant to protocols and agreements or arrangements concluded within the framework of GATT 1994.

• 2 The phasing out of measures referred to in paragraph 1(b) shall be carried out according to timetables to be presented to the Committee on Safeguards by the Members concerned not later than 180 days after the date of entry into force of the WTO Agreement. These timetables shall provide for all measures referred to in paragraph 1 to be phased out or brought into conformity with this Agreement within a period not exceeding four years after the date of entry into force of the WTO Agreement, subject to not more than one specific measure per importing Member149, the duration of which shall not extend beyond 31 December 1999. Any such exception must be mutually agreed between the Members directly concerned and notified to the Committee on Safeguards for its review and acceptance within 90 days of the entry into force of the WTO Agreement. The Annex to this Agreement indicates a measure which has been agreed as falling under this exception.

• 3 Members shall not encourage or support the adoption or maintenance by public and private enterprises of non-governmental measures equivalent to those referred to in paragraph 1.

Article 12. Notification and Consultation

• 1 A Member shall immediately notify the Committee on Safeguards upon:

  • a) initiating an investigatory process relating to serious injury or threat thereof and the reasons for it;

  • b) making a finding of serious injury or threat thereof caused by increased imports; and

  • c) taking a decision to apply or extend a safeguard measure.

• 2 In making the notifications referred to in paragraphs 1b) and 1c), the Member proposing to apply or extend a safeguard measure shall provide the Committee on Safeguards with all pertinent information, which shall include evidence of serious injury or threat thereof caused by increased imports, precise description of the product involved and the proposed measure, proposed date of introduction, expected duration and timetable for progressive liberalization. In the case of an extension of a measure, evidence that the industry concerned is adjusting shall also be provided. The Council for Trade in Goods or the Committee on Safeguards may request such additional information as they may consider necessary from the Member proposing to apply or extend the measure.

• 3 A Member proposing to apply or extend a safeguard measure shall provide adequate opportunity for prior consultations with those Members having a substantial interest as exporters of the product concerned, with a view to, inter alia, reviewing the information provided under paragraph 2, exchanging views on the measure and reaching an understanding on ways to achieve the objective set out in paragraph 1 of Article 8.

• 4 A Member shall make a notification to the Committee on Safeguards before taking a provisional safeguard measure referred to in Article 6. Consultations shall be initiated immediately after the measure is taken.

• 5 The results of the consultations referred to in this Article, as well as the results of mid-term reviews referred to in paragraph 4 of Article 7, any form of compensation referred to in paragraph 1 of Article 8, and proposed suspensions of concessions and other obligations referred to in paragraph 2 of Article 8, shall be notified immediately to the Council for Trade in Goods by the Members concerned.

• 6 Members shall notify promptly the Committee on Safeguards of their laws, regulations and administrative procedures relating to safeguard measures as well as any modifications made to them.

• 7 Members maintaining measures described in Article 10 and paragraph 1 of Article 11 which exist on the date of entry into force of the WTO Agreement shall notify such measures to the Committee on Safeguards not later than 60 days after the date of entry into force of the WTO Agreement.

• 8 Any Member may notify the Committee on Safeguards of all laws, regulations, administrative procedures and any measures or actions dealt with in this Agreement that have not been notified by other Members that are required by this Agreement to make such notifications.

• 9 Any Member may notify the Committee on Safeguards of any non-governmental measures referred to in paragraph 3 of Article 11.

• 10 All notifications to the Council for Trade in Goods referred to in this Agreement shall normally be made through the Committee on Safeguards.

• 11 The provisions on notification in this Agreement shall not require any Member to disclose confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private.

Article 13. Surveillance

• 1 A Committee on Safeguards is hereby established, under the authority of the Council for Trade in Goods, which shall be open to the participation of any Member indicating its wish to serve on it. The Committee will have the following functions:

  • a) to monitor, and report annually to the Council for Trade in Goods on, the general implementation of this Agreement and make recommendations towards its improvement;

  • b) to find, upon request of an affected Member, whether or not the procedural requirements of this Agreement have been complied with in connection with a safeguard measure, and report its findings to the Council for Trade in Goods;

  • c) to assist Members, if they so request, in their consultations under the provisions of this Agreement;

  • d) to examine measures covered by Article 10 and paragraph 1 of Article 11, monitor the phase-out of such measures and report as appropriate to the Council for Trade in Goods;

  • e) to review, at the request of the Member taking a safeguard measure, whether proposals to suspend concessions or other obligations are "substantially equivalent", and report as appropriate to the Council for Trade in Goods;

  • f) to receive and review all notifications provided for in this Agreement and report as appropriate to the Council for Trade in Goods; and

  • g) to perform any other function connected with this Agreement that the Council for Trade in Goods may determine.

• 2 To assist the Committee in carrying out its surveillance function, the Secretariat shall prepare annually a factual report on the operation of this Agreement based on notifications and other reliable information available to it.

Article 14. Dispute Settlement

The provisions of Articles XXII and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding shall apply to consultations and the settlement of disputes arising under this Agreement.

Annex EXCEPTION REFERRED TO IN PARAGRAPH 2 OF ARTICLE 11

Members concerned	Product	Termination
EC/Japan	Passenger cars, off road vehicles, light commercial vehicles, light trucks (up to 5 tonnes), and the same vehicles in wholly knocked-down form (CKD sets).	31 December 1999

ANNEX 1B. General agreement on trade in services

Members,

Recognizing the growing importance of trade in services for the growth and development of the world economy;

Wishing to establish a multilateral framework of principles and rules for trade in services with a view to the expansion of such trade under conditions of transparency and progressive liberalization and as a means of promoting the economic growth of all trading partners and the development of developing countries;

Desiring the early achievement of progressively higher levels of liberalization of trade in services through successive rounds of multilateral negotiations aimed at promoting the interests of all participants on a mutually advantageous basis and at securing an overall balance of rights and obligations, while giving due respect to national policy objectives;

Recognizing the right of Members to regulate, and to introduce new regulations, on the supply of services within their territories in order to meet national policy objectives and, given asymmetries existing with respect to the degree of development of services regulations in different countries, the particular need of developing countries to exercise this right;

Desiring to facilitate the increasing participation of developing countries in trade in services and the expansion of their service exports including, inter alia, through the strengthening of their domestic services capacity and its efficiency and competitiveness;

Taking particular account of the serious difficulty of the least-developed countries in view of their special economic situation and their development, trade and financial needs;

Hereby agree as follows:

PART I. SCOPE AND DEFINITION

Article I. Scope and Definition

• 1 This Agreement applies to measures by Members affecting trade in services.

• 2 For the purposes of this Agreement, trade in services is defined as the supply of a service:

  • a) from the territory of one Member into the territory of any other Member;

  • b) in the territory of one Member to the service consumer of any other Member;

  • c) by a service supplier of one Member, through commercial presence in the territory of any other Member;

  • d) by a service supplier of one Member, through presence of natural persons of a Member in the territory of any other Member.

• 3 For the purposes of this Agreement:

  • a) "measures by Members" means measures taken by:

    • i) central, regional or local governments and authorities; and

    • ii) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;

    In fulfilling its obligations and commitments under the Agreement, each Member shall take such reasonable measures as may be available to it to ensure their observance by regional and local governments and authorities and non-governmental bodies within its territory;

  • b) "services" includes any service in any sector except services supplied in the exercise of governmental authority;

  • c) "a service supplied in the exercise of governmental authority" means any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers.

PART II. GENERAL OBLIGATIONS AND DISCIPLINES

Article II. Most-Favoured-Nation Treatment

• 1 With respect to any measure covered by this Agreement, each Member shall accord immediately and unconditionally to services and service suppliers of any other Member treatment no less favourable than that it accords to like services and service suppliers of any other country.

• 2 A Member may maintain a measure inconsistent with paragraph 1 provided that such a measure is listed in, and meets the conditions of, the Annex on Article II Exemptions.

• 3 The provisions of this Agreement shall not be so construed as to prevent any Member from conferring or according advantages to adjacent countries in order to facilitate exchanges limited to contiguous frontier zones of services that are both locally produced and consumed.

Article III. Transparency

• 1 Each Member shall publish promptly and, except in emergency situations, at the latest by the time of their entry into force, all relevant measures of general application which pertain to or affect the operation of this Agreement. International agreements pertaining to or affecting trade in services to which a Member is a signatory shall also be published.

• 2 Where publication as referred to in paragraph 1 is not practicable, such information shall be made otherwise publicly available.

• 3 Each Member shall promptly and at least annually inform the Council for Trade in Services of the introduction of any new, or any changes to existing, laws, regulations or administrative guidelines which significantly affect trade in services covered by its specific commitments under this Agreement.

• 4 Each Member shall respond promptly to all requests by any other Member for specific information on any of its measures of general application or international agreements within the meaning of paragraph 1. Each Member shall also establish one or more enquiry points to provide specific information to other Members, upon request, on all such matters as well as those subject to the notification requirement in paragraph 3. Such enquiry points shall be established within two years from the date of entry into force of the Agreement Establishing the WTO (referred to in this Agreement as the “WTO Agreement”). Appropriate flexibility with respect to the time-limit within which such enquiry points are to be established may be agreed upon for individual developing country Members. Enquiry points need not be depositories of laws and regulations.

• 5 Any Member may notify to the Council for Trade in Services any measure, taken by any other Member, which it considers affects the operation of this Agreement.

Article III bis. Disclosure of Confidential Information

Nothing in this Agreement shall require any Member to provide confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private.

Article IV. Increasing Participation of Developing Countries

• 1 The increasing participation of developing country Members in world trade shall be facilitated through negotiated specific commitments, by different Members pursuant to Parts III and IV of this Agreement, relating to:

  • a) the strengthening of their domestic services capacity and its efficiency and competitiveness, inter alia through access to technology on a commercial basis;

  • b) the improvement of their access to distribution channels and information networks; and

  • c) the liberalization of market access in sectors and modes of supply of export interest to them.

• 2 Developed country Members, and to the extent possible other Members, shall establish contact points within two years from the date of entry into force of the WTO Agreement to facilitate the access of developing country Members' service suppliers to information, related to their respective markets, concerning:

  • a) commercial and technical aspects of the supply of services;

  • b) registration, recognition and obtaining of professional qualifications; and

  • c) the availability of services technology.

• 3 Special priority shall be given to the least-developed country Members in the implementation of paragraphs 1 and 2. Particular account shall be taken of the serious difficulty of the least-developed countries in accepting negotiated specific commitments in view of their special economic situation and their development, trade and financial needs.

Article V. Economic Integration

• 1 This Agreement shall not prevent any of its Members from being a party to or entering into an agreement liberalizing trade in services between or among the parties to such an agreement, provided that such an agreement:

  • a) has substantial sectoral coverage150, and

  • b) provides for the absence or elimination of substantially all discrimination, in the sense of Article XVII, between or among the parties, in the sectors covered under subparagraph (a), through:

    • i) elimination of existing discriminatory measures, and/or

    • ii) prohibition of new or more discriminatory measures,

    either at the entry into force of that agreement or on the basis of a reasonable time-frame, except for measures permitted under Articles XI, XII, XIV and XIV bis.

• 2 In evaluating whether the conditions under paragraph 1b) are met, consideration may be given to the relationship of the agreement to a wider process of economic integration or trade liberalization among the countries concerned.

• 3

  • a) Where developing countries are parties to an agreement of the type referred to in paragraph 1, flexibility shall be provided for regarding the conditions set out in paragraph 1, particularly with reference to subparagraph b) thereof, in accordance with the level of development of the countries concerned, both overall and in individual sectors and subsectors.

  • b) Notwithstanding paragraph 6, in the case of an agreement of the type referred to in paragraph 1 involving only developing countries, more favourable treatment may be granted to juridical persons owned or controlled by natural persons of the parties to such an agreement.

• 4 Any agreement referred to in paragraph 1 shall be designed to facilitate trade between the parties to the agreement and shall not in respect of any Member outside the agreement raise the overall level of barriers to trade in services within the respective sectors or subsectors compared to the level applicable prior to such an agreement.

• 5 If, in the conclusion, enlargement or any significant modification of any agreement under paragraph 1, a Member intends to withdraw or modify a specific commitment inconsistently with the terms and conditions set out in its Schedule, it shall provide at least 90 days advance notice of such modification or withdrawal and the procedure set forth in paragraphs 2, 3 and 4 of Article XXI shall apply.

• 6 A service supplier of any other Member that is a juridical person constituted under the laws of a party to an agreement referred to in paragraph 1 shall be entitled to treatment granted under such agreement, provided that it engages in substantive business operations in the territory of the parties to such agreement.

• 7

  • a) Members which are parties to any agreement referred to in paragraph 1 shall promptly notify any such agreement and any enlargement or any significant modification of that agreement to the Council for Trade in Services. They shall also make available to the Council such relevant information as may be requested by it. The Council may establish a working party to examine such an agreement or enlargement or modification of that agreement and to report to the Council on its consistency with this Article.

  • b) Members which are parties to any agreement referred to in paragraph 1 which is implemented on the basis of a time-frame shall report periodically to the Council for Trade in Services on its implementation. The Council may establish a working party to examine such reports if it deems such a working party necessary.

  • c) Based on the reports of the working parties referred to in subparagraphs a) and b), the Council may make recommendations to the parties as it deems appropriate.

• 8 A Member which is a party to any agreement referred to in paragraph 1 may not seek compensation for trade benefits that may accrue to any other Member from such agreement.

Article V bis. Labour Markets Integration Agreements

This Agreement shall not prevent any of its Members from being a party to an agreement establishing full integration151of the labour markets between or among the parties to such an agreement, provided that such an agreement:

• a) exempts citizens of parties to the agreement from requirements concerning residency and work permits;

• b) is notified to the Council for Trade in Services.

Article VI. Domestic Regulation

• 1 In sectors where specific commitments are undertaken, each Member shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.

• 2

  • a) Each Member shall maintain or institute as soon as practicable judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected service supplier, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, the Member shall ensure that the procedures in fact provide for an objective and impartial review.

  • b) The provisions of subparagraph a) shall not be construed to require a Member to institute such tribunals or procedures where this would be inconsistent with its constitutional structure or the nature of its legal system.

• 3 Where authorization is required for the supply of a service on which a specific commitment has been made, the competent authorities of a Member shall, within a reasonable period of time after the submission of an application considered complete under domestic laws and regulations, inform the applicant of the decision concerning the application. At the request of the applicant, the competent authorities of the Member shall provide, without undue delay, information concerning the status of the application.

• 4 With a view to ensuring that measures relating to qualification requirements and procedures, technical standards and licensing requirements do not constitute unnecessary barriers to trade in services, the Council for Trade in Services shall, through appropriate bodies it may establish, develop any necessary disciplines. Such disciplines shall aim to ensure that such requirements are, inter alia:

  • a) based on objective and transparent criteria, such as competence and the ability to supply the service;

  • b) not more burdensome than necessary to ensure the quality of the service;

  • c) in the case of licensing procedures, not in themselves a restriction on the supply of the service.

• 5

  • a) In sectors in which a Member has undertaken specific commitments, pending the entry into force of disciplines developed in these sectors pursuant to paragraph 4, the Member shall not apply licensing and qualification requirements and technical standards that nullify or impair such specific commitments in a manner which:

    • i) does not comply with the criteria outlined in subparagraphs 4a), b) or c); and

    • ii) could not reasonably have been expected of that Member at the time the specific commitments in those sectors were made,

  • b) In determining whether a Member is in conformity with the obligation under paragraph 5a), account shall be taken of international standards of relevant international organizations152applied by that Member.

• 6 In sectors where specific commitments regarding professional services are undertaken, each Member shall provide for adequate procedures to verify the competence of professionals of any other Member.

Article VII. Recognition

• 1 For the purposes of the fulfilment, in whole or in part, of its standards or criteria for the authorization, licensing or certification of services suppliers, and subject to the requirements of paragraph 3, a Member may recognize the education or experience obtained, requirements met, or licenses or certifications granted in a particular country. Such recognition, which may be achieved through harmonization or otherwise, may be based upon an agreement or arrangement with the country concerned or may be accorded autonomously.

• 2 A Member that is a party to an agreement or arrangement of the type referred to in paragraph 1, whether existing or future, shall afford adequate opportunity for other interested Members to negotiate their accession to such an agreement or arrangement or to negotiate comparable ones with it. Where a Member accords recognition autonomously, it shall afford adequate opportunity for any other Member to demonstrate that education, experience, licenses, or certifications obtained or requirements met in that other Member's territory should be recognized.

• 3 A Member shall not accord recognition in a manner which would constitute a means of discrimination between countries in the application of its standards or criteria for the authorization, licensing or certification of services suppliers, or a disguised restriction on trade in services.

• 4 Each Member shall:

  • a) within 12 months from the date on which the WTO Agreement takes effect for it, inform the Council for Trade in Services of its existing recognition measures and state whether such measures are based on agreements or arrangements of the type referred to in paragraph 1;

  • b) promptly inform the Council for Trade in Services as far in advance as possible of the opening of negotiations on an agreement or arrangement of the type referred to in paragraph 1 in order to provide adequate opportunity to any other Member to indicate their interest in participating in the negotiations before they enter a substantive phase;

  • c) promptly inform the Council for Trade in Services when it adopts new recognition measures or significantly modifies existing ones and state whether the measures are based on an agreement or arrangement of the type referred to in paragraph 1.

• 5 Wherever appropriate, recognition should be based on multilaterally agreed criteria. In appropriate cases, Members shall work in cooperation with relevant intergovernmental and non-governmental organizations towards the establishment and adoption of common international standards and criteria for recognition and common international standards for the practice of relevant services trades and professions.

Article VIII. Monopolies and Exclusive Service Suppliers

• 1 Each Member shall ensure that any monopoly supplier of a service in its territory does not, in the supply of the monopoly service in the relevant market, act in a manner inconsistent with that Member's obligations under Article II and specific commitments.

• 2 Where a Member's monopoly supplier competes, either directly or through an affiliated company, in the supply of a service outside the scope of its monopoly rights and which is subject to that Member's specific commitments, the Member shall ensure that such a supplier does not abuse its monopoly position to act in its territory in a manner inconsistent with such commitments.

• 3 The Council for Trade in Services may, at the request of a Member which has a reason to believe that a monopoly supplier of a service of any other Member is acting in a manner inconsistent with paragraph 1 or 2, request the Member establishing, maintaining or authorizing such supplier to provide specific information concerning the relevant operations.

• 4 If, after the date of entry into force of the WTO Agreement, a Member grants monopoly rights regarding the supply of a service covered by its specific commitments, that Member shall notify the Council for Trade in Services no later than three months before the intended implementation of the grant of monopoly rights and the provisions of paragraphs 2, 3 and 4 of Article XXI shall apply.

• 5 The provisions of this Article shall also apply to cases of exclusive service suppliers, where a Member, formally or in effect, a) authorizes or establishes a small number of service suppliers and b) substantially prevents competition among those suppliers in its territory.

Article IX. Business Practices

• 1 Members recognize that certain business practices of service suppliers, other than those falling under Article VIII, may restrain competition and thereby restrict trade in services.

• 2 Each Member shall, at the request of any other Member, enter into consultations with a view to eliminating practices referred to in paragraph 1. The Member addressed shall accord full and sympathetic consideration to such a request and shall cooperate through the supply of publicly available non-confidential information of relevance to the matter in question. The Member addressed shall also provide other information available to the requesting Member, subject to its domestic law and to the conclusion of satisfactory agreement concerning the safeguarding of its confidentiality by the requesting Member.

Article X. Emergency Safeguard Measures

• 1 There shall be multilateral negotiations on the question of emergency safeguard measures based on the principle of non-discrimination. The results of such negotiations shall enter into effect on a date not later than three years from the date of entry into force of the WTO Agreement.

• 2 In the period before the entry into effect of the results of the negotiations referred to in paragraph 1, any Member may, notwithstanding the provisions of paragraph 1 of Article XXI, notify the Council on Trade in Services of its intention to modify or withdraw a specific commitment after a period of one year from the date on which the commitment enters into force; provided that the Member shows cause to the Council that the modification or withdrawal cannot await the lapse of the three-year period provided for in paragraph 1 of Article XXI.

• 3 The provisions of paragraph 2 shall cease to apply three years after the date of entry into force of the WTO Agreement.

Article XI. Payments and Transfers

• 1 Except under the circumstances envisaged in Article XII, a Member shall not apply restrictions on international transfers and payments for current transactions relating to its specific commitments.

• 2 Nothing in this Agreement shall affect the rights and obligations of the members of the International Monetary Fund under the Articles of Agreement of the Fund, including the use of exchange actions which are in conformity with the Articles of Agreement, provided that a Member shall not impose restrictions on any capital transactions inconsistently with its specific commitments regarding such transactions, except under Article XII or at the request of the Fund.

Article XII. Restrictions to Safeguard the Balance of Payments

• 1 In the event of serious balance-of-payments and external financial difficulties or threat thereof, a Member may adopt or maintain restrictions on trade in services on which it has undertaken specific commitments, including on payments or transfers for transactions related to such commitments. It is recognized that particular pressures on the balance of payments of a Member in the process of economic development or economic transition may necessitate the use of restrictions to ensure, inter alia, the maintenance of a level of financial reserves adequate for the implementation of its programme of economic development or economic transition.

• 2 The restrictions referred to in paragraph 1:

  • a) shall not discriminate among Members;

  • b) shall be consistent with the Articles of Agreement of the International Monetary Fund;

  • c) shall avoid unnecessary damage to the commercial, economic and financial interests of any other Member;

  • d) shall not exceed those necessary to deal with the circumstances described in paragraph 1;

  • e) shall be temporary and be phased out progressively as the situation specified in paragraph 1 improves.

• 3 In determining the incidence of such restrictions, Members may give priority to the supply of services which are more essential to their economic or development programmes. However, such restrictions shall not be adopted or maintained for the purpose of protecting a particular service sector.

• 4 Any restrictions adopted or maintained under paragraph 1, or any changes therein, shall be promptly notified to the General Council.

• 5

  • a) Members applying the provisions of this Article shall consult promptly with the Committee on Balance-of-Payments Restrictions on restrictions adopted under this Article.

  • b) The Ministerial Conference shall establish procedures153for periodic consultations with the objective of enabling such recommendations to be made to the Member concerned as it may deem appropriate.

  • c) Such consultations shall assess the balance-of-payment situation of the Member concerned and the restrictions adopted or maintained under this Article, taking into account, inter alia, such factors as:

    • i) the nature and extent of the balance-of-payments and the external financial difficulties;

    • ii) the external economic and trading environment of the consulting Member;

    • iii) alternative corrective measures which may be available.

  • d) The consultations shall address the compliance of any restrictions with paragraph 2, in particular the progressive phaseout of restrictions in accordance with paragraph 2e).

  • e) In such consultations, all findings of statistical and other facts presented by the International Monetary Fund relating to foreign exchange, monetary reserves and balance of payments, shall be accepted and conclusions shall be based on the assessment by the Fund of the balance-of-payments and the external financial situation of the consulting Member.

• 6 If a Member which is not a member of the International Monetary Fund wishes to apply the provisions of this Article, the Ministerial Conference shall establish a review procedure and any other procedures necessary.

Article XIII. Government Procurement

• 1 Articles II, XVI and XVII shall not apply to laws, regulations or requirements governing the procurement by governmental agencies of services purchased for governmental purposes and not with a view to commercial resale or with a view to use in the supply of services for commercial sale.

• 2 There shall be multilateral negotiations on government procurement in services under this Agreement within two years from the date of entry into force of the WTO Agreement.

Article XIV. General Exceptions

Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on trade in services, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Member of measures:

• a) necessary to protect public morals or to maintain public order;154

• b) necessary to protect human, animal or plant life or health;

• c) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement including those relating to:

  • i) the prevention of deceptive and fraudulent practices or to deal with the effects of a default on services contracts;

  • ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;

  • iii) safety;

• d) inconsistent with Article XVII, provided that the difference in treatment is aimed at ensuring the equitable or effective155imposition or collection of direct taxes in respect of services or service suppliers of other Members;

• e) inconsistent with Article II, provided that the difference in treatment is the result of an agreement on the avoidance of double taxation or provisions on the avoidance of double taxation in any other international agreement or arrangement by which the Member is bound.

Article XIV bis. Security Exceptions

• 1 Nothing in this Agreement shall be construed:

  • a) to require any Member to furnish any information, the disclosure of which it considers contrary to its essential security interests; or

  • b) to prevent any Member from taking any action which it considers necessary for the protection of its essential security interests:

    • i) relating to the supply of services as carried out directly or indirectly for the purpose of provisioning a military establishment;

    • ii) relating to fissionable and fusionable materials or the materials from which they are derived;

    • iii) taken in time of war or other emergency in international relations; or

  • c) to prevent any Member from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.

• 2 The Council for Trade in Services shall be informed to the fullest extent possible of measures taken under paragraphs 1b) and c) and of their termination.

Article XV. Subsidies

• 1 Members recognize that, in certain circumstances, subsidies may have distortive effects on trade in services. Members shall enter into negotiations with a view to developing the necessary multilateral disciplines to avoid such trade-distortive effects.156The negotiations shall also address the appropriateness of countervailing procedures. Such negotiations shall recognize the role of subsidies in relation to the development programmes of developing countries and take into account the needs of Members, particularly developing country Members, for flexibility in this area. For the purpose of such negotiations, Members shall exchange information concerning all subsidies related to trade in services that they provide to their domestic service suppliers.

• 2 Any Member which considers that it is adversely affected by a subsidy of another Member may request consultations with that Member on such matters. Such requests shall be accorded sympathetic consideration.

PART III. SPECIFIC COMMITMENTS

Article XVI. Market Access

• 1 With respect to market access through the modes of supply identified in Article I, each Member shall accord services and service suppliers of any other Member treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule.157

• 2 In sectors where market-access commitments are undertaken, the measures which a Member shall not maintain or adopt either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in its Schedule, are defined as:

  • a) limitations on the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test;

  • b) limitations on the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;

  • c) limitations on the total number of service operations or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test;158

  • d) limitations on the total number of natural persons that may be employed in a particular service sector or that a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service in the form of numerical quotas or the requirement of an economic needs test;

  • e) measures which restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service; and

  • f) limitations on the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment.

Article XVII. National Treatment

• 1 In the sectors inscribed in its Schedule, and subject to any conditions and qualifications set out therein, each Member shall accord to services and service suppliers of any other Member, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers.159

• 2 A Member may meet the requirement of paragraph 1 by according to services and service suppliers of any other Member, either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers.

• 3 Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of the Member compared to like services or service suppliers of any other Member.

Article XVIII. Additional Commitments

Members may negotiate commitments with respect to measures affecting trade in services not subject to scheduling under Articles XVI or XVII, including those regarding qualifications, standards or licensing matters. Such commitments shall be inscribed in a Member's Schedule.

PART IV. PROGRESSIVE LIBERALIZATION

Article XIX. Negotiation of Specific Commitments

• 1 In pursuance of the objectives of this Agreement, Members shall enter into successive rounds of negotiations, beginning not later than five years from the date of entry into force of the WTO Agreement and periodically thereafter, with a view to achieving a progressively higher level of liberalization. Such negotiations shall be directed to the reduction or elimination of the adverse effects on trade in services of measures as a means of providing effective market access. This process shall take place with a view to promoting the interests of all participants on a mutually advantageous basis and to securing an overall balance of rights and obligations.

• 2 The process of liberalization shall take place with due respect for national policy objectives and the level of development of individual Members, both overall and in individual sectors. There shall be appropriate flexibility for individual developing country Members for opening fewer sectors, liberalizing fewer types of transactions, progressively extending market access in line with their development situation and, when making access to their markets available to foreign service suppliers, attaching to such access conditions aimed at achieving the objectives referred to in Article IV.

• 3 For each round, negotiating guidelines and procedures shall be established. For the purposes of establishing such guidelines, the Council for Trade in Services shall carry out an assessment of trade in services in overall terms and on a sectoral basis with reference to the objectives of this Agreement, including those set out in paragraph 1 of Article IV. Negotiating guidelines shall establish modalities for the treatment of liberalization undertaken autonomously by Members since previous negotiations, as well as for the special treatment for least-developed country Members under the provisions of paragraph 3 of Article IV.

• 4 The process of progressive liberalization shall be advanced in each such round through bilateral, plurilateral or multilateral negotiations directed towards increasing the general level of specific commitments undertaken by Members under this Agreement.

Article XX. Schedules of Specific Commitments

• 1 Each Member shall set out in a schedule the specific commitments it undertakes under Part III of this Agreement. With respect to sectors where such commitments are undertaken, each Schedule shall specify:

  • a) terms, limitations and conditions on market access;

  • b) conditions and qualifications on national treatment;

  • c) undertakings relating to additional commitments;

  • d) where appropriate the time-frame for implementation of such commitments; and

  • e) the date of entry into force of such commitments.

• 2 Measures inconsistent with both Articles XVI and XVII shall be inscribed in the column relating to Article XVI. In this case the inscription will be considered to provide a condition or qualification to Article XVII as well.

• 3 Schedules of specific commitments shall be annexed to this Agreement and shall form an integral part thereof.

Article XXI. Modification of Schedules

• 1

  • a) A Member (referred to in this Article as the "modifying Member") may modify or withdraw any commitment in its Schedule, at any time after three years have elapsed from the date on which that commitment entered into force, in accordance with the provisions of this Article.

  • b) A modifying Member shall notify its intent to modify or withdraw a commitment pursuant to this Article to the Council for Trade in Services no later than three months before the intended date of implementation of the modification or withdrawal.

• 2

  • a) At the request of any Member the benefits of which under this Agreement may be affected (referred to in this Article as an "affected Member") by a proposed modification or withdrawal notified under subparagraph 1b), the modifying Member shall enter into negotiations with a view to reaching agreement on any necessary compensatory adjustment. In such negotiations and agreement, the Members concerned shall endeavour to maintain a general level of mutually advantageous commitments not less favourable to trade than that provided for in Schedules of specific commitments prior to such negotiations.

  • b) Compensatory adjustments shall be made on a most-favoured-nation basis.

• 3

  • a) If agreement is not reached between the modifying Member and any affected Member before the end of the period provided for negotiations, such affected Member may refer the matter to arbitration. Any affected Member that wishes to enforce a right that it may have to compensation must participate in the arbitration.

  • b) If no affected Member has requested arbitration, the modifying Member shall be free to implement the proposed modification or withdrawal.

• 4

  • a) The modifying Member may not modify or withdraw its commitment until it has made compensatory adjustments in conformity with the findings of the arbitration.

  • b) If the modifying Member implements its proposed modification or withdrawal and does not comply with the findings of the arbitration, any affected Member that participated in the arbitration may modify or withdraw substantially equivalent benefits in conformity with those findings. Notwithstanding Article II, such a modification or withdrawal may be implemented solely with respect to the modifying Member.

• 5 The Council for Trade in Services shall establish procedures for rectification or modification of Schedules. Any Member which has modified or withdrawn scheduled commitments under this Article shall modify its Schedule according to such procedures.

PART V. INSTITUTIONAL PROVISIONS

Article XXII. Consultation

• 1 Each Member shall accord sympathetic consideration to, and shall afford adequate opportunity for, consultation regarding such representations as may be made by any other Member with respect to any matter affecting the operation of this Agreement. The Dispute Settlement Understanding (DSU) shall apply to such consultations.

• 2 The Council for Trade in Services or the Dispute Settlement Body (DSB) may, at the request of a Member, consult with any Member or Members in respect of any matter for which it has not been possible to find a satisfactory solution through consultation under paragraph 1.

• 3 A Member may not invoke Article XVII, either under this Article or Article XXIII, with respect to a measure of another Member that falls within the scope of an international agreement between them relating to the avoidance of double taxation. In case of disagreement between Members as to whether a measure falls within the scope of such an agreement between them, it shall be open to either Member to bring this matter before the Council for Trade in Services.160The Council shall refer the matter to arbitration. The decision of the arbitrator shall be final and binding on the Members.

Article XXIII. Dispute Settlement and Enforcement

• 1 If any Member should consider that any other Member fails to carry out its obligations or specific commitments under this Agreement, it may with a view to reaching a mutually satisfactory resolution of the matter have recourse to the DSU.

• 2 If the DSB considers that the circumstances are serious enough to justify such action, it may authorize a Member or Members to suspend the application to any other Member or Members of obligations and specific commitments in accordance with Article 22 of the DSU.

• 3 If any Member considers that any benefit it could reasonably have expected to accrue to it under a specific commitment of another Member under Part III of this Agreement is being nullified or impaired as a result of the application of any measure which does not conflict with the provisions of this Agreement, it may have recourse to the DSU. If the measure is determined by the DSB to have nullified or impaired such a benefit, the Member affected shall be entitled to a mutually satisfactory adjustment on the basis of paragraph 2 of Article XXI, which may include the modification or withdrawal of the measure. In the event an agreement cannot be reached between the Members concerned, Article 22 of the DSU shall apply.

Article XXIV. Council for Trade in Services

• 1 The Council for Trade in Services shall carry out such functions as may be assigned to it to facilitate the operation of this Agreement and further its objectives. The Council may establish such subsidiary bodies as it considers appropriate for the effective discharge of its functions.

• 2 The Council and, unless the Council decides otherwise, its subsidiary bodies shall be open to participation by representatives of all Members.

• 3 The Chairman of the Council shall be elected by the Members.

Article XXV. Technical Cooperation

• 1 Service suppliers of Members which are in need of such assistance shall have access to the services of contact points referred to in paragraph 2 of Article IV.

• 2 Technical assistance to developing countries shall be provided at the multilateral level by the Secretariat and shall be decided upon by the Council for Trade in Services.

Article XXVI. Relationship with Other International Organizations

The General Council shall make appropriate arrangements for consultation and cooperation with the United Nations and its specialized agencies as well as with other intergovernmental organizations concerned with services.

PART VI. FINAL PROVISIONS

ARTICLE XXVII. DENIAL OF BENEFITS

A MEMBER MAY DENY THE BENEFITS OF THIS AGREEMENT:

• a) to the supply of a service, if it establishes that the service is supplied from or in the territory of a non-Member or of a Member to which the denying Member does not apply the WTO Agreement;

• b) in the case of the supply of a maritime transport service, if it establishes that the service is supplied:

  • i) by a vessel registered under the laws of a non-Member or of a Member to which the denying Member does not apply the WTO Agreement, and

  • ii) by a person which operates and/or uses the vessel in whole or in part but which is of a non-Member or of a Member to which the denying Member does not apply the WTO Agreement;

• c) to a service supplier that is a juridical person, if it establishes that it is not a service supplier of another Member, or that it is a service supplier of a Member to which the denying Member does not apply the WTO Agreement.

Article XXVIII. Definitions

For the purpose of this Agreement:

• a) "measure" means any measure by a Member, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;

• b) "supply of a service" includes the production, distribution, marketing, sale and delivery of a service;

• c) "measures by Members affecting trade in services" include measures in respect of

  • i) the purchase, payment or use of a service;

  • ii) the access to and use of, in connection with the supply of a service, services which are required by those Members to be offered to the public generally;

  • iii) the presence, including commercial presence, of persons of a Member for the supply of a service in the territory of another Member;

• d) "commercial presence" means any type of business or professional establishment, including through

  • i) the constitution, acquisition or maintenance of a juridical person, or

  • ii) the creation or maintenance of a branch or a representative office, within the territory of a Member for the purpose of supplying a service;

• e) "sector" of a service means,

  • i) with reference to a specific commitment, one or more, or all, subsectors of that service, as specified in a Member's Schedule,

  • ii) otherwise, the whole of that service sector, including all of its subsectors;

• f) "service of another Member" means a service which is supplied,

  • i) from or in the territory of that other Member, or in the case of maritime transport, by a vessel registered under the laws of that other Member, or by a person of that other Member which supplies the service through the operation of a vessel and/or its use in whole or in part; or

  • ii) in the case of the supply of a service through commercial presence or through the presence of natural persons, by a service supplier of that other Member;

• g) "service supplier" means any person that supplies a service;161

• h) "monopoly supplier of a service" means any person, public or private, which in the relevant market of the territory of a Member is authorized or established formally or in effect by that Member as the sole supplier of that service;

• i) "service consumer" means any person that receives or uses a service;

• j) "person" means either a natural person or a juridical person;

• k) "natural person of another Member" means a natural person who resides in the territory of that other Member or any other Member, and who under the law of that other Member:

  • i) is a national of that other Member; or

  • ii) has the right of permanent residence in that other Member, in the case of a Member which:

    • 1. does not have nationals; or

    • 2. accords substantially the same treatment to its permanent residents as it does to its nationals in respect of measures affecting trade in services, as notified in its acceptance of or accession to the WTO Agreement, provided that no Member is obligated to accord to such permanent residents treatment more favourable than would be accorded by that other Member to such permanent residents. Such notification shall include the assurance to assume, with respect to those permanent residents, in accordance with its laws and regulations, the same responsibilities that other Member bears with respect to its nationals;

• l) "juridical person" means any legal entity duly constituted or otherwise organized under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally-owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association;

• m) "juridical person of another Member" means a juridical person which is either:

  • i) constituted or otherwise organized under the law of that other Member, and is engaged in substantive business operations in the territory of that Member or any other Member; or

  • ii) in the case of the supply of a service through commercial presence, owned or controlled by:

    • 1. natural persons of that Member; or

    • 2. juridical persons of that other Member identified under subparagraph (i);

• n) a juridical person is:

  • i) "owned" by persons of a Member if more than 50 per cent of the equity interest in it is beneficially owned by persons of that Member;

  • ii) "controlled" by persons of a Member if such persons have the power to name a majority of its directors or otherwise to legally direct its actions;

  • iii) "affiliated" with another person when it controls, or is controlled by, that other person; or when it and the other person are both controlled by the same person;

• o) "direct taxes" comprise all taxes on total income, on total capital or on elements of income or of capital, including taxes on gains from the alienation of property, taxes on estates, inheritances and gifts, and taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation.

Article XXIX. Annexes

The Annexes to this Agreement are an integral part of this Agreement.

Annex on Article II exemptions

Scope

• 1. This Annex specifies the conditions under which a Member, at the entry into force of this Agreement, is exempted from its obligations under paragraph 1 of Article II.

• 2. Any new exemptions applied for after the date of entry into force of the WTO Agreement shall be dealt with under paragraph 3 of Article IX of that Agreement.

Review

• 3. The Council for Trade in Services shall review all exemptions granted for a period of more than 5 years. The first such review shall take place no more than 5 years after the entry into force of the WTO Agreement.

• 4. The Council for Trade in Services in a review shall:

  • a) examine whether the conditions which created the need for the exemption still prevail; and

  • b) determine the date of any further review.

Termination

• 5. The exemption of a Member from its obligations under paragraph 1 of Article II of the Agreement with respect to a particular measure terminates on the date provided for in the exemption.

• 6. In principle, such exemptions should not exceed a period of 10 years. In any event, they shall be subject to negotiation in subsequent trade liberalizing rounds.

• 7. A Member shall notify the Council for Trade in Services at the ter mination of the exemption period that the inconsistent measure has been brought into conformity with paragraph 1 of Article II of the Agreement.

Lists of Article II Exemptions 162

Annex on movement of natural persons supplying services under the agreement

• 1. This Annex applies to measures affecting natural persons who are service suppliers of a Member, and natural persons of a Member who are employed by a service supplier of a Member, in respect of the supply of a service.

• 2. The Agreement shall not apply to measures affecting natural persons seeking access to the employment market of a Member, nor shall it apply to measures regarding citizenship, residence or employment on a permanent basis.

• 3. In accordance with Parts III and IV of the Agreement, Members may negotiate specific commitments applying to the movement of all categories of natural persons supplying services under the Agreement. Natural persons covered by a specific commitment shall be allowed to supply the service in accordance with the terms of that commitment.

• 4. The Agreement shall not prevent a Member from applying measures to regulate the entry of natural persons into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to any Member under the terms of a specific commitment.163

Annex on air transport services

• 1. This Annex applies to measures affecting trade in air transport services, whether scheduled or non-scheduled, and ancillary services. It is confirmed that any specific commitment or obligation assumed under this Agreement shall not reduce or affect a Member's obligations under bilateral or multilateral agreements that are in effect on the date of entry into force of the WTO Agreement.

• 2. The Agreement, including its dispute settlement procedures, shall not apply to measures affecting:

  • a) traffic rights, however granted; or

  • b) services directly related to the exercise of traffic rights, except as provided in paragraph 3 of this Annex.

• 3. The Agreement shall apply to measures affecting:

  • a) aircraft repair and maintenance services;

  • b) the selling and marketing of air transport services;

  • c) computer reservation system (CRS) services.

• 4. The dispute settlement procedures of the Agreement may be invoked only where obligations or specific commitments have been assumed by the concerned Members and where dispute settlement procedures in bilateral and other multilateral agreements or arrangements have been exhausted.

• 5. The Council for Trade in Services shall review periodically, and at least every five years, developments in the air transport sector and the operation of this Annex with a view to considering the possible further application of the Agreement in this sector.

• 6. Definitions:

  • a) "Aircraft repair and maintenance services" mean such activities when undertaken on an aircraft or a part thereof while it is withdrawn from service and do not include so-called line maintenance.

  • b) "Selling and marketing of air transport services" mean opportunities for the air carrier concerned to sell and market freely its air transport services including all aspects of marketing such as market research, advertising and distribution. These activities do not include the pricing of air transport services nor the applicable conditions.

  • c) "Computer reservation system (CRS) services" mean services provided by computerised systems that contain information about air carriers' schedules, availability, fares and fare rules, through which reservations can be made or tickets may be issued.

  • d) "Traffic rights" mean the right for scheduled and non-scheduled services to operate and/or to carry passengers, cargo and mail for remuneration or hire from, to, within, or over the territory of a Member, including points to be served, routes to be operated, types of traffic to be carried, capacity to be provided, tariffs to be charged and their conditions, and criteria for designation of airlines, including such criteria as number, ownership, and control.

Annex on financial services

1. Scope and Definition

• a) This Annex applies to measures affecting the supply of financial services. Reference to the supply of a financial service in this Annex shall mean the supply of a service as defined in paragraph 2 of Article I of the Agreement.

• b) For the purposes of subparagraph 3b) of Article I of the Agreement, "services supplied in the exercise of governmental authority" means the following:

  • i) activities conducted by a central bank or monetary authority or by any other public entity in pursuit of monetary or exchange rate policies;

  • ii) activities forming part of a statutory system of social security or public retirement plans; and

  • iii) other activities conducted by a public entity for the account or with the guarantee or using the financial resources of the Government.

• c) For the purposes of subparagraph 3(b) of Article I of the Agreement, if a Member allows any of the activities referred to in subparagraphs (b)(ii) or (b)(iii) of this paragraph to be conducted by its financial service suppliers in competition with a public entity or a financial service supplier, "services" shall include such activities.

• d) Subparagraph 3c) of Article I of the Agreement shall not apply to services covered by this Annex.

2. Domestic Regulation

• a) Notwithstanding any other provisions of the Agreement, a Member shall not be prevented from taking measures for prudential reasons, including for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed by a financial service supplier, or to ensure the integrity and stability of the financial system. Where such measures do not conform with the provisions of the Agreement, they shall not be used as a means of avoiding the Member's commitments or obligations under the Agreement.

• b) Nothing in the Agreement shall be construed to require a Member to disclose information relating to the affairs and accounts of individual customers or any confidential or proprietary information in the possession of public entities.

3. Recognition

• a) A Member may recognize prudential measures of any other country in determining how the Member's measures relating to financial services shall be applied. Such recognition, which may be achieved through harmonization or otherwise, may be based upon an agreement or arrangement with the country concerned or may be accorded autonomously.

• b) A Member that is a party to such an agreement or arrangement referred to in subparagraph a), whether future or existing, shall afford adequate opportunity for other interested Members to negotiate their accession to such agreements or arrangements, or to negotiate comparable ones with it, under circumstances in which there would be equivalent regulation, oversight, implementation of such regulation, and, if appropriate, procedures concerning the sharing of information between the parties to the agreement or arrangement. Where a Member accords recognition autonomously, it shall afford adequate opportunity for any other Member to demonstrate that such circumstances exist.

• c) Where a Member is contemplating according recognition to prudential measures of any other country, paragraph 4b) of Article VII shall not apply.

4. Dispute Settlement

Panels for disputes on prudential issues and other financial matters shall have the necessary expertise relevant to the specific financial service under dispute.

5. Definitions

For the purposes of this Annex:

• a) A financial service is any service of a financial nature offered by a financial service supplier of a Member. Financial services include all insurance and insurance-related services, and all banking and other financial services (excluding insurance). Financial services include the following activities:

  Insurance and insurance-related services

  • i) Direct insurance (including co-insurance):

    • A) life

    • B) non-life

  • ii) Reinsurance and retrocession;

  • iii) Insurance intermediation, such as brokerage and agency;

  • iv) Services auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services.

  Banking and other financial services (excluding insurance)

  • v) Acceptance of deposits and other repayable funds from the public;

  • vi) Lending of all types, including consumer credit, mortgage credit, factoring and financing of commercial transaction;

  • vii) Financial leasing;

  • viii) All payment and money transmission services, including credit, charge and debit cards, travellers cheques and bankers drafts;

  • ix) Guarantees and commitments;

  • x) Trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:

    • A) money market instruments (including cheques, bills, certificates of deposits);

    • B) foreign exchange;

    • C) derivative products including, but not limited to, futures and options;

    • D) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements;

    • E) transferable securities;

    • F) other negotiable instruments and financial assets, including bullion.

  • xi) Participation in issues of all kinds of securities, including underwriting and placement as agent (whether publicly or privately) and provision of services related to such issues;

  • xii) Money broking;

  • xiii) Asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository and trust services;

  • xiv) Settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;

  • xv) Provision and transfer of financial information, and financial data processing and related software by suppliers of other financial services;

  • xvi) Advisory, intermediation and other auxiliary financial services on all the activities listed in subparagraphs v) through xv), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy.

• b) A financial service supplier means any natural or juridical person of a Member wishing to supply or supplying financial services but the term "financial service supplier" does not include a public entity.

• c) "Public entity" means:

  • i) a government, a central bank or a monetary authority, of a Member, or an entity owned or controlled by a Member, that is principally engaged in carrying out governmental functions or activities for governmental purposes, not including an entity principally engaged in supplying financial services on commercial terms; or

  • ii) a private entity, performing functions normally performed by a central bank or monetary authority, when exercising those functions.

Second Annex on financial services

• 1. Notwithstanding Article II of the Agreement and paragraphs 1 and 2 of the Annex on Article II Exemptions, a Member may, during a period of 60 days beginning four months after the date of entry into force of the WTO Agreement, list in that Annex measures relating to financial services which are inconsistent with paragraph 1 of Article II of the Agreement.

• 2. Notwithstanding Article XXI of the Agreement, a Member may, during a period of 60 days beginning four months after the date of entry into force of the WTO Agreement, improve, modify or withdraw all or part of the specific commitments on financial services inscribed in its Schedule.

• 3. The Council for Trade in Services shall establish any procedures necessary for the application of paragraphs 1 and 2.

Annex on negotiations on maritime transport services

1.

Article II and the Annex on Article II Exemptions, including the requirement to list in the Annex any measure inconsistent with most-favoured-nation treatment that a Member will maintain, shall enter into force for international shipping, auxiliary services and access to and use of port facilities only on:

• a) the implementation date to be determined under paragraph 4 of the Ministerial Decision on Negotiations on Maritime Transport Services; or,

• b) should the negotiations not succeed, the date of the final report of the Negotiating Group on Maritime Transport Services provided for in that Decision.

2.

Paragraph I shall not apply to any specific commitment on maritime transport services which is inscribed in a Member's Schedule.

3.

From the conclusion of the negotiations referred to in paragraph 1, and before the implementation date, a Member may improve, modify or withdraw all or part of its specific commitments in this sector without offering compensation, notwithstanding the provisions of Article XXI.

Annex on telecommunications

1. Objectives

Recognizing the specificities of the telecommunications services sector and, in particular, its dual role as a distinct sector of economic activity and as the underlying transport means for other economic activities, the Members have agreed to the following Annex with the objective of elaborating upon the provisions of the Agreement with respect to measures affecting access to and use of public telecommunications transport networks and services. Accordingly, this Annex provides notes and supplementary provisions to the Agreement.

2. Scope

• a) This Annex shall apply to all measures of a Member that affect access to and use of public telecommunications transport networks and services.164

• b) This Annex shall not apply to measures affecting the cable or broadcast distribution of radio or television programming.

• c) Nothing in this Annex shall be construed:

  • i) to require a Member to authorize a service supplier of any other Member to establish, construct, acquire, lease, operate, or supply telecommunications transport networks or services, other than as provided for in its Schedule; or

  • ii) to require a Member (or to require a Member to oblige service suppliers under its jurisdiction) to establish, construct, acquire, lease, operate or supply telecommunications transport networks or services not offered to the public generally.

3. Definitions

For the purposes of this Annex:

• a) "Telecommunications" means the transmission and reception of signals by any electromagnetic means.

• b) "Public telecommunications transport service" means any telecommunications transport service required, explicitly or in effect, by a Member to be offered to the public generally. Such services may include, inter alia, telegraph, telephone, telex, and data transmission typically involving the real-time transmission of customer-supplied information between two or more points without any end-to-end change in the form or content of the customer's information.

• c) "Public telecommunications transport network" means the public telecommunications infrastructure which permits telecommunications between and among defined network termination points.

• d) "Intra-corporate communications" means telecommunications through which a company communicates within the company or with or among its subsidiaries, branches and, subject to a Member's domestic laws and regulations, affiliates. For these purposes, "subsidiaries", "branches" and, where applicable, "affiliates" shall be as defined by each Member. "Intra-corporate communications" in this Annex excludes commercial or non-commercial services that are supplied to companies that are not related subsidiaries, branches or affiliates, or that are offered to customers or potential customers.

• e) Any reference to a paragraph or subparagraph of this Annex includes all subdivisions thereof.

4. Transparency

In the application of Article III of the Agreement, each Member shall ensure that relevant information on conditions affecting access to and use of public telecommunications transport networks and services is publicly available, including: tariffs and other terms and conditions of service; specifications of technical interfaces with such networks and services; information on bodies responsible for the preparation and adoption of standards affecting such access and use; conditions applying to attachment of terminal or other equipment; and notifications, registration or licensing requirements, if any.

5. Access to and use of Public Telecommunications Transport Networks and Services

• a) Each Member shall ensure that any service supplier of any other Member is accorded access to and use of public telecommunications transport networks and services on reasonable and non-discriminatory terms and conditions, for the supply of a service included in its Schedule. This obligation shall be applied, inter alia, through paragraphs b) through f). 165

• b) Each Member shall ensure that service suppliers of any other Member have access to and use of any public telecommunications transport network or service offered within or across the border of that Member, including private leased circuits, and to this end shall ensure, subject to paragraphs e) and f), that such suppliers are permitted:

  • i) to purchase or lease and attach terminal or other equipment which interfaces with the network and which is necessary to supply a supplier's services;

  • ii) to interconnect private leased or owned circuits with public telecommunications transport networks and services or with circuits leased or owned by another service supplier; and

  • iii) to use operating protocols of the service supplier's choice in the supply of any service, other than as necessary to ensure the availability of telecommunications transport networks and services to the public generally.

• c) Each Member shall ensure that service suppliers of any other Member may use public telecommunications transport networks and services for the movement of information within and across borders, including for intra-corporate communications of such service suppliers, and for access to information contained in data bases or otherwise stored in machine-readable form in the territory of any Member. Any new or amended measures of a Member significantly affecting such use shall be notified and shall be subject to consultation, in accordance with relevant provisions of the Agreement.

• d) Notwithstanding the preceding paragraph, a Member may take such measures as are necessary to ensure the security and confidentiality of messages, subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.

• e) Each Member shall ensure that no condition is imposed on access to and use of public telecommunications transport networks and services other than as necessary.

  • i) to safeguard the public service responsibilities of suppliers of public telecommunications transport networks and services, in particular their ability to make their networks or services available to the public generally;

  • ii) to protect the technical integrity of public telecommunications transport networks or services; or

  • iii) to ensure that service suppliers of any other Member do not supply services unless permitted pursuant to commitments in the Member's Schedule.

• f) Provided that they satisfy the criteria set out in paragraph (e), conditions for access to and use of public telecommunications transport networks and services may include:

  • i) restrictions on resale or shared use of such services;

  • ii) a requirement to use specified technical interfaces, including interface protocols, for inter-connection with such networks and services;

  • iii) requirements, where necessary, for the inter-operability of such services and to encourage the achievement of the goals set out in paragraph 7a);

  • iv) type approval of terminal or other equipment which interfaces with the network and technical requirements relating to the attachment of such equipment to such networks;

  • v) restrictions on inter-connection of private leased or owned circuits with such networks or services or with circuits leased or owned by another service supplier; or

  • vi) notification, registration and licensing.

• g) Notwithstanding the preceding paragraphs of this section, a developing country Member may, consistent with its level of development, place reasonable conditions on access to and use of public telecommunications transport networks and services necessary to strengthen its domestic telecommunications infrastructure and service capacity and to increase its participation in international trade in telecommunications services. Such conditions shall be specified in the Member's Schedule.

6. Technical Cooperation

• a) Members recognize that an efficient, advanced telecommunications infrastructure in countries, particularly developing countries, is essential to the expansion of their trade in services. To this end, Members endorse and encourage the participation, to the fullest extent practicable, of developed and developing countries and their suppliers of public telecommunications transport networks and services and other entities in the development programmes of international and regional organizations, including the International Telecommunication Union, the United Nations Development Programme, and the International Bank for Reconstruction and Development.

• b) Members shall encourage and support telecommunications cooperation among developing countries at the international, regional and subregional levels.

• c) In cooperation with relevant international organizations, Members shall make available, where practicable, to developing countries information with respect to telecommunications services and developments in telecommunications and information technology to assist in strengthening their domestic telecommunications services sector.

• d) Members shall give special consideration to opportunities for the least-developed countries to encourage foreign suppliers of telecommunications services to assist in the transfer of technology, training and other activities that support the development of their telecommunications infrastructure and expansion of their telecommunications services trade.

7. Relation to International Organizations and Agreements

• a) Members recognize the importance of international standards for global compatibility and inter-operability of telecommunication networks and services and undertake to promote such standards through the work of relevant international bodies, including the International Telecommunication Union and the International Organization for Standardization.

• b) Members recognize the role played by intergovernmental and non-governmental organizations and agreements in ensuring the efficient operation of domestic and global telecommunications services, in particular the International Telecommunication Union. Members shall make appropriate arrangements, where relevant, for consultation with such organizations on matters arising from the implementation of this Annex.

Annex on negotiations on basic telecommunications

• 1. Article II and the Annex on Article II Exemptions, including the requirement to list in the Annex any measure inconsistent with most-favoured-nation treatment that a Member will maintain, shall enter into force for basic telecommunications only on:

  • a) the implementation date to be determined under paragraph 5 of the Ministerial Decision on Negotiations on Basic Telecommunications; or,

  • b) should the negotiations not succeed, the date of the final report of the Negotiating Group on Basic Telecommunications provided for in that Decision.

• 2. Paragraph 1 shall not apply to any specific commitment on basic telecommunications which is inscribed in a Member's Schedule.

ANNEX 1C. Agreement on trade-related aspects of intellectual property rights

Members,

Desiring to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade;

Recognizing, to this end, the need for new rules and disciplines concerning:

• a) the applicability of the basic principles of GATT 1994 and of relevant international intellectual property agreements or conventions;

• b) the provision of adequate standards and principles concerning the availability, scope and use of trade-related intellectual property rights;

• c) the provision of effective and appropriate means for the enforcement of trade-related intellectual property rights, taking into account differences in national legal systems;

• d) the provision of effective and expeditious procedures for the multilateral prevention and settlement of disputes between governments; and

• e) transitional arrangements aiming at the fullest participation in the results of the negotiations;

  Recognizing the need for a multilateral framework of principles, rules and disciplines dealing with international trade in counterfeit goods;

  Recognizing that intellectual property rights are private rights;

  Recognizing the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives;

  Recognizing also the special needs of the least-developed country Members in respect of maximum flexibility in the domestic implementation of laws and regulations in order to enable them to create a sound and viable technological base;

  Emphasizing the importance of reducing tensions by reaching strengthened commitments to resolve disputes on trade-related intellectual property issues through multilateral procedures;

  Desiring to establish a mutually supportive relationship between the WTO and the World Intellectual Property Organization (referred to in this Agreement as "WIPO") as well as other relevant international organizations;

  Hereby agree as follows:

PART I. GENERAL PROVISIONS AND BASIS PRINCIPLES

Article 1. Nature and Scope of Obligations

• 1 Members shall give effect to the provisions of this Agreement. Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement. Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice.

• 2 For the purposes of this Agreement, the term “intellectual property” refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II.

• 3 Members shall accord the treatment provided for in this Agreement to the nationals of other Members.166In respect of the relevant intellectual property right, the nationals of other Members shall be understood as those natural or legal persons that would meet the criteria for eligibility for protection provided for in the Paris Convention (1967), the Berne Convention (1971), the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits, were all Members of the WTO members of those conventions.167Any Member availing itself of the possibilities provided in paragraph 3 of Article 5 or paragraph 2 of Article 6 of the Rome Convention shall make a notification as foreseen in those provisions to the Council for Trade-Related Aspects of Intellectual Property Rights (the “Council for TRIPS”).

Article 2. Intellectual Property Conventions

• 1 In respect of Parts II, III and IV of this Agreement, Members shall comply with Articles 1 through 12, and Article 19, of the Paris Convention (1967).

• 2 Nothing in Parts I to IV of this Agreement shall derogate from existing obligations that Members may have to each other under the Paris Convention, the Berne Convention, the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits.

Article 3. National Treatment

• 1 Each Member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals with regard to the protection168of intellectual property, subject to the exceptions already provided in, respectively, the Paris Convention (1967), the Berne Convention (1971), the Rome Convention or the Treaty on Intellectual Property in Respect of Integrated Circuits. In respect of performers, producers of phonograms and broadcasting organizations, this obligation only applies in respect of the rights provided under this Agreement. Any Member availing itself of the possibilities provided in Article 6 of the Berne Convention (1971) or paragraph 1(b) of Article 16 of the Rome Convention shall make a notification as foreseen in those provisions to the Council for TRIPS.

• 2 Members may avail themselves of the exceptions permitted under paragraph 1 in relation to judicial and administrative procedures, including the designation of an address for service or the appointment of an agent within the jurisdiction of a Member, only where such exceptions are necessary to secure compliance with laws and regulations which are not inconsistent with the provisions of this Agreement and where such practices are not applied in a manner which would constitute a disguised restriction on trade.

Article 4. Most-Favoured-Nation Treatment

With regard to the protection of intellectual property, any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members. Exempted from this obligation are any advantage, favour, privilege or immunity accorded by a Member:

• a) deriving from international agreements on judicial assistance or law enforcement of a general nature and not particularly confined to the protection of intellectual property;

• b) granted in accordance with the provisions of the Berne Convention (1971) or the Rome Convention authorizing that the treatment accorded be a function not of national treatment but of the treatment accorded in another country;

• c) in respect of the rights of performers, producers of phonograms and broadcasting organizations not provided under this Agreement;

• d) deriving from international agreements related to the protection of intellectual property which entered into force prior to the entry into force of the WTO Agreement, provided that such agreements are notified to the Council for TRIPS and do not constitute an arbitrary or unjustifiable discrimination against nationals of other Members.

Article 5. Multilateral Agreements on Acquisition or Maintenance of Protection

The obligations under Articles 3 and 4 do not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.

Article 6. Exhaustion

For the purposes of dispute settlement under this Agreement, subject to the provisions of Articles 3 and 4 nothing in this Agreement shall be used to address the issue of the exhaustion of intellectual property rights.

Article 7. Objectives

The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

Article 8. Principles

• 1 Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.

• 2 Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

PART II. STANDARDS CONCERNING THE AVAILABILITY, SCOPE AND USE OF INTELLECTUAL PROPERTY RIGHTS

SECTION 1. COPYRIGHT AND RELATED RIGHTS

Article 9. Relation to the Berne Convention

• 1 Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.

• 2 Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.

Article 10. Computer Programs and Compilations of Data

• 1 Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).

• 2 Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.

Article 11. Rental Rights

In respect of at least computer programs and cinematographic works, a Member shall provide authors and their successors in title the right to authorize or to prohibit the commercial rental to the public of originals or copies of their copyright works. A Member shall be excepted from this obligation in respect of cinematographic works unless such rental has led to widespread copying of such works which is materially impairing the exclusive right of reproduction conferred in that Member on authors and their successors in title. In respect of computer programs, this obligation does not apply to rentals where the program itself is not the essential object of the rental.

Article 12. Term of Protection

Whenever the term of protection of a work, other than a photographic work or a work of applied art, is calculated on a basis other than the life of a natural person, such term shall be no less than 50 years from the end of the calendar year of authorized publication, or, failing such authorized publication within 50 years from the making of the work, 50 years from the end of the calendar year of making.

Article 13. Limitations and Exceptions

Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.

Article 14. Protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasting Organizations

• 1 In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorization: the fixation of their unfixed performance and the reproduction of such fixation. Performers shall also have the possibility of preventing the following acts when undertaken without their authorization: the broadcasting by wireless means and the communication to the public of their live performance.

• 2 Producers of phonograms shall enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.

• 3 Broadcasting organizations shall have the right to prohibit the following acts when undertaken without their authorization: the fixation, the reproduction of fixations, and the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of television broadcasts of the same. Where Members do not grant such rights to broadcasting organizations, they shall provide owners of copyright in the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of the Berne Convention (1971).

• 4 The provisions of Article 11 in respect of computer programs shall apply mutatis mutandis to producers of phonograms and any other right holders in phonograms as determined in a Member's law. If on 15 April 1994 a Member has in force a system of equitable remuneration of right holders in respect of the rental of phonograms, it may maintain such system provided that the commercial rental of phonograms is not giving rise to the material impairment of the exclusive rights of reproduction of right holders.

• 5 The term of the protection available under this Agreement to performers and producers of phonograms shall last at least until the end of a period of 50 years computed from the end of the calendar year in which the fixation was made or the performance took place. The term of protection granted pursuant to paragraph 3 shall last for at least 20 years from the end of the calendar year in which the broadcast took place.

• 6 Any Member may, in relation to the rights conferred under paragraphs 1, 2 and 3, provide for conditions, limitations, exceptions and reservations to the extent permitted by the Rome Convention. However, the provisions of Article 18 of the Berne Convention (1971) shall also apply, mutatis mutandis, to the rights of performers and producers of phonograms in phonograms.

SECTION 2. TRADEMARKS

Article 15. Protectable Subject Matter

• 1 Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. Such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs, shall be eligible for registration as trademarks. Where signs are not inherently capable of distinguishing the relevant goods or services, Members may make registrability depend on distinctiveness acquired through use. Members may require, as a condition of registration, that signs be visually perceptible.

• 2 Paragraph 1 shall not be understood to prevent a Member from denying registration of a trademark on other grounds, provided that they do not derogate from the provisions of the Paris Convention (1967).

• 3 Members may make registrability depend on use. However, actual use of a trademark shall not be a condition for filing an application for registration. An application shall not be refused solely on the ground that intended use has not taken place before the expiry of a period of three years from the date of application.

• 4 The nature of the goods or services to which a trademark is to be applied shall in no case form an obstacle to registration of the trademark.

• 5 Members shall publish each trademark either before it is registered or promptly after it is registered and shall afford a reasonable opportunity for petitions to cancel the registration. In addition, Members may afford an opportunity for the registration of a trademark to be opposed.

Article 16. Rights Conferred

• 1 The owner of a registered trademark shall have the exclusive right to prevent all third parties not having the owner's consent from using in the course of trade identical or similar signs for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion. In case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed. The rights described above shall not prejudice any existing prior rights, nor shall they affect the possibility of Members making rights available on the basis of use.

• 2 Article 6bis of the Paris Convention (1967) shall apply, mutatis mutandis, to services. In determining whether a trademark is well-known, Members shall take account of the knowledge of the trademark in the relevant sector of the public, including knowledge in the Member concerned which has been obtained as a result of the promotion of the trademark.

• 3 Article 6bis of the Paris Convention (1967) shall apply, mutatis mutandis, to goods or services which are not similar to those in respect of which a trademark is registered, provided that use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the registered trade-mark and provided that the interests of the owner of the registered trademark are likely to be damaged by such use.

Article 17. Exceptions

Members may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interests of the owner of the trademark and of third parties.

Article 18. Term of Protection

Initial registration, and each renewal of registration, of a trademark shall be for a term of no less than seven years. The registration of a trademark shall be renewable indefinitely.

Article 19. Requirement of Use

• 1 If use is required to maintain a registration, the registration may be cancelled only after an uninterrupted period of at least three years of non-use, unless valid reasons based on the existence of obstacles to such use are shown by the trademark owner. Circumstances arising independently of the will of the owner of the trademark which constitute an obstacle to the use of the trademark, such as import restrictions on or other government requirements for goods or services protected by the trademark, shall be recognized as valid reasons for non-use.

• 2 When subject to the control of its owner, use of a trademark by another person shall be recognized as use of the trademark for the purpose of maintaining the registration.

Article 20. Other Requirements

The use of a trademark in the course of trade shall not be unjustifiably encumbered by special requirements, such as use with another trademark, use in a special form or use in a manner detrimental to its capability to distinguish the goods or services of one undertaking from those of other undertakings. This will not preclude a requirement prescribing the use of the trademark identifying the undertaking producing the goods or services along with, but without linking it to, the trademark distinguishing the specific goods or services in question of that undertaking.

Article 21. Licensing and Assignment

Members may determine conditions on the licensing and assignment of trademarks, it being understood that the compulsory licensing of trademarks shall not be permitted and that the owner of a registered trademark shall have the right to assign the trademark with or without the transfer of the business to which the trademark belongs.

SECTION 3. GEOGRAPHICAL INDICATIONS

Article 22. Protection of Geographical Indications

• 1 Geographical indications are, for the purposes of this Agreement, indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.

• 2 In respect of geographical indications, Members shall provide the legal means for interested parties to prevent:

  • a) the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good;

  • b) any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967).

• 3 A Member shall, ex officio if its legislation so permits or at the request of an interested party, refuse or invalidate the registration of a trademark which contains or consists of a geographical indication with respect to goods not originating in the territory indicated, if use of the indication in the trademark for such goods in that Member is of such a nature as to mislead the public as to the true place of origin.

• 4 The protection under paragraphs 1, 2 and 3 shall be applicable against a geographical indication which, although literally true as to the territory, region or locality in which the goods originate, falsely represents to the public that the goods originate in another territory.

Article 23. Additional Protection for Geographical Indications for Wines and Spirits

• 1 Each Member shall provide the legal means for interested parties to prevent use of a geographical indication identifying wines for wines not originating in the place indicated by the geographical indication in question or identifying spirits for spirits not originating in the place indicated by the geographical indication in question, even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as "kind", "type", "style", "imitation" or the like.169

• 2 The registration of a trademark for wines which contains or consists of a geographical indication identifying wines or for spirits which contains or consists of a geographical indication identifying spirits shall be refused or invalidated, ex officio if a Member's legislation so permits or at the request of an interested party, with respect to such wines or spirits not having this origin.

• 3 In the case of homonymous geographical indications for wines, protection shall be accorded to each indication, subject to the provisions of paragraph 4 of Article 22. Each Member shall determine the practical conditions under which the homonymous indications in question will be differentiated from each other, taking into account the need to ensure equitable treatment of the producers concerned and that consumers are not misled.

• 4 In order to facilitate the protection of geographical indications for wines, negotiations shall be undertaken in the Council for TRIPS concerning the establishment of a multilateral system of notification and registration of geographical indications for wines eligible for protection in those Members participating in the system.

Article 24. International Negotiations; Exceptions

• 1 Members agree to enter into negotiations aimed at increasing the protection of individual geographical indications under Article 23. The provisions of paragraphs 4 through 8 below shall not be used by a Member to refuse to conduct negotiations or to conclude bilateral or multilateral agreements. In the context of such negotiations, Members shall be willing to consider the continued applicability of these provisions to individual geographical indications whose use was the subject of such negotiations.

• 2 The Council for TRIPS shall keep under review the application of the provisions of this Section; the first such review shall take place within two years of the entry into force of the WTO Agreement. Any matter affecting the compliance with the obligations under these provisions may be drawn to the attention of the Council, which, at the request of a Member, shall consult with any Member or Members in respect of such matter in respect of which it has not been possible to find a satisfactory solution through bilateral or plurilateral consultations between the Members concerned. The Council shall take such action as may be agreed to facilitate the operation and further the objectives of this Section.

• 3 In implementing this Section, a Member shall not diminish the protection of geographical indications that existed in that Member immediately prior to the date of entry into force of the WTO Agreement.

• 4 Nothing in this Section shall require a Member to prevent continued and similar use of a particular geographical indication of another Member identifying wines or spirits in connection with goods or services by any of its nationals or domiciliaries who have used that geographical indication in a continuous manner with regard to the same or related goods or services in the territory of that Member either a) for at least 10 years preceding 15 April 1994 or b) in good faith preceding that date.

• 5 Where a trademark has been applied for or registered in good faith, or where rights to a trademark have been acquired through use in good faith either:

  • a) before the date of application of these provisions in that Member as defined in Part VI; or

  • b) before the geographical indication is protected in its country of origin;

    measures adopted to implement this Section shall not prejudice eligibility for or the validity of the registration of a trademark, or the right to use a trademark, on the basis that such a trademark is identical with, or similar to, a geographical indication.

• 6 Nothing in this Section shall require a Member to apply its provisions in respect of a geographical indication of any other Member with respect to goods or services for which the relevant indication is identical with the term customary in common language as the common name for such goods or services in the territory of that Member. Nothing in this Section shall require a Member to apply its provisions in respect of a geographical indication of any other Member with respect to products of the vine for which the relevant indication is identical with the customary name of a grape variety existing in the territory of that Member as of the date of entry into force of the WTO Agreement.

• 7 A Member may provide that any request made under this Section in connection with the use or registration of a trademark must be presented within five years after the adverse use of the protected indication has become generally known in that Member or after the date of registration of the trademark in that Member provided that the trademark has been published by that date, if such date is earlier than the date on which the adverse use became generally known in that Member, provided that the geographical indication is not used or registered in bad faith.

• 8 The provisions of this Section shall in no way prejudice the right of any person to use, in the course of trade, that person's name or the name of that person's predecessor in business, except where such name is used in such a manner as to mislead the public.

• 9 There shall be no obligation under this Agreement to protect geographical indications which are not or cease to be protected in their country of origin, or which have fallen into disuse in that country.

SECTION 4. INDUSTRIAL DESIGNS

Article 25. Requirements for Protection

• 1 Members shall provide for the protection of independently created industrial designs that are new or original. Members may provide that designs are not new or original if they do not significantly differ from known designs or combinations of known design features. Members may provide that such protection shall not extend to designs dictated essentially by technical or functional considerations.

• 2 Each Member shall ensure that requirements for securing protection for textile designs, in particular in regard to any cost, examination or publication, do not unreasonably impair the opportunity to seek and obtain such protection. Members shall be free to meet this obligation through industrial design law or through copyright law.

Article 26. Protection

• 1 The owner of a protected industrial design shall have the right to prevent third parties not having the owner's consent from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design, when such acts are undertaken for commercial purposes.

• 2 Members may provide limited exceptions to the protection of industrial designs, provided that such exceptions do not unreasonably conflict with the normal exploitation of protected industrial designs and do not unreasonably prejudice the legitimate interests of the owner of the protected design, taking account of the legitimate interests of third parties.

• 3 The duration of protection available shall amount to at least 10 years.

SECTION 5. PATENTS

Article 27. Patentable Subject Matter

• 1 Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.170Subject to paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.

• 2 Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.

• 3 Members may also exclude from patentability:

  • a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals;

  • b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.

Article 28. Rights Conferred

• 1 A patent shall confer on its owner the following exclusive rights:

  • a) where the subject matter of a patent is a product, to prevent third parties not having the owner's consent from the acts of: making, using, offering for sale, selling, or importing171for these purposes that product;

  • b) where the subject matter of a patent is a process, to prevent third parties not having the owner's consent from the act of using the process, and from the acts of: using, offering for sale, selling, or importing for these purposes at least the product obtained directly by that process.

• 2 Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts.

Article 29. Conditions on Patent Applicants

• 1 Members shall require that an applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application,

• 2 Members may require an applicant for a patent to provide information concerning the applicant's corresponding foreign applications and grants.

Article 30. Exceptions to Rights Conferred

Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.

Article 31. Other Use Without Authorization of the Right Holder

Where the law of a Member allows for other use172of the subject matter of a patent without the authorization of the right holder, including use by the government or third parties authorized by the government, the following provisions shall be respected:

• a) authorization of such use shall be considered on its individual merits;

• b) such use may only be permitted if, prior to such use, the proposed user has made efforts to obtain authorization from the right holder on reasonable commercial terms and conditions and that such efforts have not been successful within a reasonable period of time. This requirement may be waived by a Member in the case of a national emergency or other circumstances of extreme urgency or in cases of public non-commercial use. In situations of national emergency or other circumstances of extreme urgency, the right holder shall, nevertheless, be notified as soon as reasonably practicable. In the case of public non-commercial use, where the government or contractor, without making a patent search, knows or has demonstrable grounds to know that a valid patent is or will be used by or for the government, the right holder shall be informed promptly;

• c) the scope and duration of such use shall be limited to the purpose for which it was authorized, and in the case of semi-conductor technology shall only be for public non-commercial use or to remedy a practice determined after judicial or administrative process to be anti-competitive;

• d) such use shall be non-exclusive;

• e) such use shall be non-assignable, except with that part of the enterprise or goodwill which enjoys such use;

• f) any such use shall be authorized predominantly for the supply of the domestic market of the Member authorizing such use;

• g) authorization for such use shall be liable, subject to adequate protection of the legitimate interests of the persons so authorized, to be terminated if and when the circumstances which led to it cease to exist and are unlikely to recur. The competent authority shall have the authority to review, upon motivated request, the continued existence of these circumstances;

• h) the right holder shall be paid adequate remuneration in the circumstances of each case, taking into account the economic value of the authorization;

• i) the legal validity of any decision relating to the authorization of such use shall be subject to judicial review or other independent review by a distinct higher authority in that Member;

• j) any decision relating to the remuneration provided in respect of such use shall be subject to judicial review or other independent review by a distinct higher authority in that Member;

• k) Members are not obliged to apply the conditions set forth in subparagraphs b) and f) where such use is permitted to remedy a practice determined after judicial or administrative process to be anti-competitive. The need to correct anti-competitive practices may be taken into account in determining the amount of remuneration in such cases. Competent authorities shall have the authority to refuse termination of authorization if and when the conditions which led to such authorization are likely to recur;

• l) where such use is authorized to permit the exploitation of a patent ("the second patent") which cannot be exploited without infringing another patent ("the first patent"), the following additional conditions shall apply:

  • i) the invention claimed in the second patent shall involve an important technical advance of considerable economic significance in relation to the invention claimed in the first patent;

  • ii) the owner of the first patent shall be entitled to a cross-licence on reasonable terms to use the invention claimed in the second patent; and

  • iii) the use authorized in respect of the first patent shall be non-assignable except with the assignment of the second patent.

Article 31 bis

• 1 The obligations of an exporting Member under Article 31f) shall not apply with respect to the grant by it of a compulsory licence to the extent necessary for the purposes of production of a pharmaceutical product(s) and its export to an eligible importing Member(s) in accordance with the terms set out in paragraph 2 of the Annex to this Agreement.

• 2 Where a compulsory licence is granted by an exporting Member under the system set out in this Article and the Annex to this Agreement, adequate remuneration pursuant to Article 31h) shall be paid in that Member taking into account the economic value to the importing Member of the use that has been authorized in the exporting Member. Where a compulsory licence is granted for the same products in the eligible importing Member, the obligation of that Member under Article 31 h) shall not apply in respect of those products for which remuneration in accordance with the first sentence of this paragraph is paid in the exporting Member.

• 3 With a view to harnessing economies of scale for the purposes of enhancing purchasing power for, and facilitating the local production of, pharmaceutical products: where a developing or least-developed country WTO Member is a party to a regional trade agreement within the meaning of Article XXIV of the GATT 1994 and the Decision of 28 November 1979 on Differential and More Favourable Treatment Reciprocity and Fuller Participation of Developing Countries (L/4903), at least half of the current membership of which is made up of countries presently on the United Nations list of least-developed countries, the obligation of that Member under Article 31f) shall not apply to the extent necessary to enable a pharmaceutical product produced or imported under a compulsory licence in that Member to be exported to the markets of those other developing or least-developed country parties to the regional trade agreement that share the health problem in question. It is understood that this will not prejudice the territorial nature of the patent rights in question.

• 4 Members shall not challenge any measures taken in conformity with the provisions of this Article and the Annex to this Agreement under subparagraphs 1b) and lc) of Article XXIII of GATT 1994.

• 5 This Article and the Annex to this Agreement are without prejudice to the rights, obligations and flexibilities that Members have under the provisions of this Agreement other than paragraphs f) and h) of Article 31, including those reaffirmed by the Declaration on the TRIPS Agreement and Public Health (WT/MIN(OI)/DEC/2), and to their interpretation. They are also without prejudice to the extent to which pharmaceutical products produced under a compulsory licence can be exported under the provisions of Article 31f).

Article 32. Revocation/Forfeiture

An opportunity for judicial review of any decision to revoke or forfeit a patent shall be available.

Article 33. Term of Protection

The term of protection available shall not end before the expiration of a period of twenty years counted from the filing date.173

Article 34. Process Patents: Burden of Proof

• 1 For the purposes of civil proceedings in respect of the infringement of the rights of the owner referred to in paragraph 1b) of Article 28, if the subject matter of a patent is a process for obtaining a product, the judicial authorities shall have the authority to order the defendant to prove that the process to obtain an identical product is different from the patented process. Therefore, Members shall provide, in at least one of the following circumstances, that any identical product when produced without the consent of the patent owner shall, in the absence of proof to the contrary, be deemed to have been obtained by the patented process:

  • a) if the product obtained by the patented process is new;

  • b) if there is a substantial likelihood that the identical product was made by the process and the owner of the patent has been unable through reasonable efforts to determine the process actually used.

• 2 Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on the alleged infringer only if the condition referred to in subparagraph a) is fulfilled or only if the condition referred to in subparagraph b) is fulfilled.

• 3 In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their manufacturing and business secrets shall be taken into account.

SECTION 6. LAYOUT-DESIGNS (TOPOGRAPHIES) OF INTEGRATED CIRCUITS

Article 35. Relation to the IPIC Treaty

Members agree to provide protection to the layout-designs (topographies) of integrated circuits (referred to in this Agreement as "layout-designs") in accordance with Articles 2 through 7 (other than paragraph 3 of Article 6), Article 12 and paragraph 3 of Article 16 of the Treaty on Intellectual Property in Respect of Integrated Circuits and, in addition, to comply with the following provisions.

Article 36. Scope of the Protection

Subject to the provisions of paragraph 1 of Article 37, Members shall consider unlawful the following acts if performed without the authorization of the right holder:174importing, selling, or otherwise distributing for commercial purposes a protected layout-design, an integrated circuit in which a protected layout-design is incorporated, or an article incorporating such an integrated circuit only in so far as it continues to contain an unlawfully reproduced layout-design.

Article 37. Acts Not Requiring the Authorization of the Right Holder

• 1 Notwithstanding Article 36, no Member shall consider unlawful the performance of any of the acts referred to in that Article in respect of an integrated circuit incorporating an unlawfully reproduced layout-design or any article incorporating such an integrated circuit where the person performing or ordering such acts did not know and had no reasonable ground to know, when acquiring the integrated circuit or article incorporating such an integrated circuit, that it incorporated an unlawfully reproduced layout-design. Members shall provide that, after the time that such person has received sufficient notice that the layout-design was unlawfully reproduced, that person may perform any of the acts with respect to the stock on hand or ordered before such time, but shall be liable to pay to the right holder a sum equivalent to a reasonable royalty such as would be payable under a freely negotiated licence in respect of such a layout-design.

• 2 The conditions set out in subparagraphs (a) through (k) of Article 31 shall apply mutatis mutandis in the event of any non-voluntary licensing of a layout-design or of its use by or for the government without the authorization of the right holder.

Article 38. Term of Protection

• 1 In Members requiring registration as a condition of protection, the term of protection of layout-designs shall not end before the expiration of a period of 10 years counted from the date of filing an application for registration or from the first commercial exploitation wherever in the world it occurs.

• 2 In Members not requiring registration as a condition for protection, layout-designs shall be protected for a term of no less than 10 years from the date of the first commercial exploitation wherever in the world it occurs.

• 3 Notwithstanding paragraphs 1 and 2, a Member may provide that protection shall lapse 15 years after the creation of the layout-design.

SECTION 7. PROTECTION OF UNDISCLOSED INFORMATION

Article 39

• 1 In the course of ensuring effective protection against unfair competition as provided in Article 10bis of the Paris Convention (1967), Members shall protect undisclosed information in accordance with paragraph 2 and data submitted to governments or governmental agencies in accordance with paragraph 3.

• 2 Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices175so long as such information:

  • a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;

  • b) has commercial value because it is secret; and

  • c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.

• 3 Members, when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which utilize new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, shall protect such data against unfair commercial use. In addition, Members shall protect such data against disclosure, except where necessary to protect the public, or unless steps are taken to ensure that the data are protected against unfair commercial use.

SECTION 8. CONTROL OF ANTI-COMPETITIVE PRACTICES IN CONTRACTUAL LICENCES

Article 40

• 1 Members agree that some licensing practices or conditions pertaining to intellectual property rights which restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology.

• 2 Nothing in this Agreement shall prevent Members from specifying in their legislation licensing practices or conditions that may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market. As provided above, a Member may adopt, consistently with the other provisions of this Agreement, appropriate measures to prevent or control such practices, which may include for example exclusive grantback conditions, conditions preventing challenges to validity and coercive package licensing, in the light of the relevant laws and regulations of that Member.

• 3 Each Member shall enter, upon request, into consultations with any other Member which has cause to believe that an intellectual property right owner that is a national or domiciliary of the Member to which the request for consultations has been addressed is undertaking practices in violation of the requesting Member's laws and regulations on the subject matter of this Section, and which wishes to secure compliance with such legislation, without prejudice to any action under the law and to the full freedom of an ultimate decision of either Member. The Member addressed shall accord full and sympathetic consideration to, and shall afford adequate opportunity for, consultations with the requesting Member, and shall cooperate through supply of publicly available non-confidential information of relevance to the matter in question and of other information available to the Member, subject to domestic law and to the conclusion of mutually satisfactory agreements concerning the safeguarding of its confidentiality by the requesting Member.

• 4 A Member whose nationals or domiciliaries are subject to proceedings in another Member concerning alleged violation of that other Member's laws and regulations on the subject matter of this Section shall, upon request, be granted an opportunity for consultations by the other Member under the same conditions as those foreseen in paragraph 3.

PART III. ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS

SECTION 1. GENERAL OBLIGATIONS

Article 41

• 1 Members shall ensure that enforcement procedures as specified in this Part are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.

• 2 Procedures concerning the enforcement of intellectual property rights shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.

• 3 Decisions on the merits of a case shall preferably be in writing and reasoned. They shall be made available at least to the parties to the proceeding without undue delay. Decisions on the merits of a case shall be based only on evidence in respect of which parties were offered the opportunity to be heard.

• 4 Parties to a proceeding shall have an opportunity for review by a judicial authority of final administrative decisions and, subject to jurisdictional provisions in a Member's law concerning the importance of a case, of at least the legal aspects of initial judicial decisions on the merits of a case. However, there shall be no obligation to provide an opportunity for review of acquittals in criminal cases.

• 5 It is understood that this Part does not create any obligation to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general, nor does it affect the capacity of Members to enforce their law in general. Nothing in this Part creates any obligation with respect to the distribution of resources as between enforcement of intellectual property rights and the enforcement of law in general.

SECTION 2. CIVIL AND ADMINISTRATIVE PROCEDURES AND REMEDIES

Article 42. Fair and Equitable Procedures

Members shall make available to right holders176civil judicial procedures concerning the enforcement of any intellectual property right covered by this Agreement. Defendants shall have the right to written notice which is timely and contains sufficient detail, including the basis of the claims. Parties shall be allowed to be represented by independent legal counsel, and procedures shall not impose overly burdensome requirements concerning mandatory personal appearances. All parties to such procedures shall be duly entitled to substantiate their claims and to present all relevant evidence. The procedure shall provide a means to identify and protect confidential information, unless this would be contrary to existing constitutional requirements.

Article 43. Evidence

• 1 The judicial authorities shall have the authority, where a party has presented reasonably available evidence sufficient to support its claims and has specified evidence relevant to substantiation of its claims which lies in the control of the opposing party, to order that this evidence be produced by the opposing party, subject in appropriate cases to conditions which ensure the protection of confidential information.

• 2 In cases in which a party to a proceeding voluntarily and without good reason refuses access to, or otherwise does not provide necessary information within a reasonable period, or significantly impedes a procedure relating to an enforcement action, a Member may accord judicial authorities the authority to make preliminary and final determinations, affirmative or negative, on the basis of the information presented to them, including the complaint or the allegation presented by the party adversely affected by the denial of access to information, subject to providing the parties an opportunity to be heard on the allegations or evidence.

Article 44. Injunctions

• 1 The judicial authorities shall have the authority to order a party to desist from an infringement, inter alia to prevent the entry into the channels of commerce in their jurisdiction of imported goods that involve the infringement of an intellectual property right, immediately after customs clearance of such goods. Members are not obliged to accord such authority in respect of protected subject matter acquired or ordered by a person prior to knowing or having reasonable grounds to know that dealing in such subject matter would entail the infringement of an intellectual property right.

• 2 Notwithstanding the other provisions of this Part and provided that the provisions of Part II specifically addressing use by governments, or by third parties authorized by a government, without the authorization of the right holder are complied with, Members may limit the remedies available against such use to payment of remuneration in accordance with subparagraph (h) of Article 31. In other cases, the remedies under this Part shall apply or, where these remedies are inconsistent with a Member's law, declaratory judgments and adequate compensation shall be available.

Article 45. Damages

• 1 The judicial authorities shall have the authority to order the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered because of an infringement of that person's intellectual property right by an infringer who knowingly, or with reasonable grounds to know, engaged in infringing activity.

• 2 The judicial authorities shall also have the authority to order the infringer to pay the right holder expenses, which may include appropriate attorney's fees. In appropriate cases, Members may authorize the judicial authorities to order recovery of profits and/or payment of pre-established damages even where the infringer did not knowingly, or with reasonable grounds to know, engage in infringing activity.

Article 46. Other Remedies

In order to create an effective deterrent to infringement, the judicial authorities shall have the authority to order that goods that they have found to be infringing be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to avoid any harm caused to the right holder, or, unless this would be contrary to existing constitutional requirements, destroyed. The judicial authorities shall also have the authority to order that materials and implements the predominant use of which has been in the creation of the infringing goods be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements. In considering such requests, the need for proportionality between the seriousness of the infringement and the remedies ordered as well as the interests of third parties shall be taken into account. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit release of the goods into the channels of commerce.

Article 47. Right of Information

Members may provide that the judicial authorities shall have the authority, unless this would be out of proportion to the seriousness of the infringement, to order the infringer to inform the right holder of the identity of third persons involved in the production and distribution of the infringing goods or services and of their channels of distribution.

Article 48. Indemnification of the Defendant

• 1 The judicial authorities shall have the authority to order a party at whose request measures were taken and who has abused enforcement procedures to provide to a party wrongfully enjoined or restrained adequate compensation for the injury suffered because of such abuse. The judicial authorities shall also have the authority to order the applicant to pay the defendant expenses, which may include appropriate attorney's fees.

• 2 In respect of the administration of any law pertaining to the protection or enforcement of intellectual property rights, Members shall only exempt both public authorities and officials from liability to appropriate remedial measures where actions are taken or intended in good faith in the course of the administration of that law.

Article 49. Administrative Procedures

To the extent that any civil remedy can be ordered as a result of administrative procedures on the merits of a case, such procedures shall conform to principles equivalent in substance to those set forth in this Section.

SECTION 3. PROVISIONAL MEASURES

Article 50

• 1 The judicial authorities shall have the authority to order prompt and effective provisional measures:

  • a) to prevent an infringement of any intellectual property right from occurring, and in particular to prevent the entry into the channels of commerce in their jurisdiction of goods, including imported goods immediately after customs clearance;

  • b) to preserve relevant evidence in regard to the alleged infringement.

• 2 The judicial authorities shall have the authority to adopt provisional measures inaudita altera parte where appropriate, in particular where any delay is likely to cause irreparable harm to the right holder, or where there is a demonstrable risk of evidence being destroyed.

• 3 The judicial authorities shall have the authority to require the applicant to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant is the right holder and that the applicant's right is being infringed or that such infringement is imminent, and to order the applicant to provide a security or equivalent assurance sufficient to protect the defendant and to prevent abuse.

• 4 Where provisional measures have been adopted inaudita altera parte, the parties affected shall be given notice, without delay after the execution of the measures at the latest. A review, including a right to be heard, shall take place upon request of the defendant with a view to deciding, within a reasonable period after the notification of the measures, whether these measures shall be modified, revoked or confirmed.

• 5 The applicant may be required to supply other information necessary for the identification of the goods concerned by the authority that will execute the provisional measures.

• 6 Without prejudice to paragraph 4, provisional measures taken on the basis of paragraphs 1 and 2 shall, upon request by the defendant, be revoked or otherwise cease to have effect, if proceedings leading to a decision on the merits of the case are not initiated within a reasonable period, to be determined by the judicial authority ordering the measures where a Member's law so permits or, in the absence of such a determination, not to exceed 20 working days or 31 calendar days, whichever is the longer.

• 7 Where the provisional measures are revoked or where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no infringement or threat of infringement of an intellectual property right, the judicial authorities shall have the authority to order the applicant, upon request of the defendant, to provide the defendant appropriate compensation for any injury caused by these measures.

• 8 To the extent that any provisional measure can be ordered as a result of administrative procedures, such procedures shall conform to principles equivalent in substance to those set forth in this Section.

SECTION 4. SPECIAL REQUIREMENTS RELATED TO BORDER MEASURES177

Article 51. Suspension of Release by Customs Authorities

Members shall, in conformity with the provisions set out below, adopt procedures178to enable a right holder, who has valid grounds for suspecting that the importation of counterfeit trademark or pirated copyright goods179may take place, to lodge an application in writing with competent authorities, administrative or judicial, for the suspension by the customs authorities of the release into free circulation of such goods. Members may enable such an application to be made in respect of goods which involve other infringements of intellectual property rights, provided that the requirements of this Section are met. Members may also provide for corresponding procedures concerning the suspension by the customs authorities of the release of infringing goods destined for exportation from their territories.

Article 52. Application

Any right holder initiating the procedures under Article 51 shall be required to provide adequate evidence to satisfy the competent authorities that, under the laws of the country of importation, there is prima facie an infringement of the right holder's intellectual property right and to supply a sufficiently detailed description of the goods to make them readily recognizable by the customs authorities. The competent authorities shall inform the applicant within a reasonable period whether they have accepted the application and, where determined by the competent authorities, the period for which the customs authorities will take action.

Article 53. Security or Equivalent Assurance

• 1 The competent authorities shall have the authority to require an applicant to provide a security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Such security or equivalent assurance shall not unreasonably deter recourse to these procedures.

• 2 Where pursuant to an application under this Section the release of goods involving industrial designs, patents, layout-designs or undisclosed information into free circulation has been suspended by customs authorities on the basis of a decision other than by a judicial or other independent authority, and the period provided for in Article 55 has expired without the granting of provisional relief by the duly empowered authority, and provided that all other conditions for importation have been complied with, the owner, importer, or consignee of such goods shall be entitled to their release on the posting of a security in an amount sufficient to protect the right holder for any infringement. Payment of such security shall not prejudice any other remedy available to the right holder, it being understood that the security shall be released if the right holder fails to pursue the right of action within a reasonable period of time.

Article 54. Notice of Suspension

The importer and the applicant shall be promptly notified of the suspension of the release of goods according to Article 51.

Article 55. Duration of Suspension

If, within a period not exceeding 10 working days after the applicant has been served notice of the suspension, the customs authorities have not been informed that proceedings leading to a decision on the merits of the case have been initiated by a party other than the defendant, or that the duly empowered authority has taken provisional measures prolonging the suspension of the release of the goods, the goods shall be released, provided that all other conditions for importation or exportation have been complied with; in appropriate cases, this time-limit may be extended by another 10 working days. If proceedings leading to a decision on the merits of the case have been initiated, a review, including a right to be heard, shall take place upon request of the defendant with a view to deciding, within a reasonable period, whether these measures shall be modified, revoked or confirmed. Notwithstanding the above, where the suspension of the release of goods is carried out or continued in accordance with a provisional judicial measure, the provisions of paragraph 6 of Article 50 shall apply.

Article 56. Indemnification of the Importer and of the Owner of the Goods

Relevant authorities shall have the authority to order the applicant to pay the importer, the consignee and the owner of the goods appropriate compensation for any injury caused to them through the wrongful detention of goods or through the detention of goods released pursuant to Article 55.

Article 57. Right of Inspection and Information

Without prejudice to the protection of confidential information, Members shall provide the competent authorities the authority to give the right holder sufficient opportunity to have any goods detained by the customs authorities inspected in order to substantiate the right holder's claims. The competent authorities shall also have authority to give the importer an equivalent opportunity to have any such goods inspected. Where a positive determination has been made on the merits of a case, Members may provide the competent authorities the authority to inform the right holder of the names and addresses of the consignor, the importer and the consignee and of the quantity of the goods in question.

Article 58. Ex Officio Action

Where Members require competent authorities to act upon their own initiative and to suspend the release of goods in respect of which they have acquired prima facie evidence that an intellectual property right is being infringed:

• a) the competent authorities may at any time seek from the right holder any information that may assist them to exercise these powers;

• b) the importer and the right holder shall be promptly notified of the suspension. Where the importer has lodged an appeal against the suspension with the competent authorities, the suspension shall be subject to the conditions, mutatis mutandis, set out at Article 55;

• c) Members shall only exempt both public authorities and officials from liability to appropriate remedial measures where actions are taken or intended in good faith.

Article 59. Remedies

Without prejudice to other rights of action open to the right holder and subject to the right of the defendant to seek review by a judicial authority, competent authorities shall have the authority to order the destruction or disposal of infringing goods in accordance with the principles set out in Article 46. In regard to counterfeit trademark goods, the authorities shall not allow the re-exportation of the infringing goods in an unaltered state or subject them to a different customs procedure, other than in exceptional circumstances.

Article 60. De Minimis Imports

Members may exclude from the application of the above provisions small quantities of goods of a non-commercial nature contained in travellers' personal luggage or sent in small consignments.

SECTION 5. CRIMINAL PROCEDURES

Article 61

Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence. Members may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular where they are committed wilfully and on a commercial scale.

PART IV. ACQUISITION AND MAINTENANCE OF INTELLECTUAL PROPERTY RIGHTS AND RELATED INTER-PARTES PROCEDURES

Article 62

• 1 Members may require, as a condition of the acquisition or maintenance of the intellectual property rights provided for under Sections 2 through 6 of Part II, compliance with reasonable procedures and formalities. Such procedures and formalities shall be consistent with the provisions of this Agreement.

• 2 Where the acquisition of an intellectual property right is subject to the right being granted or registered, Members shall ensure that the procedures for grant or registration, subject to compliance with the substantive conditions for acquisition of the right, permit the granting or registration of the right within a reasonable period of time so as to avoid unwarranted curtailment of the period of protection.

• 3 Article 4 of the Paris Convention (1967) shall apply mutatis mutandis to service marks.

• 4 Procedures concerning the acquisition or maintenance of intellectual property rights and, where a Member's law provides for such procedures, administrative revocation and inter partes procedures such as opposition, revocation and cancellation, shall be governed by the general principles set out in paragraphs 2 and 3 of Article 41.

• 5 Final administrative decisions in any of the procedures referred to under paragraph 4 shall be subject to review by a judicial or quasi-judicial authority. However, there shall be no obligation to provide an opportunity for such review of decisions in cases of unsuccessful opposition or administrative revocation, provided that the grounds for such procedures can be the subject of invalidation procedures.

PART V. DISPUTE PREVENTION AND SETTLEMENT

Article 63. Transparency

• 1 Laws and regulations, and final judicial decisions and administrative rulings of general application, made effective by a Member pertaining to the subject matter of this Agreement (the availability, scope, acquisition, enforcement and prevention of the abuse of intellectual property rights) shall be published, or where such publication is not practicable made publicly available, in a national language, in such a manner as to enable governments and right holders to become acquainted with them. Agreements concerning the subject matter of this Agreement which are in force between the government or a governmental agency of a Member and the government or a governmental agency of another Member shall also be published.

• 2 Members shall notify the laws and regulations referred to in paragraph 1 to the Council for TRIPS in order to assist that Council in its review of the operation of this Agreement. The Council shall attempt to minimize the burden on Members in carrying out this obligation and may decide to waive the obligation to notify such laws and regulations directly to the Council if consultations with WIPO on the establishment of a common register containing these laws and regulations are successful. The Council shall also consider in this connection any action required regarding notifications pursuant to the obligations under this Agreement stemming from the provisions of Article 6ter of the Paris Convention (1967).

• 3 Each Member shall be prepared to supply, in response to a written request from another Member, information of the sort referred to in paragraph 1. A Member, having reason to believe that a specific judicial decision or administrative ruling or bilateral agreement in the area of intel lectual property rights affects its rights under this Agreement, may also request in writing to be given access to or be informed in sufficient detail of such specific judicial decisions or administrative rulings or bilateral agreements.

• 4 Nothing in paragraphs 1, 2 and 3 shall require Members to disclose confidential information which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private.

Article 64. Dispute Settlement

• 1 The provisions of Articles XXII and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding shall apply to consultations and the settlement of disputes under this Agreement except as otherwise specifically provided herein.

• 2 Subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 shall not apply to the settlement of disputes under this Agreement for a period of five years from the date of entry into force of the WTO Agreement.

• 3 During the time period referred to in paragraph 2, the Council for TRIPS shall examine the scope and modalities for complaints of the type provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 made pursuant to this Agreement, and submit its recommendations to the Ministerial Conference for approval. Any decision of the Ministerial Conference to approve such recommendations or to extend the period in paragraph 2 shall be made only by consensus, and approved recommendations shall be effective for all Members without further formal acceptance process.

PART VI. TRANSITIONAL ARRANGEMENTS

Article 65. Transitional Arrangements

• 1 Subject to the provisions of paragraphs 2, 3 and 4, no Member shall be obliged to apply the provisions of this Agreement before the expiry of a general period of one year following the date of entry into force of the WTO Agreement.

• 2 A developing country Member is entitled to delay for a further period of four years the dale of application, as defined in paragraph 1, of the provisions of this Agreement other than Articles 3, 4 and 5.

• 3 Any other Member which is in the process of transformation from a centrally-planned into a market, free-enterprise economy and which is undertaking structural reform of its intellectual property system and facing special problems in the preparation and implementation of intellectual property laws and regulations, may also benefit from a period of delay as foreseen in paragraph 2.

• 4 To the extent that a developing country Member is obliged by this Agreement to extend product patent protection to areas of technology not so protectable in its territory on the general date of application of this Agreement for that Member, as defined in paragraph 2, it may delay the application of the provisions on product patents of Section 5 of Part II to such areas of technology for an additional period of five years.

• 5 A Member availing itself of a transitional period under paragraphs 1, 2, 3 or 4 shall ensure that any changes in its laws, regulations and practice made during that period do not result in a lesser degree of consistency with the provisions of this Agreement.

Article 66. Least-Developed Country Members

• 1 In view of the special needs and requirements of least-developed country Members, their economic, financial and administrative constraints, and their need for flexibility to create a viable technological base, such Members shall not be required to apply the provisions of this Agreement, other than Articles 3, 4 and 5, for a period of 10 years from the date of application as defined under paragraph 1 of Article 65. The Council for TRIPS shall, upon duly motivated request by a least-developed country Member, accord extensions of this period.

• 2 Developed country Members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least-developed country Members in order to enable them to create a sound and viable technological base.

Article 67. Technical Cooperation

In order to facilitate the implementation of this Agreement, developed country Members shall provide, on request and on mutually agreed terms and conditions, technical and financial cooperation in favour of developing and least-developed country Members. Such cooperation shall include assistance in the preparation of laws and regulations on the protection and enforcement of intellectual property rights as well as on the prevention of their abuse, and shall include support regarding the establishment or reinforcement of domestic offices and agencies relevant to these matters, including the training of personnel.

PART VII. INSTITUTIONAL ARRANGEMENTS; FINAL PROVISIONS

Article 68. Council for Trade-Related Aspects of Intellectual Property Rights

The Council for TRIPS shall monitor the operation of this Agreement and, in particular, Members' compliance with their obligations hereunder, and shall afford Members the opportunity of consulting on matters relating to the trade-related aspects of intellectual property rights. It shall carry out such other responsibilities as assigned to it by the Members, and it shall, in particular, provide any assistance requested by them in the context of dispute settlement procedures. In carrying out its functions, the Council for TRIPS may consult with and seek information from any source it deems appropriate. In consultation with WIPO, the Council shall seek to establish, within one year of its first meeting, appropriate arrangements for cooperation with bodies of that Organization.

Article 69. International Cooperation

Members agree to cooperate with each other with a view to eliminating international trade in goods infringing intellectual property rights. For this purpose, they shall establish and notify contact points in their administrations and be ready to exchange information on trade in infringing goods. They shall, in particular, promote the exchange of information and cooperation between customs authorities with regard to trade in counterfeit trademark goods and pirated copyright goods.

Article 70. Protection of Existing Subject Matter

• 1 This Agreement does not give rise to obligations in respect of acts which occurred before the date of application of the Agreement for the Member in question.

• 2 Except as otherwise provided for in this Agreement, this Agreement gives rise to obligations in respect of all subject matter existing at the date of application of this Agreement for the Member in question, and which is protected in that Member on the said date, or which meets or comes subsequently to meet the criteria for protection under the terms of this Agreement. In respect of this paragraph and paragraphs 3 and 4, copyright obligations with respect to existing works shall be solely determined under Article 18 of the Berne Convention (1971), and obligations with respect to the rights of producers of phonograms and performers in existing phonograms shall be determined solely under Article 18 of the Berne Convention (1971) as made applicable under paragraph 6 of Article 14 of this Agreement.

• 3 There shall be no obligation to restore protection to subject matter which on the date of application of this Agreement for the Member in question has fallen into the public domain.

• 4 In respect of any acts in respect of specific objects embodying protected subject matter which become infringing under the terms of legislation in conformity with this Agreement, and which were commenced, or in respect of which a significant investment was made, before the date of acceptance of the WTO Agreement by that Member, any Member may provide for a limitation of the remedies available to the right holder as to the continued performance of such acts after the date of application of this Agreement for that Member. In such cases the Member shall, however, at least provide for the payment of equitable remuneration.

• 5 A Member is not obliged to apply the provisions of Article 11 and of paragraph 4 of Article 14 with respect to originals or copies purchased prior to the date of application of this Agreement for that Member.

• 6 Members shall not be required to apply Article 31, or the requirement in paragraph 1 of Article 27 that patent rights shall be enjoyable without discrimination as to the field of technology, to use without the authorization of the right holder where authorization for such use was granted by the government before the date this Agreement became known.

• 7 In the case of intellectual property rights for which protection is conditional upon registration, applications for protection which are pending on the date of application of this Agreement for the Member in question shall be permitted to be amended to claim any enhanced protection provided under the provisions of this Agreement. Such amendments shall not include new matter.

• 8 Where a Member does not make available as of the date of entry into force of the WTO Agreement patent protection for pharmaceutical and agricultural chemical products commensurate with its obligations under Article 27, that Member shall:

  • a) notwithstanding the provisions of Part VI, provide as from the date of entry into force of the WTO Agreement a means by which applications for patents for such inventions can be filed;

  • b) apply to these applications, as of the date of application of this Agreement, the criteria for patentability as laid down in this Agreement as if those criteria were being applied on the date of filing in that Member or, where priority is available and claimed, the priority date of the application; and

  • c) provide patent protection in accordance with this Agreement as from the grant of the patent and for the remainder of the patent term, counted from the filing date in accordance with Article 33 of this Agreement, for those of these applications that meet the criteria for protection referred to in subparagraph (b)

• 9 Where a product is the subject of a patent application in a Member in accordance with paragraph 8(a), exclusive marketing rights shall be granted, notwithstanding the provisions of Part VI, for a period of five years after obtaining marketing approval in that Member or until a product patent is granted or rejected in that Member, whichever period is shorter, provided that, subsequent to the entry into force of the WTO Agreement, a patent application has been filed and a patent granted for that product in another Member and marketing approval obtained in such other Member.

Article 71. Review and Amendment

• 1 The Council for TRIPS shall review the implementation of this Agreement after the expiration of the transitional period referred to in paragraph 2 of Article 65. The Council shall, having regard to the experience gained in its implementation, review it two years after that date, and at identical intervals thereafter. The Council may also undertake reviews in the light of any relevant new developments which might warrant modification or amendment of this Agreement.

• 2 Amendments merely serving the purpose of adjusting to higher levels of protection of intellectual property rights achieved, and in force, in other multilateral agreements and accepted under those agreements by all Members of the WTO may be referred to the Ministerial Conference for action in accordance with paragraph 6 of Article X of the WTO Agreement on the basis of a consensus proposal from the Council for TRIPS.

Article 72. Reservations

Reservations may not be entered in respect of any of the provisions of this Agreement without the consent of the other Members.

Article 73. Security Exceptions

Nothing in this Agreement shall be construed:

• a) to require a Member to furnish any information the disclosure of which it considers contrary to its essential security interests; or

• b) to prevent a Member from taking any action which it considers necessary for the protection of its essential security interests;

  • i) relating to fissionable materials or the materials from which they are derived;

  • ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;

  • iii) taken in time of war or other emergency in international relations; or

• c) to prevent a Member from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.

Annex to the TRIPS Agreement

• 1. For the purposes of Article 31bis and this Annex:

  • a) “pharmaceutical product” means any patented product, or product manufactured through a patented process, of the pharmaceutical sector needed to address the public health problems as recognized in paragraph 1 of the Declaration on the TRIPS Agreement and Public Health (WT/ MIN(01)/DEC/2). It is understood that active ingredients necessary for its manufacture and diagnostic kits needed for its use would be included180;

  • b) “eligible importing Member” means any least-developed country Member, and any other Member that has made a notification181 to the Council for TRIPS of its intention to use the system set out in Article 31bis and this Annex (“system”) as an importer, it being understood that a Member may notify at any time that it will use the system in whole or in a limited way, for example only in the case of a national emergency or other circumstances of extreme urgency or in cases of public non-commercial use. It is noted that some Members will not use the system as importing Members182 and that some other Members have stated that, if they use the system, it would be in no more than situations of national emergency or other circumstances of extreme urgency;

  • c) “exporting Member” means a Member using the system to produce pharmaceutical products for, and export them to, an eligible importing Member.

• 2. The terms referred to in paragraph 1 of Article 31bis are that:

  • a) the eligible importing Member(s)183 has made a notification184 to the Council for TRIPS, that:

    • (i) specifies the names and expected quantities of the product(s) needed185;

    • (ii) confirms that the eligible importing Member in question, other than a least-developed country Member, has established that it has insufficient or no manufacturing capacities in the pharmaceutical sector for the product(s) in question in one of the ways set out in the Appendix to this Annex; and

    • (iii) confirms that, where a pharmaceutical product is patented in its territory, it has granted or intends to grant a compulsory licence in accordance with Articles 31 and 31bis of this Agreement and the provisions of this Annex186;

  • b) the compulsory licence issued by the exporting Member under the system shall contain the following conditions:

    • (i) only the amount necessary to meet the needs of the eligible importing Member(s) may be manufactured under the licence and the entirety of this production shall he exported to the Member(s) which has notified its needs to the Council for TRIPS;

    • (ii) products produced under the licence shall be clearly identified as being produced under the system through specific labelling or marking. Suppliers should distinguish such products through special packaging and/or special colouring/shaping of the products themselves, provided that such distinction is feasible and does not have a significant impact on price; and

    • (iii) before shipment begins, the licensee shall post on a website187 the following information:

      the quantities being supplied to each destination as referred to in indent (i) above; and

      the distinguishing features of the product(s) referred to in indent (ii) above;

  • c) the exporting Member shall notify188 the Council for TRIPS of the grant of the licence, including the conditions attached to it.189 The information provided shall include the name and address of the licensee, the product(s) for which the licence has been granted, the quantity(ies) for which it bas been granted, the country(ies) to which the product(s) is (are) to be supplied and the duration of the licence. The notification shall also indicate the address of the website referred to in subparagraph b)(iii) above.

• 3. In order to ensure that the products imported under the system are used for the public health purposes underlying their importation, eligible importing Members shall take reasonable measures within their means, proportionate to their administrative capacities and to the risk of trade diversion to prevent re-exportation of the products that have actually been imported into their territories under the system. In the event that an eligible importing Member that is a developing country Member or a least-developed country Member experiences difficulty in implementing this provision, developed country Members shall provide, on request and on mutually agreed terms and conditions, technical and financial cooperation in order to facilitate its implementation.

• 4. Members shall ensure the availability of effective legal means to prevent the importation into, and sale in, their territories of products produced under the system and diverted to their markets inconsistently with its provisions, using the means already required to be available under this Agreement. If any Member considers that such measures are proving insufficient for this purpose, the matter may be reviewed in the Council for TRIPS at the request of that Member.

• 5. With a view to harnessing economies of scale for the purposes of enhancing purchasing power for, and facilitating the local production of, pharmaceutical products, it is recognized that the development of systems providing for the grant of regional patents to be applicable in the Members described in paragraph 3 of Article 31bis should be promoted. To this end, developed country Members undertake to provide technical cooperation in accordance with Article 67 of this Agreement, including in conjunction with other relevant intergovernmental organizations.

• 6. Members recognize the desirability of promoting the transfer of technology and capacity building in the pharmaceutical sector in order to overcome the problem faced by Members with insufficient or no manufacturing capacities in the pharmaceutical sector. To this end, eligible importing Members and exporting Members are encouraged to use the system in a way which would promote this objective. Members undertake to cooperate in paying special attention to the transfer of technology and capacity building in the pharmaceutical sector in the work to be undertaken pursuant to Article 66.2 of this Agreement, paragraph 7 of the Declaration on the TRIPS Agreement and Public Health and any other relevant work of the Council for TRIPS.

• 7. The Council for TRIPS shall review annually the functioning of the system with a view to ensuring its effective operation and shall annually report on its operation to the General Council.

Appendix to the Annex to the TRIPS Agreement

Assessment of Manufacturing: Capacities in the Pharmaceutical Sector

Least-developed country Members are deemed to have insufficient or no manufacturing capacities in the pharmaceutical sector.

For other eligible importing Members insufficient or no manufacturing capacities for the product(s) in question may be established in either of the following ways:

• (i) the Member in question has established that it has no manufacturing capacity in the pharmaceutical sector;

  or

• (ii) where the Member has some manufacturing capacity in this sector, it has examined this capacity and found that, excluding any capacity owned or controlled by the patent owner, it is currently insufficient for the purposes of meeting its needs. When it is established that such capacity has become sufficient to meet the Member’s needs, the system shall no longer apply.

Annex 2. Understanding on rules and procedures governing the settlement of disputes

Members hereby agree as follows:

Article 1. Coverage and Application

• 1 The rules and procedures of this Understanding shall apply to dis putes brought pursuant to the consultation and dispute settlement provisions of the agreements listed in Appendix 1 to this Understanding (referred to in this Understanding as the "covered agreements"). The rules and procedures of this Understanding shall also apply to consultations and the settlement of disputes between Members concerning their rights and obligations under the provisions of the Agreement Establishing the World Trade Organization (referred to in this Understanding as the "WTO Agreement") and of this Understanding taken in isolation or in combination with any other covered agreement.

• 2 The rules and procedures of this Understanding shall apply subject to such special or additional rules and procedures on dispute settlement contained in the covered agreements as are identified in Appendix 2 to this Understanding. To the extent that there is a difference between the rules and procedures of this Understanding and the special or additional rules and procedures set forth in Appendix 2, the special or additional rules and procedures in Appendix 2 shall prevail. In disputes involving rules and procedures under more than one covered agreement, if there is a conflict between special or additional rules and procedures of such agreements under review, and where the parties to the dispute cannot agree on rules and procedures within 20 days of the establishment of the panel, the Chairman of the Dispute Settlement Body provided for in paragraph 1 of Article 2 (referred to in this Understanding as the "DSB"), in consultation with the parties to the dispute, shall determine the rules and procedures to be followed within 10 days after a request by either Member. The Chairman shall be guided by the principle that special or additional rules and procedures should be used where possible, and the rules and procedures set out in this Understanding should be used to the extent necessary to avoid conflict.

Article 2. Administration

• 1 The Dispute Settlement Body is hereby established to administer these rules and procedures and, except as otherwise provided in a covered agreement, the consultation and dispute settlement provisions of the covered agreements. Accordingly, the DSB shall have the authority to establish panels, adopt panel and Appellate Body reports, maintain surveillance of implementation of rulings and recommendations, and authorize suspension of concessions and other obligations under the covered agreements. With respect to disputes arising under a covered agreement which is a Plurilateral Trade Agreement, the term "Member" as used herein shall refer only to those Members that are parties to the relevant Plurilateral Trade Agreement. Where the DSB administers the dispute settlement provisions of a Plurilateral Trade Agreement, only those Members that are parties to that Agreement may participate in decisions or actions taken by the DSB with respect to that dispute.

• 2 The DSB shall inform the relevant WTO Councils and Committees of any developments in disputes related to provisions of the respective covered agreements.

• 3 The DSB shall meet as often as necessary to carry out its functions within the time-frames provided in this Understanding.

• 4 Where the rules and procedures of this Understanding provide for the DSB to take a decision; it shall do so by consensus.190

Article 3. General Provisions

• 1 Members affirm their adherence to the principles for the management of disputes heretofore applied under Articles XXII and XXIII of GATT 1947, and the rules and procedures as further elaborated and modified herein.

• 2 The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.

• 3 The prompt settlement of situations in which a Member considers that any benefits accruing to it directly or indirectly under the covered agreements are being impaired by measures taken by another Member is essential to the effective functioning of the WTO and the maintenance of a proper balance between the rights and obligations of Members.

• 4 Recommendations or rulings made by the DSB shall be aimed at achieving a satisfactory settlement of the matter in accordance with the rights and obligations under this Understanding and under the covered agreements.

• 5 All solutions to matters formally raised under the consultation and dispute settlement provisions of the covered agreements, including arbitration awards, shall be consistent with those agreements and shall not nullify or impair benefits accruing to any Member under those agreements, nor impede the attainment of any objective of those agreements.

• 6 Mutually agreed solutions to matters formally raised under the consultation and dispute settlement provisions of the covered agreements shall be notified to the DSB and the relevant Councils and Committees, where any Member may raise any point relating thereto.

• 7 Before bringing a case, a Member shall exercise its judgement as to whether action under these procedures would be fruitful. The aim of the dispute settlement mechanism is to secure a positive solution to a dispute. A solution mutually acceptable to the parties to a dispute and consistent with the covered agreements is clearly to be preferred. In the absence of a mutually agreed solution, the first objective of the dispute settlement mechanism is usually to secure the withdrawal of the measures concerned if these are found to be inconsistent with the provisions of any of the covered agreements. The provision of compensation should be resorted to only if the immediate withdrawal of the measure is impracticable and as a temporary measure pending the withdrawal of the measure which is inconsistent with a covered agreement. The last resort which this Understanding provides to the Member invoking the dispute settlement procedures is the possibility of suspending the application of concessions or other obligations under the covered agreements on a discriminatory basis vis-à-vis the other Member, subject to authorization by the DSB of such measures.

• 8 In cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment. This means that there is normally a presumption that a breach of the rules has an adverse impact on other Members parties to that covered agreement, and in such cases, it shall be up to the Member against whom the complaint has been brought to rebut the charge.

• 9 The provisions of this Understanding are without prejudice to the rights of Members to seek authoritative interpretation of provisions of a covered agreement through decision-making under the WTO Agreement or a covered agreement which is a Plurilateral Trade Agreement.

• 10 It is understood that requests for conciliation and the use of the dispute settlement procedures should not be intended or considered as contentious acts and that, if a dispute arises, all Members will engage in these procedures in good faith in an effort to resolve the dispute. It is also understood that complaints and counter-complaints in regard to distinct matters should not be linked.

• 11 This Understanding shall be applied only with respect to new requests for consultations under the consultation provisions of the covered agreements made on or after the date of entry into force of the WTO Agreement. With respect to disputes for which the request for consultations was made under GATT 1947 or under any other predecessor agreement to the covered agreements before the date of entry into force of the WTO Agreement, the relevant dispute settlement rules and procedures in effect immediately prior to the date of entry into force of the WTO Agreement shall continue to apply.191

• 12 Notwithstanding paragraph 11, if a complaint based on any of the covered agreements is brought by a developing country Member against a developed country Member, the complaining party shall have the right to invoke, as an alternative to the provisions contained in Articles 4, 5, 6 and 12 of this Understanding, the corresponding provisions of the Decision of 5 April 1966 (BISD 14S/18), except that where the Panel considers that the time-frame provided for in paragraph 7 of that Decision is insufficient to provide its report and with the agreement of the complaining party, that time-frame may be extended. To the extent that there is a difference between the rules and procedures of Articles 4, 5, 6 and 12 and the corresponding rules and procedures of the Decision, the latter shall prevail.

Article 4. Consultations

• 1 Members affirm their resolve to strengthen and improve the effectiveness of the consultation procedures employed by Members.

• 2 Each Member undertakes to accord sympathetic consideration to and afford adequate opportunity for consultation regarding any representations made by another Member concerning measures affecting the operation of any covered agreement taken within the territory of the former.192

• 3 If a request for consultations is made pursuant to a covered agreement, the Member to which the request is made shall, unless otherwise mutually agreed, reply to the request within 10 days after the date of its receipt and shall enter into consultations in good faith within a period of no more than 30 days after the date of receipt of the request, with a view to reaching a mutually satisfactory solution. If the Member does not respond within 10 days after the date of receipt of the request, or does not enter into consultations within a period of no more than 30 days, or a period otherwise mutually agreed, after the date of receipt of the request, then the Member that requested the holding of consultations may proceed directly to request the establishment of a panel.

• 4 All such requests for consultations shall be notified to the DSB and the relevant Councils and Committees by the Member which requests consultations. Any request for consultations shall be submitted in writing and shall give the reasons for the request, including identification of the measures at issue and an indication of the legal basis for the complaint.

• 5 In the course of consultations in accordance with the provisions of a covered agreement, before resorting to further action under this Understanding, Members should attempt to obtain satisfactory adjustment of the matter.

• 6 Consultations shall be confidential, and without prejudice to the rights of any Member in any further proceedings.

• 7 If the consultations fail to settle a dispute within 60 days after the date of receipt of the request for consultations, the complaining party may request the establishment of a panel. The complaining party may request a panel during the 60-day period if the consulting parties jointly consider that consultations have failed to settle the dispute.

• 8 In cases of urgency, including those which concern perishable goods, Members shall enter into consultations within a period of no more than 10 days after the date of receipt of the request. If the consultations have failed to settle the dispute within a period of 20 days after the date of receipt of the request, the complaining party may request the establishment of a panel.

• 9 In cases of urgency, including those which concern perishable goods, the parties to the dispute, panels and the Appellate Body shall make every effort to accelerate the proceedings to the greatest extent possible.

• 10 During consultations Members should give special attention to the particular problems and interests of developing country Members.

• 11 Whenever a Member other than the consulting Members considers that it has a substantial trade interest in consultations being held pursuant to paragraph 1 of Article XXII of GATT 1994, paragraph 1 of Article XXII of GATS, or the corresponding provisions in other covered agreements193

  , such Member may notify the Consulting Members and the DSB, within 10 days after the date of the circulation of the request for consultations under said Article, of its desire to be joined in the consultations. Such Member shall be joined in the consultations, provided that the Member to which the request for consultations was addressed agrees that the claim of substantial interest is well-founded. In that event they shall so inform the DSB. If the request to be joined in the consultations is not accepted, the applicant Member shall be free to request consultations under paragraph 1 of Article XXII or paragraph 1 of Article XXIII of GATT 1994, paragraph 1 of Article XXII or paragraph 1 of Article XXIII of GATS, or the corresponding provisions in other covered agreements.

Article 5. Good Offices, Conciliation and Mediation

• 1 Good offices, conciliation and mediation are procedures that are undertaken voluntarily if the parties to the dispute so agree.

• 2 Proceedings involving good offices, conciliation and mediation, and in particular positions taken by the parties to the dispute during these proceedings, shall be confidential, and without prejudice to the rights of either party in any further proceedings under these procedures.

• 3 Good offices, conciliation or mediation may be requested at any time by any party to a dispute. They may begin at any time and be terminated at any time. Once procedures for good offices, conciliation or mediation are terminated, a complaining party may then proceed with a request for the establishment of a panel.

• 4 Whcn good offices, conciliation or mediation are entered into within 60 days after the date of receipt of a request for consultations, the complaining party must allow a period of 60 days after the date of receipt of the request for consultations before requesting the establishment of a panel. The complaining party may request the establishment of a panel during the 60-day period if the parties to the dispute jointly consider that the good offices, conciliation or mediation process has failed to settle the dispute.

• 5 If the parties to a dispute agree, procedures for good offices, conciliation or mediation may continue while the panel process proceeds.

• 6 The Director-General may, acting in an ex officio capacity, offer good offices, conciliation or mediation with the view to assisting Members to settle a dispute.

Article 6. Establishment of Panels

• 1 If the complaining party so requests, a panel shall be established at the latest at the DSB meeting following that at which the request first appears as an item on the DSB's agenda, unless at that meeting the DSB decides by consensus not to establish a panel.194

• 2 The request for the establishment of a panel shall be made in writing. It shall indicate whether consultations were held, identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly. In case the applicant requests the establishment of a panel with other than standard terms of reference, the written request shall include the proposed text of special terms of reference.

Article 7. Terms of Reference of Panels

• 1 Panels shall have the following terms of reference unless the parties to the dispute agree otherwise within 20 days from the establishment of the panel:

  "To examine, in the light of the relevant provisions in (name of the covered agreement(s) cited by the parties to the dispute), the matter referred to the DSB by (name of party) in document... and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in that/those agreement(s)."

• 2 Panels shall address the relevant provisions in any covered agreement or agreements cited by the parties to the dispute.

• 3 In establishing a panel, the DSB may authorize its Chairman to draw up the terms of reference of the panel in consultation with the parties to the dispute, subject to the provisions of paragraph 1. The terms of reference thus drawn up shall be circulated to all Members. If other than standard terms of reference are agreed upon, any Member may raise any point relating thereto in the DSB.

Article 8. Composition of Panels

• 1 Panels shall be composed of well-qualified governmental and/or non-governmental individuals, including persons who have served on or presented a case to a panel, served as a representative of a Member or of a contracting party to GATT 1947 or as a representative to the Council or Committee of any covered agreement or its predecessor agreement, or in the Secretariat, taught or published on international trade law or policy, or served as a senior trade policy official of a Member.

• 2 Panel members should be selected with a view to ensuring the independence of the members, a sufficiently diverse background and a wide spectrum of experience.

• 3 Citizens of Members whose governments195 are parties to the dispute or third parties as defined in paragraph 2 of Article 10 shall not serve on a panel concerned with that dispute, unless the parties to the dispute agree otherwise.

• 4 To assist in the selection of panelists, the Secretariat shall maintain an indicative list of governmental and non-governmental individuals possessing the qualifications outlined in paragraph 1, from which panelists may be drawn as appropriate. That list shall include the roster of non-governmental panelists established on 30 November 1984 (BISD 31 S/9), and other rosters and indicative lists established under any of the covered agreements, and shall retain the names of persons on those rosters and indicative lists at the time of entry into force of the WTO Agreement. Members may periodically suggest names of governmental and non-governmental individuals for inclusion on the indicative list, providing relevant information on their knowledge of international trade and of the sectors or subject matter of the covered agreements, and those names shall be added to the list upon approval by the DSB. For each of the individuals on the list, the list shall indicate specific areas of experience or expertise of the individuals in the sectors or subject matter of the covered agreements.

• 5 Panels shall be composed of three panelists unless the parties to the dispute agree, within 10 days from the establishment of the panel, to a panel composed of five panelists. Members shall be informed promptly of the composition of the panel.

• 6 The Secretariat shall propose nominations for the panel to the parties to the dispute. The parties to the dispute shall not oppose nominations except for compelling reasons.

• 7 If there is no agreement on the panelists within 20 days after the date of the establishment of a panel, at the request of either party, the Director-General, in consultation with the Chairman of the DSB and the Chairman of the relevant Council or Committee, shall determine the composition of the panel by appointing the panelists whom the Director-General considers most appropriate in accordance with any relevant special or additional rules or procedures of the covered agreement or covered agreements which are at issue in the dispute, after consulting with the parties to the dispute. The Chairman of the DSB shall inform the Members of the composition of the panel thus formed no later than 10 days after the date the Chairman receives such a request.

• 8 Members shall undertake, as a general rule, to permit their officials to serve as panelists.

• 9 Panelists shall serve in their individual capacities and not as government representatives, nor as representatives of any organization. Members shall therefore not give them instructions nor seek to influence them as individuals with regard to matters before a panel.

• 10 When a dispute is between a developing country Member and a developed country Member the panel shall, if the developing country Member so requests, include at least one panelist from a developing country Member.

• 11 Panelists' expenses, including travel and subsistence allowance, shall be met from the WTO budget in accordance with criteria to be adopted by the General Council, based on recommendations of the Committee on Budget, Finance and Administration.

Article 9. Procedures for Multiple Complainants

• 1 Where more than one Member requests the establishment of a panel related to the same matter, a single panel may be established to examine these complaints taking into account the rights of all Members concerned. A single panel should be established to examine such complaints whenever feasible.

• 2 The single panel shall organize its examination and present its findings to the DSB in such a manner that the rights which the parties to the dispute would have enjoyed had separate panels examined the complaints are in no way impaired. If one of the parties to the dispute so requests, the panel shall submit separate reports on the dispute concerned. The written submissions by each of the complainants shall be made available to the other complainants, and each complainant shall have the right to be present when any one of the other complainants presents its views to the panel.

• 3 If more than one panel is established to examine the complaints related to the same matter, to the greatest extent possible the same persons shall serve as panelists on each of the separate panels and the time-table for the panel process in such disputes shall be harmonized.

Article 10. Third Parties

• 1 The interests of the parties to a dispute and those of other Members under a covered agreement at issue in the dispute shall be fully taken into account during the panel process.

• 2 Any Member having a substantial interest in a matter before a panel and having notified its interest to the DSB (referred to in this Understanding as a "third party") shall have an opportunity to be heard by the panel and to make written submissions to the panel. These submissions shall also be given to the parties to the dispute and shall be reflected in the panel report.

• 3 Third parties shall receive the submissions of the parties to the dispute to the first meeting of the panel.

• 4 If a third party considers that a measure already the subject of a panel proceeding nullifies or impairs benefits accruing to it under any covered agreement, that Member may have recourse to normal dispute settlement procedures under this Understanding. Such a dispute shall be referred to the original panel wherever possible.

Article 11. Function of Panels

The function of panels is to assist the DSB in discharging its responsibilities under this Understanding and the covered agreements. Accordingly, a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements. Panels should consult regularly with the parties to the dispute and give them adequate opportunity to develop a mutually satisfactory solution.

Article 12. Panel Procedures

• 1 Panels shall follow the Working Procedures in Appendix 3 unless the panel decides otherwise after consulting the parties to the dispute.

• 2 Panel procedures should provide sufficient flexibility so as to ensure high-quality panel reports, while not unduly delaying the panel process.

• 3 After consulting the parties to the dispute, the panelists shall, as soon as practicable and whenever possible within one week after the composition and terms of reference of the panel have been agreed upon, fix the timetable for the panel process, taking into account the provisions of paragraph 9 of Article 4, if relevant.

• 4 In determining the timetable for the panel process, the panel shall provide sufficient time for the parties to the dispute to prepare their submissions.

• 5 Panels should set precise deadlines for written submissions by the parties and the parties should respect those deadlines.

• 6 Each party to the dispute shall deposit its written submissions with the Secretariat for immediate transmission to the panel and to the other party or parties to the dispute. The complaining party shall submit its first submission in advance of the responding party's first submission unless the panel decides, in fixing the timetable referred to in paragraph 3 and after consultations with the parties to the dispute, that the parties should submit their first submissions simultaneously. When there are sequential arrangements for the deposit of first submissions, the panel shall establish a firm time-period for receipt of the responding party's submission. Any subsequent written submissions shall be submitted simultaneously.

• 7 Where the parties to the dispute have failed to develop a mutually satisfactory solution, the panel shall submit its findings in the form of a written report to the DSB. In such cases, the report of a panel shall set out the findings of fact, the applicability of relevant provisions and the basic rationale behind any findings and recommendations that it makes. Where a settlement of the matter among the parties to the dispute has been found, the report of the panel shall be confined to a brief description of the case and to reporting that a solution has been reached.

• 8 In order to make the procedures more efficient, the period in which the panel shall conduct its examination, from the date that the composition and terms of reference of the panel have been agreed upon until the date the final report is issued to the parties to the dispute, shall, as a general rule, not exceed six months. In cases of urgency, including those relating to perishable goods, the panel shall aim to issue its report to the parties to the dispute within three months.

• 9 When the panel considers that it cannot issue its report within six months, or within three months in cases of urgency, it shall inform the DSB in writing of the reasons for the delay together with an estimate of the period within which it will issue its report. In no case should the period from the establishment of the panel to the circulation of the report to the Members exceed nine months.

• 10 In the context of consultations involving a measure taken by a developing country Member, the parties may agree to extend the periods established in paragraphs 7 and 8 of Article 4. If, after the relevant period has elapsed, the consulting parties cannot agree that the consultations have concluded, the Chairman of the DSB shall decide, after consultation with the parties, whether to extend the relevant period and, if so, for how long. In addition, in examining a complaint against a developing country Member, the panel shall accord sufficient time for the developing country Member to prepare and present its argumentation. The provisions of paragraph 1 of Article 20 and paragraph 4 of Article 21 are not affected by any action pursuant to this paragraph.

• 11 Where one or more of the parties is a developing country Member, the panel's report shall explicitly indicate the form in which account has been taken of relevant provisions on differential and more-favourable treatment for developing country Members that form part of the covered agreements which have been raised by the developing country Member in the course of the dispute settlement procedures.

• 12 The panel may suspend its work at any time at the request of the complaining party for a period not to exceed 12 months. In the event of such a suspension, the time-frames set out in paragraphs 8 and 9 of this Article, paragraph 1 of Article 20, and paragraph 4 of Article 21 shall be extended by the amount of time that the work was suspended. If the work of the panel has been suspended for more than 12 months, the authority for establishment of the panel shall lapse.

Article 13. Right to Seek Information

• 1 Each panel shall have the right to seek information and technical advice from any individual or body which it deems appropriate. However, before a panel seeks such information or advice from any individual or body within the jurisdiction of a Member it shall inform the authorities of that Member. A Member should respond promptly and fully to any request by a panel for such information as the panel considers necessary and appropriate. Confidential information which is provided shall not be revealed without formal authorization from the individual, body, or authorities of the Member providing the information.

• 2 Panels may seek information from any relevant source and may consult experts to obtain their opinion on certain aspects of the matter. With respect to a factual issue concerning a scientific or other technical matter raised by a party to a dispute, a panel may request an advisory report in writing from an expert review group. Rules for the establishment of such a group and its procedures are set forth in Appendix 4.

Article 14. Confidentiality

• 1 Panel deliberations shall be confidential.

• 2 The reports of panels shall be drafted without the presence of the parties to the dispute in the light of the information provided and the statements made.

• 3 Opinions expressed in the panel report by individual panelists shall be anonymous.

Article 15. Interim Review Stage

• 1 Following the consideration of rebuttal submissions and oral arguments, the panel shall issue the descriptive (factual and argument) sections of its draft report to the parties to the dispute. Within a period of time set by the panel, the parties shall submit their comments in writing.

• 2 Following the expiration of the set period of time for receipt of comments from the parties to the dispute, the panel shall issue an interim report to the parties, including both the descriptive sections and the panel's findings and conclusions. Within a period of time set by the panel, a party may submit a written request for the panel to review precise aspects of the interim report prior to circulation of the final report to the Members. At the request of a party, the panel shall hold a further meeting with the parties on the issues identified in the written comments. If no comments are received from any party within the comment period, the interim report shall be considered the final panel report and circulated promptly to the Members.

• 3 The findings of the final panel report shall include a discussion of the arguments made at the interim review stage. The interim review stage shall be conducted within the time-period set out in paragraph 8 of Article 12.

Article 16. Adoption of Panel Reports

• 1 In order to provide sufficient time for the Members to consider panel reports, the reports shall not be considered for adoption by the DSB until 20 days after the date they have been circulated to the Members.

• 2 Members having objections to a panel report shall give written reasons to explain their objections for circulation at least 10 days prior to the DSB meeting at which the panel report will be considered.

• 3 The parties to a dispute shall have the right to participate fully in the consideration of the panel report by the DSB, and their views shall be fully recorded.

• 4 Within 60 days after the date of circulation of a panel report to the Members, the report shall be adopted at a DSB meeting196unless a party to the dispute formally notifies the DSB of its decision to appeal or the DSB decides by consensus not to adopt the report. If a party has notified its decision to appeal, the report by the panel shall not be considered for adoption by the DSB until after completion of the appeal. This adoption procedure is without prejudice to the right of Members to express their views on a panel report.

Article 17. Appellate Review

Standing Appellate Body

• 1 A standing Appellate Body shall be established by the DSB. The Appellate Body shall hear appeals from panel cases. It shall be composed of seven persons, three of whom shall serve on any one case. Per sons serving on the Appellate Body shall serve in rotation. Such rotation shall be determined in the working procedures of the Appellate Body.

• 2 The DSB shall appoint persons to serve on the Appellate Body for a four-year term, and each person may be reappointed once. However, the terms of three of the seven persons appointed immediately after the entry into force of the WTO Agreement shall expire at the end of two years, to be determined by lot. Vacancies shall be filled as they arise. A person appointed to replace a person whose term of office has not expired shall hold office for the remainder of the predecessor's term.

• 3 The Appellate Body shall comprise persons of recognized authority, with demonstrated expertise in law, international trade and the subject matter of the covered agreements generally. They shall be unaffiliated with any government. The Appellate Body membership shall be broadly representative of membership in the WTO. All persons serving on the Appellate Body shall be available at all times and on short notice, and shall stay abreast of dispute settlement activities and other relevant activities of the WTO. They shall not participate in the consideration of any disputes that would create a direct or indirect conflict of interest.

• 4 Only parties to the dispute, not third parties, may appeal a panel report. Third parties which have notified the DSB of a substantial interest in the matter pursuant to paragraph 2 of Article 10 may make written submissions to, and be given an opportunity to be heard by, the Appellate Body.

• 5 As a general rule, the proceedings shall not exceed 60 days from the date a party to the dispute formally notifies its decision to appeal to the date the Appellate Body circulates its report. In fixing its timetable the Appellate Body shall take into account the provisions of paragraph 9 of Article 4, if relevant. When the Appellate Body considers that it cannot provide its report within 60 days, it shall inform the DSB in writing of the reasons for the delay together with an estimate of the period within which it will submit its report. In no case shall the proceedings exceed 90 days.

• 6 An appeal shall be limited to issues of law covered in the panel report and legal interpretations developed by the panel.

• 7 The Appellate Body shall be provided with appropriate administrative and legal support as it requires.

• 8 The expenses of persons serving on the Appellate Body, including travel and subsistence allowance, shall be met from the WTO budget in accordance with criteria to be adopted by the General Council, based on recommendations of the Committee on Budget, Finance and Administration.

Procedures for Appellate Review

• 9 Working procedures shall be drawn up by the Appellate Body in consultation with the Chairman of the DSB and the Director-General, and communicated to the Members for their information.

• 10 The proceedings of the Appellate Body shall be confidential. The reports of the Appellate Body shall be drafted without the presence of the parties to the dispute and in the light of the information provided and the statements made.

• 11 Opinions expressed in the Appellate Body report by individuals serving on the Appellate Body shall be anonymous.

• 12 The Appellate Body shall address each of the issues raised in accordance with paragraph 6 during the appellate proceeding.

• 13 The Appellate Body may uphold, modify or reverse the legal findings and conclusions of the panel.

  Adoption of Appellate Body Reports

• 14 An Appellate Body report shall be adopted by the DSB and unconditionally accepted by the parties to the dispute unless the DSB decides by consensus not to adopt the Appellate Body report within 30 days following its circulation to the Members.197This adoption procedure is without prejudice to the right of Members to express their views on an Appellate Body report

Article 18. Communications with the Panel or Appellate Body

• 1 There shall be no ex parte communications with the panel or Appellate Body concerning matters under consideration by the panel or Appellate Body.

• 2 Written submissions to the panel or the Appellate Body shall be treated as confidential, but shall be made available to the parties to the dispute. Nothing in this Understanding shall preclude a party to a dispute from disclosing statements of its own positions to the public. Members shall treat as confidential information submitted by another Member to the panel or the Appellate Body which that Member has designated as confidential. A party to a dispute shall also, upon request of a Member, provide a non-confidential summary of the information contained in its written submissions that could be disclosed to the public.

Article 19. Panel and Appellate Body Recommendations

• 1 Where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned198bring the measure into conformity with that agreement.199In addition to its recommendations, the panel or Appellate Body may suggest ways in which the Member concerned could implement the recommendations.

• 2 In accordance with paragraph 2 of Article 3, in their findings and recommendations, the panel and Appellate Body cannot add to or diminish the rights and obligations provided in the covered agreements.

Article 20. Time-frame for DSB Decisions

Unless otherwise agreed to by the parties to the dispute, the period from the date of establishment of the panel by the DSB until the date the DSB considers the panel or appellate report for adoption shall as a general rule not exceed nine months where the panel report is not appealed or 12 months where the report is appealed. Where either the panel or the Appellate Body has acted, pursuant to paragraph 9 of Article 12 or paragraph 5 of Article 17, to extend the time for providing its report, the additional time taken shall be added to the above periods.

Article 21. Surveillance of Implementation of Recommendations and Rulings

• 1 Prompt compliance with recommendations or rulings of the DSB is essential in order to ensure effective resolution of disputes to the benefit of all Members.

• 2 Particular attention should be paid to matters affecting the interests of developing country Members with respect to measures which have been subject to dispute settlement.

• 3 At a DSB meeting held within 30 days200after the date of adoption of the panel or Appellate Body report, the Member concerned shall inform the DSB of its intentions in respect of implementation of the recommendations and rulings of the DSB. If it is impracticable to comply immediately with the recommendations and rulings, the Member concerned shall have a reasonable period of time in which to do so. The reasonable period of time shall be:

  • a) the period of time proposed by the Member concerned, provided that such period is approved by the DSB; or, in the absence of such approval,

  • b) a period of time mutually agreed by the parties to the dispute within 45 days after the date of adoption of the recommendations and rulings; or, in the absence of such agreement,

  • c) a period of time determined through binding arbitration within 90 days after the date of adoption of the recommendations and rulings.201In such arbitration, a guideline for the arbitrator202should be that the reasonable period of time to implement panel or Appellate Body recommendations should not exceed 15 months from the date of adoption of a panel or Appellate Body report. However, that time may be shorter or longer, depending upon the particular circumstances.

• 4 Except where the panel or the Appellate Body has extended, pursuant to paragraph 9 of Article 12 or paragraph 5 of Article 17, the time of providing its report, the period from the date of establishment of the panel by the DSB until the date of determination of the reasonable period of time shall not exceed 15 months unless the parties to the dispute agree otherwise. Where either the panel or the Appellate Body has acted to extend the time of providing its report, the additional time taken shall be added to the 15-month period; provided that unless the parties to the dispute agree that there are exceptional circumstances, the total time shall not exceed 18 months.

• 5 Where there is disagreement as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings such dispute shall be decided through recourse to these dispute settlement procedures, including wherever possible resort to the original panel. The panel shall circulate its report within 90 days after the date of referral of the matter to it. When the panel considers that it cannot provide its report within this time frame, it shall inform the DSB in writing of the reasons for the delay together with an estimate of the period within which it will submit its report.

• 6 The DSB shall keep under surveillance the implementation of adopted recommendations or rulings. The issue of implementation of the recommendations or rulings may be raised at the DSB by any Member at any time following their adoption. Unless the DSB decides otherwise, the issue of implementation of the recommendations or rulings shall be placed on the agenda of the DSB meeting after six months following the date of establishment of the reasonable period of time pursuant to paragraph 3 and shall remain on the DSB's agenda until the issue is resolved. At least 10 days prior to each such DSB meeting, the Member concerned shall provide the DSB with a status report in writing of its progress in the implementation of the recommendations or rulings.

• 7 If the matter is one which has been raised by a developing country Member, the DSB shall consider what further action it might take which would be appropriate to the circumstances.

• 8 If the case is one brought by a developing country Member, in considering what appropriate action might be taken, the DSB shall take into account not only the trade coverage of measures complained of, but also their impact on the economy of developing country Members concerned.

Article 22. Compensation and the Suspension of Concessions

• 1 Compensation and the suspension of concessions or other obligations are temporary measures available in the event that the recommendations and rulings are not implemented within a reasonable period of time. However, neither compensation nor the suspension of concessions or other obligations is preferred to full implementation of a recommendation to bring a measure into conformity with the covered agreements. Compensation is voluntary and, if granted, shall be consistent with the covered agreements.

• 2 If the Member concerned fails to bring the measure found to be inconsistent with a covered agreement into compliance therewith or otherwise comply with the recommendations and rulings within the reasonable period of time determined pursuant to paragraph 3 of Article 21, such Member shall, if so requested, and no later than the expiry of the reasonable period of time, enter into negotiations with any party having invoked the dispute settlement procedures, with a view to developing mutually acceptable compensation. If no satisfactory compensation has been agreed within 20 days after the date of expiry of the reasonable period of time, any party having invoked the dispute settlement procedures may request authorization from the DSB to suspend the application to the Member concerned of concessions or other obligations under the covered agreements.

• 3 In considering what concessions or other obligations to suspend, the complaining party shall apply the following principles and procedures:

  • a) the general principle is that the complaining party should first seek to suspend concessions or other obligations with respect to the same sector(s) as that in which the panel or Appellate Body has found a violation or other nullification or impairment;

  • b) if that party considers that it is not practicable or effective to suspend concessions or other obligations with respect to the same sector(s), it may seek to suspend concessions or other obligations in other sectors under the same agreement;

  • c) if that party considers that it is not practicable or effective to suspend concessions or other obligations with respect to other sectors under the same agreement, and that the circumstances are serious enough, it may seek to suspend concessions or other obligations under another covered agreement;

  • d) in applying the above principles, that party shall take into account:

    • i) the trade in the sector or under the agreement under which the panel or Appellate Body has found a violation or other nullification or impairment, and the importance of such trade to that party;

    • ii) the broader economic elements related to the nullification or impairment and the broader economic consequences of the suspension of concessions or other obligations;

  • e) if that party decides to request authorization to suspend concessions or other obligations pursuant to subparagraphs b) or c), it shall state the reasons therefor in its request. At the same time as the request is forwarded to the DSB, it also shall be forwarded to the relevant Councils and also, in the case of a request pursuant to subparagraph b), the relevant sectoral bodies;

  • f) for purposes of this paragraph, "sector" means:

    • i) with respect to goods, all goods;

    • ii) with respect to services, a principal sector as identified in the current "Services Sectoral Classification List" which identifies such sectors;203

    • iii) with respect to trade-related intellectual property rights, each of the categories of intellectual property rights covered in Section 1, or Section 2, or Section 3, or Section 4, or Section 5, or Section 6, or Section 7 of Part II, or the obligations under Part III, or Part IV of the Agreement on TRIPS;

  • g) for purposes of this paragraph, "agreement" means:

    • i) with respect to goods, the agreements listed in Annex 1A of the WTO Agreement, taken as a whole as well as the Plurilateral Trade Agreements in so far as the relevant parties to the dispute are parties to these agreements;

    • ii) with respect to services, the GATS;

    • iii) with respect to intellectual property rights, the Agreement on TRIPS.

• 4 The level of the suspension of concessions or other obligations authorized by the DSB shall be equivalent to the level of the nullification or impairment.

• 5 The DSB shall not authorize suspension of concessions or other obligations if a covered agreement prohibits such suspension.

• 6 When the situation described in paragraph 2 occurs, the DSB, upon request, shall grant authorization to suspend concessions or other obligations within 30 days of the expiry of the reasonable period of time unless the DSB decides by consensus to reject the request. However, if the Member concerned objects to the level of suspension proposed, or claims that the principles and procedures set forth in paragraph 3 have not been followed where a complaining party has requested authorization to suspend concessions or other obligations pursuant to paragraph 3(b) or (c), the matter shall be referred to arbitration. Such arbitration shall be carried out by the original panel, if members are available, or by an arbitrator204appointed by the Director-General and shall be completed within 60 days after the date of expiry of the reasonable period of time. Concessions or other obligations shall not be suspended during the course of the arbitration.

• 7 The arbitrator205acting pursuant to paragraph 6 shall not examine the nature of the concessions or other obligations to be suspended but shall determine whether the level of such suspension is equivalent to the level of nullification or impairment. The arbitrator may also determine if the proposed suspension of concessions or other obligations is allowed under the covered agreement. However, if the matter referred to arbitration includes a claim that the principles and procedures set forth in paragraph 3 have not been followed, the arbitrator shall examine that claim. In the event the arbitrator determines that those principles and procedures have not been followed, the complaining party shall apply them consistent with paragraph 3. The parties shall accept the arbitrator's decision as final and the parties concerned shall not seek a second arbitration. The DSB shall be informed promptly of the decision of the arbitrator and shall upon request, grant authorization to suspend concessions or other obligations where the request is consistent with the decision of the arbitrator, unless the DSB decides by consensus to reject the request.

• 8 The suspension of concessions or other obligations shall be temporary and shall only be applied until such time as the measure found to be inconsistent with a covered agreement has been removed, or the Member that must implement recommendations or rulings provides a solution to the nullification or impairment of benefits, or a mutually satisfactory solution is reached. In accordance with paragraph 6 of Article 21, the DSB shall continue to keep under surveillance the implementation of adopted recommendations or rulings, including those cases where compensation has been provided or concessions or other obligations have been suspended but the recommendations to bring a measure into conformity with the covered agreements have not been implemented.

• 9 The dispute settlement provisions of the covered agreements may be invoked in respect of measures affecting their observance taken by regional or local governments or authorities within the territory of a Member. When the DSB has ruled that a provision of a covered agreement has not been observed, the responsible Member shall take such reasonable measures as may be available to it to ensure its observance. The provisions of the covered agreements and this Understanding relating to compensation and suspension of concessions or other obligations apply in cases where it has not been possible to secure such observance.206

Article 23. Strengthening of the Multilateral System

• 1 When Members seek the redress of a violation of obligations or other nullification or impairment of benefits under the covered agreements or an impediment to the attainment of any objective of the covered agreements, they shall have recourse to, and abide by, the rules and procedures of this Understanding.

• 2 In such cases, Members shall:

  • (a) not make a determination to the effect that a violation has occurred, that benefits have been nullified or impaired or that the attainment of any objective of the covered agreements has been impeded, except through recourse to dispute settlement in accordance with the rules and procedures of this Understanding, and shall make any such determination consistent with the findings contained in the panel or Appellate Body report adopted by the DSB or an arbitration award rendered under this Understanding;

  • b) follow the procedures set forth in Article 21 to determine the reasonable period of time for the Member concerned to implement the recommendations and rulings; and

  • c) follow the procedures set forth in Article 22 to determine the level of suspension of concessions or other obligations and obtain DSB authorization in accordance with those procedures before suspending concessions or other obligations under the covered agreements in response to the failure of the Member concerned to implement the recommendations and rulings within that reasonable period of time.

Article 24. Special Procedures Involving Least-Developed Country Members

• 1 At all stages of the determination of the causes of a dispute and of dispute settlement procedures involving a least-developed country Member, particular consideration shall be given to the special situation of least-developed country Members. In this regard, Members shall exercise due restraint in raising matters under these procedures involving a least-developed country Member. If nullification or impairment is found to result from a measure taken by a least-developed country Member, complaining parties shall exercise due restraint in asking for compensation or seeking authorization to suspend the application of concessions or other obligations pursuant to these procedures.

• 2 In dispute settlement cases involving a least-developed country Member, where a satisfactory solution has not been found in the course of consultations the Director-General or the Chairman of the DSB shall, upon request by a least-developed country Member offer their good offices, conciliation and mediation with a view to assisting the parties to settle the dispute, before a request for a panel is made. The Director-General or the Chairman of the DSB, in providing the above assistance, may consult any source which either deems appropriate.

Article 25. Arbitration

• 1 Expeditious arbitration within the WTO as an alternative means of dispute settlement can facilitate the solution of certain disputes that concern issues that are clearly defined by both parties.

• 2 Except as otherwise provided in this Understanding, resort to arbitration shall be subject to mutual agreement of the parties which shall agree on the procedures to be followed. Agreements to resort to arbitration shall be notified to all Members sufficiently in advance of the actual commencement of the arbitration process.

• 3 Other Members may become party to an arbitration proceeding only upon the agreement of the parties which have agreed to have recourse to arbitration. The parties to the proceeding shall agree to abide by the arbitration award. Arbitration awards shall be notified to the DSB and the Council or Committee of any relevant agreement where any Member may raise any point relating thereto.

• 4 Articles 21 and 22 of this Understanding shall apply mutatis mutandis to arbitration awards.

Article 26

• 1

  Non-Violation Complaints of the Type Described in Paragraph 1b) of Article XXIII of GATT 1994

  Where the provisions of paragraph 1b) of Article XXIII of GATT 1994 are applicable to a covered agreement, a panel or the Appellate Body may only make rulings and recommendations where a party to the dispute considers that any benefit accruing to it directly or indirectly under the relevant covered agreement is being nullified or impaired or the attainment of any objective of that Agreement is being impeded as a result of the application by a Member of any measure, whether or not it conflicts with the provisions of that Agreement. Where and to the extent that such party considers and a panel or the Appellate Body determines that a case concerns a measure that does not conflict with the provisions of a covered agreement to which the provisions of paragraph 1b) of Article XXIII of GATT 1994 are applicable, the procedures in this Understanding shall apply, subject to the following:

  • a) the complaining party shall present a detailed justification in support of any complaint relating to a measure which does not conflict with the relevant covered agreement;

  • b) where a measure has been found to nullify or impair benefits under, or impede the attainment of objectives, of the relevant covered agreement without violation thereof, there is no obligation to withdraw the measure. However, in such cases, the panel or the Appellate Body shall recommend that the Member concerned make a mutually satisfactory adjustment;

  • c) notwithstanding the provisions of Article 21, the arbitration provided for in paragraph 3 of Article 21, upon request of either party, may include a determination of the level of benefits which have been nullified or impaired, and may also suggest ways and means of reaching a mutually satisfactory adjustment; such suggestions shall not be binding upon the parties to the dispute;

  • d) notwithstanding the provisions of paragraph 1 of Article 22, compensation may be part of a mutually satisfactory adjustment as final settlement of the dispute.

• 2

  Complaints of the Type Described in Paragraph 1c) of Article XXIII of GATT 1994

  Where the provisions of paragraph 1c) of Article XXIII ofGATT 1994 are applicable to a covered agreement, a panel may only make rulings and recommendations where a party considers that any benefit accruing to it directly or indirectly under the relevant covered agreement is being nullified or impaired or the attainment of any objective of that Agreement is being impeded as a result of the existence of any situation other than those to which the provisions of paragraphs 1a) and 1b) of Article XXIII of GATT 1994 are applicable. Where and to the extent that such party considers and a panel determines that the matter is covered by this paragraph, the procedures of this Understanding shall apply only up to and including the point in the proceedings where the panel report has been circulated to the Members. The dispute settlement rules and procedures contained in the Decision of 12 April 1989 (BISD 36S/61-67) shall apply to consideration for adoption, and surveillance and implementation of recommendations and rulings. The following shall also apply:

  • a) the complaining party shall present a detailed justification in support of any argument made with respect to issues covered under this paragraph;

  • b) in cases involving matters covered by this paragraph, if a panel finds that cases also involve dispute settlement matters other than those covered by this paragraph, the panel shall circulate a report to the DSB addressing any such matters and a separate report on matters falling under this paragraph.

Article 27. Responsibilities of the Secretariat

• 1 The Secretariat shall have the responsibility of assisting panels, especially on the legal, historical and procedural aspects of the matters dealt with, and of providing secretarial and technical support.

• 2 While the Secretariat assists Members in respect of dispute settlement at their request, there may also be a need to provide additional legal advice and assistance in respect of dispute settlement to developing country Members. To this end, the Secretariat shall make available a qualified legal expert from the WTO technical cooperation services to any developing country Member which so requests. This expert shall assist the developing country Member in a manner ensuring the continued impartiality of the Secretariat.

• 3 The Secretariat shall conduct special training courses for interested Members concerning these dispute settlement procedures and practices so as to enable Members' experts to be better informed in this regard.

APPENDIX 1. AGREEMENTS COVERED BY THE UNDERSTANDING

• A) Agreement Establishing the World Trade Organization

• B) Multilateral Trade Agreements

  Annex 1A: Multilateral Agreements on Trade in Goods

  Annex IB: General Agreement on Trade in Services

  Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights

  Annex 2: Understanding on Rules and Procedures Governing the Settlement of Disputes

• C) Plurilateral Trade Agreements

  Annex 4: Agreement on Trade in Civil Aircraft

  Agreement on Government Procurement

  International Dairy Agreement

  International Bovine Meat Agreement

  The applicability of this Understanding to the Plurilateral Trade Agreements shall be subject to the adoption of a decision by the parties to each agreement setting out the terms for the application of the Understanding to the individual agreement, including any special or additional rules or procedures for inclusion in Appendix 2, as notified to the DSB.

APPENDIX 2. SPECIAL OR ADDITIONAL RULES AND PROCEDURES CONTAINED IN THE COVERED AGREEMENTS

Agreement	Rules and Procedures
Agreement on the Application of Sanitary and Phytosanitary Measures	11.2
Agreement on Textiles and Clothing	2.14, 2.21, 4.4, 5.2, 5.4, 5.6, 6.9, 6.10, 6.11, 8.1 through 8.12
Agreement on Technical Barriers to Trade	14.2 through 14.4, Annex 2
Agreement on Implementation of Article VI of GATT 1994	17.4 through 17.7
Agreement on Implementation of Article VII of GATT 1994	19.3 through 19.5, Annex IΙ.2f), 3, 9, 21
Agreement on Subsidies and Countervailing Measures	4.2 through 4.12, 6.6, 7.2 through 7.10, 8.5, footnote 35, 24.4, 27.7, Annex V
General Agreement on Trade in Services	XXII:3, XXIII:3
Annex on Financial Services	4
Annex on Air Transport Services	4
Decision on Certain Dispute Settlement Procedures for the GATS	1 through 5

The list of rules and procedures in this Appendix includes provisions where only a part of the provision may be relevant in this context.

Any special or additional rules or procedures in the Plurilateral Trade Agreements as determined by the competent bodies of each agreement and as notified to the DSB.

APPENDIX 3. WORKING PROCEDURES

• 1. In its proceedings the panel shall follow the relevant provisions of this Understanding. In addition, the following working procedures shall apply.

• 2. The panel shall meet in closed session. The parties to the dispute, and interested parties, shall be present at the meetings only when invited by the panel to appear before it.

• 3. The deliberations of the panel and the documents submitted to it shall be kept confidential. Nothing in this Understanding shall preclude a party to a dispute from disclosing statements of its own positions to the public. Members shall treat as confidential information submitted by another Member to the panel which that Member has designated as confidential. Where a party to a dispute submits a confidential version of its written submissions to the panel, it shall also, upon request of a Member, provide a non-confidential summary of the information contained in its submissions that could be disclosed to the public.

• 4. Before the first substantive meeting of the panel with the parties, the parties to the dispute shall transmit to the panel written submissions in which they present the facts of the case and their arguments.

• 5. At its first substantive meeting with the parties, the panel shall ask the party which has brought the complaint to present its case. Subsequently, and still at the same meeting, the party against which the complaint has been brought shall be asked to present its point of view.

• 6. All third parties which have notified their interest in the dispute to the DSB shall be invited in writing to present their views during a session of the first substantive meeting of the panel set aside for that purpose. All such third parties may be present during the entirety of this session.

• 7. Formal rebuttals shall be made at a second substantive meeting of the panel. The party complained against shall have the right to take the floor first to be followed by the complaining party. The parties shall submit, prior to that meeting, written rebuttals to the panel.

• 8. The panel may at any time put questions to the parties and ask them for explanations either in the course of a meeting with the parties or in writing.

• 9. The parties to the dispute and any third party invited to present its views in accordance with Article 10 shall make available to the panel a written version of their oral statements.

• 10. In the interest of full transparency, the presentations, rebuttals and statements referred to in paragraphs 5 to 9 shall be made in the presence of the parties. Moreover, each party's written submissions, including any comments on the descriptive part of the report and responses to questions put by the panel, shall be made available to the other party or parties.

• 11. Any additional procedures specific to the panel.

• 12. Proposed timetable for panel work:

  a)	Receipt of first written submis sions of the parties:
  	(1) complaining Party:	3-6 weeks
  	(2) Party complained against:	2-3 weeks
  b)	Date, time and place of first substantive meeting with the parties; third party session:	1 -2 weeks
  c)	Receipt of written rebuttals of the parties:	2-3 weeks
  d)	Date, time and place of second substantive meeting with the parties:	1 -2 weeks
  e)	Issuance of descriptive part of the report to the parties:	2-4 weeks
  f)	Receipt of comments by the parties on the descriptive part of the report:	2 weeks
  g)	Issuance of the interim report, including the findings and conclusions, to the parties:	2-4 weeks
  h)	Deadline for party to request review of part(s) of report:	1 week
  i)	Period of review by panel, including possible additional meeting with parties:	2 weeks
  j)	Issuance of final report to parties to dispute:	2 weeks
  k)	Circulation of the final report to the Members:	3 weeks

  The above calendar may be changed in the light of unforeseen developments. Additional meetings with the parties shall be scheduled if required.

APPENDIX 4. EXPERT REVIEW GROUPS

The following rules and procedures shall apply to expert review groups established in accordance with the provisions of paragraph 2 of Article 13.

• 1. Expert review groups are under the panel's authority. Their terms of reference and detailed working procedures shall be decided by the panel, and they shall report to the panel.

• 2. Participation in expert review groups shall be restricted to persons of professional standing and experience in the field in question.

• 3. Citizens of parties to the dispute shall not serve on an expert review group without the joint agreement of the parties to the dispute, except in exceptional circumstances when the panel considers that the need for specialized scientific expertise cannot be fulfilled otherwise. Government officials of parties to the dispute shall not serve on an expert review group. Members of expert review groups shall serve in their individual capacities and not as government representatives, nor as representatives of any organization. Governments or organizations shall therefore not give them instructions with regard to matters before an expert review group.

• 4. Expert review groups may consult and seek information and technical advice from any source they deem appropriate. Before an expert review group seeks such information or advice from a source within the jurisdiction of a Member, it shall inform the government of that Member. Any Member shall respond promptly and fully to any request by an expert review group for such information as the expert review group considers necessary and appropriate.

• 5. The parties to a dispute shall have access to all relevant information provided to an expert review group, unless it is of a confidential nature. Confidential information provided to the expert review group shall not be released without formal authorization from the government, organization or person providing the information. Where such information is requested from the expert review group but release of such information by the expert review group is not authorized, a non-confidential summary of the information will be provided by the government, organization or person supplying the information.

• 6. The expert review group shall submit a draft report to the parties to the dispute with a view to obtaining their comments, and taking them into account, as appropriate, in the final report, which shall also be issued to the parties to the dispute when it is submitted to the panel. The final report of the expert review group shall be advisory only.

ANNEX 3. Trade policy review mechanism

Members hereby agree as follows:

A. Objectives

• i) The purpose of the Trade Policy Review Mechanism ("TPRM") is to contribute to improved adherence by all Members to rules, disciplines and commitments made under the Multilateral Trade Agreements and, where applicable, the Plurilateral Trade Agreements, and hence to the smoother functioning of the multilateral trading system, by achieving greater transparency in, and understanding of, the trade policies and practices of Members. Accordingly, the review mechanism enables the regular collective appreciation and evaluation of the full range of individual Members' trade policies and practices and their impact on the functioning of the multilateral trading system. It is not, however, intended to serve as a basis for the enforcement of specific obligations under the Agreements or for dispute settlement procedures, or to impose new policy commitments on Members.

• ii) The assessment carried out under the review mechanism takes place, to the extent relevant, against the background of the wider economic and developmental needs, policies and objectives of the Member concerned, as well as of its external environment. However, the function of the review mechanism is to examine the impact of a Member's trade policies and practices on the multilateral trading system.

B. Domestic transparency

Members recognize the inherent value of domestic transparency of government decision-making on trade policy matters for both Members' economies and the multilateral trading system, and agree to encourage and promote greater transparency within their own systems, acknowledging that the implementation of domestic transparency must be on a voluntary basis and take account of each Member's legal and political systems.

C. Procedures for review

• i) The Trade Policy Review Body (referred to herein as the "TPRB") is hereby established to carry out trade policy reviews.

• ii) The trade policies and practices of all Members shall be subject to periodic review. The impact of individual Members on the functioning of the multilateral trading system, defined in terms of their share of world trade in a recent representative period, will be the determining factor in deciding on the frequency of reviews. The first four trading entities so identified (counting the European Communities as one) shall be subject to review every two years. The next 16 shall be reviewed every four years. Other Members shall be reviewed every six years, except that a longer period may be fixed for least-developed country Members. It is understood that the review of entities having a common external policy covering more than one Member shall cover all components of policy affecting trade including relevant policies and practices of the individual Members. Exceptionally, in the event of changes in a Member's trade policies or practices that may have a significant impact on its trading partners, the Member concerned may be requested by the TPRB, after consultation, to bring forward its next review.

• iii) Discussions in the meetings of the TPRB shall be governed by the objectives set forth in paragraph A. The focus of these discussions shall be on the Member's trade policies and practices, which are the subject of the assessment under the review mechanism.

• iv) The TPRB shall establish a basic plan for the conduct of the reviews. It may also discuss and take note of update reports from Members. The TPRB shall establish a programme of reviews for each year in consultation with the Members directly concerned. In consultation with the Member or Members under review, the Chairman may choose discussants who, acting in their personal capacity, shall introduce the discussions in the TPRB.

• v) The TPRB shall base its work on the following documentation:

  • a) a full report, referred to in paragraph D, supplied by the Member or Members under review;

  • b) a report, to be drawn up by the Secretariat on its own responsibility, based on the information available to it and that provided by the Member or Members concerned. The Secretariat should seek clarification from the Member or Members concerned of their trade policies and practices.

• vi) The reports by the Member under review and by the Secretariat, together with the minutes of the respective meeting of the TPRB, shall be published promptly after the review.

• vii) These documents will be forwarded to the Ministerial Conference, which shall take note of them.

D. Reporting

In order to achieve the fullest possible degree of transparency, each Member shall report regularly to the TPRB. Full reports shall describe the trade policies and practices pursued by the Member or Members concerned, based on an agreed format to be decided upon by the TPRB. This format shall initially be based on the Outline Format for Country Reports established by the Decision of 19 July 1989 (BISD 36S/406-409), amended as necessary to extend the coverage of reports to all aspects of trade policies covered by the Multilateral Trade Agreements in Annex 1 and, where applicable, the Plurilateral Trade Agreements. This format may be revised by the TPRB in the light of experience. Between reviews, Members shall provide brief reports when there are any significant changes in their trade policies; an annual update of statistical information will be provided according to the agreed format. Particular account shall be taken of difficulties presented to least-developed country Members in compiling their reports. The Secretariat shall make available technical assistance on request to developing country Members, and in particular to the least-developed country Members. Information contained in reports should to the greatest extent possible be coordinated with notifications made under provisions of the Multilateral Trade Agreements and, where applicable, the Plurilateral Trade Agreements.

E. Relationship with the balance-of-payments provisions of GATT 1994 and GATS

Members recognize the need to minimize the burden for governments also subject to full consultations under the balance-of-payments provisions of GATT 1994 or GATS. To this end, the Chairman of the TPRB shall, in consultation with the Member or Members concerned, and with the Chairman of the Committee on Balance-of-Payments Restrictions, devise administrative arrangements that harmonize the normal rhythm of the trade policy reviews with the timetable for balance-of-payments consultations but do not postpone the trade policy review by more than 12 months.

F. Appraisal of the Mechanism

The TPRB shall undertake an appraisal of the operation of the TPRM not more than five years after the entry into force of the Agreement Establishing the WTO. The results of the appraisal will be presented to the Ministerial Conference. It may subsequently undertake appraisals of the TPRM at intervals to be determined by it or as requested by the Ministerial Conference.

G. Overview of Developments in the International Trading Environment

An annual overview of developments in the international trading environment which are having an impact on the multilateral trading system shall also be undertaken by the TPRB. The overview is to be assisted by an annual report by the Director-General setting out major activities of the WTO and highlighting significant policy issues affecting the trading system.

ANNEX 4. PLURILATERAL TRADE AGREEMENTS

Agreement on Trade in Civil Aircraft 207

The Agreement on Trade in Civil Aircraft, done at Geneva on 12 April1979 (BISD) 265/162), as subsequently modified, rectified or amended.

Final act embodying the results of the Uruguay Round of Multilateral Trade Negotiations

• 1. Having met in order to conclude the Uruguay Round of Multilateral Trade Negotiations, representatives of the governments and of the European Communities, members of the Trade Negotiations Committee, agree that the Agreement Establishing the World Trade Organization (referred to in this Final Act as the "WTO Agreement"), the Ministerial Declarations and Decisions, and the Understanding on Commitments in Financial Services, as annexed hereto, embody the results of their negotiations and form an integral part of this Final Act.

• 2. By signing the present Final Act, the representatives agree

  • a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent authorities with a view to seeking approval of the Agreement in accordance with their procedures; and

  • b) to adopt the Ministerial Declarations and Decisions.

• 3. The representatives agree on the desirability of acceptance of the WTO Agreement by all participants in the Uruguay Round of Multilateral Trade Negotiations (hereinafter referred to as "participants") with a view to its entry into force by 1 January 1995, or as early as possible thereafter. Not later than late 1994, Ministers will meet, in accordance with the final paragraph of the Punta del Este Ministerial Declaration, to decide on the international implementation of the results, including the timing of their entry into force.

• 4. The representatives agree that the WTO Agreement shall be open for acceptance as a whole, by signature or otherwise, by all participants pursuant to Article XIV thereof. The acceptance and entry into force of a Plurilateral Trade Agreement included in Annex 4 of the WTO Agreement shall be governed by the provisions of that Plurilateral Trade Agreement.

• 5. Before accepting the WTO Agreement, participants which are not contracting parties to the General Agreement on Tariffs and Trade must first have concluded negotiations for their accession to the General Agreement and become contracting parties thereto. For participants which are not contracting parties to the General Agreement as of the date of the Final Act, the Schedules are not definitive and shall be subsequently completed for the purpose of their accession to the General Agreement and acceptance of the WTO Agreement.

• 6. This Final Act and the texts annexed hereto shall be deposited with the Director-General to the CONTRACTING PARTIES to the General Agreement on Tariffs and Trade who shall promptly furnish to each participant a certified copy thereof.

DONE at Marrakesh this fifteenth day of April one thousand nine hundred and ninety-four, in a single copy, in the English, French and Spanish languages, each text being authentic.

Decision on Measures in Favour of Least-Developed Countries

Ministers,

Recognizing the plight of the least-developed countries and the need to ensure their effective participation in the world trading system, and to take further measures to improve their trading opportunities;

Recognizing the specific needs of the least-developed countries in the area of market access where continued preferential access remains an essential means for improving their trading opportunities;

Reaffirming their commitment to implement fully the provisions concerning the least-developed countries contained in paragraphs 2 (d), 6 and 8 of the Decision of 28 November 1979 on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries;

Having regard to the commitment of the participants as set out in Section B (vii) of Part I of the Punta del Este Ministerial Declaration;

• 1. Decide that, if not already provided for in the instruments negotiated in the course of the Uruguay Round, notwithstanding their acceptance of these instruments, the least-developed countries, and for so long as they remain in that category, while complying with the general rules set out in the aforesaid instruments, will only be required to undertake commitments and concessions to the extent consistent with their individual development, financial and trade needs, or their administrative and institutional capabilities. The least-developed countries shall be given additional time of one year from 15 April 1994 to submit their schedules as required in Article XI of the Agreement Establishing the World Trade Organization.

• 2. Agree that:

  • (i) Expeditious implementation of all special and differential measures taken in favour of least-developed countries including those taken within the context of the Uruguay Round shall be ensured through, inter alia, regular reviews.

  • (ii) To the extent possible, MFN concessions on tariff and non-tariff measures agreed in the Uruguay Round on products of export interest to the least-developed countries may be implemented autonomously, in advance and without staging. Consideration shall be given to further improve GSP and other schemes for products of particular export interest to least-developed countries.

  • (iii) The rules set out in the various agreements and instruments and the transitional provisions in the Uruguay Round should be applied in a flexible and supportive manner for the least-developed countries. To this effect, sympathetic consideration shall be given to specific and motivated concerns raised by the least-developed countries in the appropriate Councils and Committees.

  • (iv) In the application of import relief measures and other measures referred to in paragraph 3 (c) of Article XXXVII of GATT 1947 and the corresponding provision of GATT 1994, special consideration shall be given to the export interests of least-developed countries.

  • (v) Least-developed countries shall be accorded substantially increased technical assistance in the development, strengthening and diversification of their production and export bases including those of services, as well as in trade promotion, to enable them to maximize the benefits from liberalized access to markets.

• 3. Agree to keep under review the specific needs of the least-developed countries and to continue to seek the adoption of positive measures which facilitate the expansion of trading opportunities in favour of these countries.

Declaration on the Contribution of the World Trade Organization to Achieving Greater Coherence in Global Economic Policymaking

1.

Ministers recognize that the globalization of the world economy has led to ever-growing interactions between the economic policies pursued by individual countries, including interactions between the structural, macroeconomic, trade, financial and development aspects of economic policymaking. The task of achieving harmony between these policies falls primarily on governments at the national level, but their coherence internationally is an important and valuable element in increasing the effectiveness of these policies at national level. The Agreements reached in the Uruguay Round show that all the participating governments recognize the contribution that liberal trading policies can make to the healthy growth and development of their own economies and of the world economy as a whole.

2.

Successful cooperation in each area of economic policy contributes to progress in other areas. Greater exchange rate stability, based on more orderly underlying economic and financial conditions, should contribute towards the expansion of trade, sustainable growth and development, and the correction of external imbalances. There is also a need for an adequate and timely flow of concessional and non-concessional financial and real investment resources to developing countries and for further efforts to address debt problems, to help ensure economic growth and development. Trade liberalization forms an increasingly important component in the success of the adjustment programmes that many countries are undertaking, often involving significant transitional social costs. In this connection, Ministers note the role of the World Bank and the IMF in supporting adjustment to trade liberalization, including support to net food-importing developing countries facing short-term costs arising from agricultural trade reforms.

3.

The positive outcome of the Uruguay Round is a major contribution towards more coherent and complementary international economic policies. The results of the Uruguay Round ensure an expansion of market access to the benefit of all countries, as well as a framework of strengthened multilateral disciplines for trade. They also guarantee that trade policy will be conducted in a more transparent manner and with greater awareness of the benefits for domestic competitiveness of an open trading environment. The strengthened multilateral trading system emerging from the Uruguay Round has the capacity to provide an improved forum for liberalization, to contribute to more effective surveillance, and to ensure strict observance of multilaterally agreed rules and disciplines. These improvements mean that trade policy can in the future play a more substantial role in ensuring the coherence of global economic policymaking.

4.

Ministers recognize, however, that difficulties the origins of which lie outside the trade field cannot be redressed through measures taken in the trade field alone. This underscores the importance of efforts to improve other elements of global economic policymaking to complement the effective implementation of the results achieved in the Uruguay Round.

5. Decision on Notification Procedures

The interlinkages between the different aspects of economic policy require that the international institutions with responsibilities in each of these areas follow consistent and mutually supportive policies. The World Trade Organization should therefore pursue and develop cooperation with the international organizations responsible for monetary and financial matters, while respecting the mandate, the confidentiality requirements and the necessary autonomy in decision-making procedures of each institution, and avoiding the imposition on governments of cross-conditionality or additional conditions. Ministers further invite the Director-General of the WTO to review with the Managing Director of the International Monetary Fund and the President of the World Bank, the implications of the WTO's responsibilities for its cooperation with the Bretton Woods institutions, as well as the forms such cooperation might take, with a view to achieving greater coherence in global economic policymaking.

Decision on Notification Procedures

Ministers decide to recommend adoption by the Ministerial Conference of the decision on improvement and review of notification procedures set out below.

Members,

Desiring to improve the operation of notification procedures under the Agreement Establishing the World Trade Organization (hereinafter referred to as the "WTO Agreement"), and thereby to contribute to the transparency of Members' trade policies and to the effectiveness of surveillance arrangements established to that end;

Recalling obligations under the WTO Agreement to publish and notify, including obligations assumed under the terms of specific protocols of accession, waivers, and other agreements entered into by Members;

Agree as follows:

I. General obligation to notify

Members affirm their commitment to obligations under the Multilateral Trade Agreements and, where applicable, the Plurilateral Trade Agreements, regarding publication and notification.

Members recall their undertakings set out in the Understanding Regarding Notification, Consultation, Dispute Settlement and Surveillance adopted on 28 November 1979 (BISD 26S/210). With regard to their undertaking therein to notify, to the maximum extent possible, their adoption of trade measures affecting the operation of GATT 1994, such notification itself being without prejudice to views on the consistency of measures with or their relevance to rights and obligations under the Multilateral Trade Agreements and, where applicable, the Plurilateral Trade Agreements, Members agree to be guided, as appropriate, by the annexed list of measures. Members therefore agree that the introduction or modification of such measures is subject to the notification requirements of the 1979 Understanding.

II. Central registry of notifications

A central registry of notifications shall be established under the responsibility of the Secretariat. While Members will continue to follow existing notification procedures, the Secretariat shall ensure that the central registry records such elements of the information provided on the measure by the Member concerned as its purpose, its trade coverage, and the requirement under which it has been notified. The central registry shall cross-reference its records of notifications by Member and obligation.

The central registry shall inform each Member annually of the regular notification obligations to which that Member will be expected to respond in the course of the following year.

The central registry shall draw the attention of individual Members to regular notification requirements which remain unfulfilled.

Information in the central registry regarding individual notifications shall be made available on request to any Member entitled to receive the notification concerned.

III. Review of notification obligations and procedures

The Council for Trade in Goods will undertake a review of notification obligations and procedures under the Agreements in Annex 1A of the WTO Agreement. The review will be carried out by a working group, membership in which will be open to all Members. The group will be established immediately after the date of entry into force of the WTO Agreement.

The terms of reference of the working group will be:

• - to undertake a thorough review of all existing notification obligations of Members established under the Agreements in Annex 1A of the WTO Agreement, with a view to simplifying, standardizing and consolidating these obligations to the greatest extent practicable, as well as to improving compliance with these obligations, bearing in mind the overall objective of improving the transparency of the trade policies of Members and the effectiveness of surveillance arrangements established to this end, and also bearing in mind the possible need of some developing country Members for assistance in meeting their notification obligations;

• - to make recommendations to the Council for Trade in Goods not later than two years after the entry into force of the WTO Agreement.

Annex INDICATIVE LIST208OF NOTIFIABLE MEASURES

Tariffs (including range and scope of bindings, GSP provisions, rates applied to members of free-trade areas/customs unions, other preferences)

Tariff quotas and surcharges

Quantitative restrictions, including voluntary export restraints and orderly marketing arrangements affecting imports

Other non-tariff measures such as licensing and mixing requirements; variable levies

Customs valuation

Rules of origin

Government procurement

Technical barriers

Safeguard actions

Anti-dumping actions

Countervailing actions

Export taxes

Export subsidies, tax exemptions and concessionary export financing

Free-trade zones, including in-bond manufacturing

Export restrictions, including voluntary export restraints and orderly marketing arrangements

Other government assistance, including subsidies, tax exemptions

Role of state-trading enterprises

Foreign exchange controls related to imports and exports

Government-mandated countertrade

Any other measure covered by the Multilateral Trade Agreements in Annex 1A to the WTO Agreement.

Declaration on the Relationship of the World Trade Organization with the International Monetary Fund

Ministers,

Noting the close relationship between the CONTRACTING PARTIES to the GATT 1947 and the International Monetary Fund, and the provisions of the GATT 1947 governing that relationship, in particular Article XV of the GATT 1947;

Recognizing the desire of participants to base the relationship of the World Trade Organization with the International Monetary Fund, with regard to the areas covered by the Multilateral Trade Agreements in Annex 1A of the WTO Agreement, on the provisions that have governed the relationship of the CONTRACTING PARTIES to the GATT 1947 with the International Monetary Fund;

Hereby reaffirm that, unless otherwise provided for in the Final Act, the relationship of the WTO with the International Monetary Fund, with regard to the areas covered by the Multilateral Trade Agreements in Annex 1A of the WTO Agreement, will be based on the provisions that have governed the relationship of the CONTRACTING PARTIES to the GATT 1947 with the International Monetary Fund.

Decision on Measures Concerning the Possible Negative Effects of the Reform Programme on Least-Developed and Net Food-Importing Developing Countries

• 1. Ministers recognize that the progressive implementation of the results of the Uruguay Round as a whole will generate increasing opportunities for trade expansion and economic growth to the benefit of all participants.

• 2. Ministers recognize that during the reform programme leading to greater liberalization of trade in agriculture least-developed and net food-importing developing countries may experience negative effects in terms of the availability of adequate supplies of basic foodstuffs from external sources on reasonable terms and conditions, including shortterm difficulties in financing normal levels of commercial imports of basic foodstuffs.

• 3. Ministers accordingly agree to establish appropriate mechanisms to ensure that the implementation of the results of the Uruguay Round on trade in agriculture does not adversely affect the availability of food aid at a level which is sufficient to continue to provide assistance in meeting the food needs of developing countries, especially least-developed and net food-importing developing countries. To this end Ministers agree:

  • (i) to review the level of food aid established periodically by the Committee on Food Aid under the Food Aid Convention 1986 and to initiate negotiations in the appropriate forum to establish a level of food aid commitments sufficient to meet the legitimate needs of developing countries during the reform programme;

  • (ii) to adopt guidelines to ensure that an increasing proportion of basic foodstuffs is provided to least-developed and net food importing developing countries in fully grant form and/or on appropriate concessional terms in line with Article IV of the Food Aid Convention 1986;

  • (iii) to give full consideration in the context of their aid programmes to requests for the provision of technical and financial assistance to least-developed and net food-importing developing countries to improve their agricultural productivity and infrastructure.

• 4. Ministers further agree to ensure that any agreement relating to agricultural export credits makes appropriate provision for differential treatment in favour of least-developed and net food-importing developing countries.

• 5. Ministers recognize that as a result of the Uruguay Round certain developing countries may experience short-term difficulties in financing normal levels of commercial imports and that these countries may be eligible to draw on the resources of international financial institutions under existing facilities, or such facilities as may be established, in the context of adjustment programmes, in order to address such financing difficulties. In this regard Ministers take note of paragraph 37 of the report of the Director-General to the CONTRACTING PARTIES to GATT 1947 on his consultations with the Managing Director of the International Monetary Fund and the President of the World Bank (MTN.GNG/NG14/W/35).

• 6. The provisions of this Decision will be subject to regular review by the Ministerial Conference, and the follow-up to this Decision shall be monitored, as appropriate, by the Committee on Agriculture.

Decision on Notification of First Integration under Article 2.6 of the Agreement on Textiles and Clothing

Ministers agree that the participants maintaining restrictions falling under paragraph 1 of Article 2 of the Agreement on Textiles and Clothing shall notify full details of the actions to be taken pursuant to paragraph 6 of Article 2 of that Agreement to the GATT Secretariat not later than 1 October 1994. The GATT Secretariat shall promptly circulate these notifications to the other participants for information. These notifications will be made available to the Textiles Monitoring Body, when established, for the purposes of paragraph 21 of Article 2 of the Agreement on Textiles and Clothing.

Decision on Proposed Understanding on WTO-ISO Standards Information System

Ministers decide to recommend that the Secretariat of the World Trade Organization reach an understanding with the International Organization for Standardization ("ISO") to establish an information system under which:

• 1. ISONET members shall transmit to the ISO/IEC Information Centre in Geneva the notifications referred to in paragraphs C and J of the Code of Good Practice for the Preparation, Adoption and Application of Standards in Annex 3 to the Agreement on Technical Barriers to Trade, in the manner indicated there;

• 2. the following (alpha)numeric classification systems shall be used in the work programmes referred to in paragraph J:

  • a) a standards classification system which would allow standardizing bodies to give for each standard mentioned in the work programme an (alpha)numeric indication of the subject matter;

  • b) a stage code system which would allow standardizing bodies to give for each standard mentioned in the work programme an (alpha)numeric indication of the stage of development of the standard; for this purpose, at least five stages of development should be distinguished: (1) the stage at which the decision to develop a standard has been taken, but technical work has not yet begun; (2) the stage at which technical work has begun, but the period for the submission of comments has not yet started; (3) the stage at which the period for the submission of comments has started, but has not yet been completed; (4) the stage at which the period for the submission of comments has been completed, but the standard has not yet been adopted; and (5) the stage at which the standard has been adopted;

  • c) an identification system covering all international standards which would allow standardizing bodies to give for each standard mentioned in the work programme an (alpha)numeric indication of the international standard(s) used as a basis;

• 3. the ISO/IEC Information Centre shall promptly convey to the Secretariat copies of any notifications referred to in paragraph C of the Code of Good Practice;

• 4. the ISO/IEC Information Centre shall regularly publish the information received in the notifications made to it under paragraphs C and J of the Code of Good Practice; this publication, for which a reasonable fee may be charged, shall be available to ISONET members and through the Secretariat to the Members of the WTO.

Decision on Review of the ISO/IEC Information Centre Publication

Ministers decide that in conformity with paragraph 1 of Article 13 of the Agreement on Technical Barriers to Trade in Annex 1A of the Agreement Establishing the World Trade Organization, the Committee on Technical Barriers to Trade established thereunder shall, without prejudice to provisions on consultation and dispute settlement, at least once a year review the publication provided by the ISO/IEC Information Centre on information received according to the Code of Good Practice for the Preparation, Adoption and Application of Standards in Annex 3 of the Agreement, for the purpose of affording Members opportunity of discussing any matters relating to the operation of that Code.

In order to facilitate this discussion, the Secretariat shall provide a list by Member of all standardizing bodies that have accepted the Code, as well as a list of those standardizing bodies that have accepted or withdrawn from the Code since the previous review.

The Secretariat shall also distribute promptly to the Members copies of the notifications it receives from the ISO/IEC Information Centre.

Decision on Anti-Circumvention

Ministers,

Noting that while the problem of circumvention of anti-dumping duty measures formed part of the negotiations which preceded the Agreement on Implementation of Article VI of GATT 1994, negotiators were unable to agree on specific text,

Mindful of the desirability of the applicability of uniform rules in this area as soon as possible,

Decide to refer this matter to the Committee on Anti-Dumping Practices established under that Agreement for resolution.

Decision on Review of Article 17.6 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994

Ministers decide as follows:

The standard of review in paragraph 6 of Article 17 of the Agreement on Implementation of Article VI of GATT 1994 shall be reviewed after a period of three years with a view to considering the question of whether it is capable of general application.

Declaration on Dispute Settlement Pursuant to the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 or Part V of the Agreement on Subsidies and Countervailing Measures

Ministers recognize, with respect to dispute settlement pursuant to the Agreement on Implementation of Article VI of GATT 1994 or Part V of the Agreement on Subsidies and Countervailing Measures, the need for the consistent resolution of disputes arising from anti-dumping and countervailing duty measures.

Decision Regarding Cases where Customs Administrations Have Reasons to Doubt the Truth or Accuracy of the Declared Value

Ministers invite the Committee on Customs Valuation established under the Agreement on Implementation of Article VII of GATT 1994 to take the following decision:

The Committee on Customs Valuation,

Reaffirming that the transaction value is the primary basis of valuation under the Agreement on Implementation of Article VII of GATT 1994 (hereinafter referred to as the "Agreement");

Recognizing that the customs administration may have to address cases where it has reason to doubt the truth or accuracy of the particulars or of documents produced by traders in support of a declared value;

Emphasizing that in so doing the customs administration should not prejudice the legitimate commercial interests of traders;

Taking into account Article 17 of the Agreement, paragraph 6 of Annex III to the Agreement, and the relevant decisions of the Technical Committee on Customs Valuation;

Decides as follows:

• 1. When a declaration has been presented and where the customs administration has reason to doubt the truth or accuracy of the particulars or of documents produced in support of this declaration, the customs administration may ask the importer to provide further explanation, including documents or other evidence, that the declared value represents the total amount actually paid or payable for the imported goods, adjusted in accordance with the provisions of Article 8. If, after receiving further information, or in the absence of a response, the customs administration still has reasonable doubts about the truth or accuracy of the declared value, it may, bearing in mind the provisions of Article 11, be deemed that the customs value of the imported goods cannot be determined under the provisions of Article 1. Before taking a final decision, the customs administration shall communicate to the importer, in writing if requested, its grounds for doubting the truth or accuracy of the particulars or documents produced and the importer shall be given a reasonable opportunity to respond. When a final decision is made, the customs administration shall communicate to the importer in writing its decision and the grounds therefor.

• 2. It is entirely appropriate in applying the Agreement for one Member to assist another Member on mutually agreed terms.

Decision on Texts Relating to Minimum Values and Imports by Sole Agents, Sole Distributors and Sole Concessionaires

Ministers decide to refer the following texts to the Committee on Customs Valuation established under the Agreement on Implementation of Article VII of GATT 1994, for adoption.

• I. Where a developing country makes a reservation to retain officially established minimum values within the terms of paragraph 2 of Annex III and shows good cause, the Committee shall give the request for the reservation sympathetic consideration.

  Where a reservation is consented to, the terms and conditions referred to in paragraph 2 of Annex III shall take full account of the development, financial and trade needs of the developing country concerned.

• II.

  • 1. A number of developing countries have a concern that problems may exist in the valuation of imports by sole agents, sole distributors and sole concessionaires. Under paragraph 1 of Article 20, developing country Members have a period of delay of up to five years prior to the application of the Agreement. In this context, developing country Members availing themselves of this provision could use the period to conduct appropriate studies and to take such other actions as are necessary to facilitate application.

  • 2. In consideration of this, the Committee recommends that the Customs Co-operation Council assist developing country Members, in accordance with the provisions of Annex II, to formulate and conduct studies in areas identified as being of potential concern, including those relating to importations by sole agents, sole distributors and sole concessionaires.

Decision on Institutional Arrangements for the General Agreement on Trade in Services

Ministers decide to recommend that the Council for Trade in Services at its first meeting adopt the decision on subsidiary bodies set out below.

The Council for Trade in Services,

Acting pursuant to Article XXIV with a view to facilitating the operation and furthering the objectives of the General Agreement on Trade in Services,

Decides as follows:

• 1. Any subsidiary bodies that the Council may establish shall report to the Council annually or more often as necessary. Each such body shall establish its own rules of procedure, and may set up its own subsidiary bodies as appropriate.

• 2. Any sectoral committee shall carry out responsibilities as assigned to it by the Council, and shall afford Members the opportunity to consult on any matters relating to trade in services in the sector concerned and the operation of the sectoral annex to which it may pertain. Such responsibilities shall include:

  • (a) to keep under continuous review and surveillance the application of the Agreement with respect to the sector concerned;

  • (b) to formulate proposals or recommendations for consideration by the Council in connection with any matter relating to trade in the sector concerned;

  • (c) if there is an annex pertaining to the sector, to consider proposals for amendment of that sectoral annex, and to make appropriate recommendations to the Council;

  • (d) to provide a forum for technical discussions, to conduct studies on measures of Members and to conduct examinations of any other technical matters affecting trade in services in the sector concerned;

  • (e) to provide technical assistance to developing country Members and developing countries negotiating accession to the Agreement Establishing the World Trade Organization in respect of the application of obligations or other matters affecting trade in services in the sector concerned; and

  • (f) to cooperate with any other subsidiary bodies established under the General Agreement on Trade in Services or any international organizations active in any sector concerned.

• 3 There is hereby established a Committee on Trade in Financial Services which will have the responsibilities listed in paragraph 2.

Decision on Certain Dispute Settlement Procedures for the General Agreement on Trade in Services

Ministers decide to recommend that the Council for Trade in Services at its first meeting adopt the decision set out below.

The Council for Trade in Services,

Taking into account the specific nature of the obligations and specific commitments of the Agreement, and of trade in services, with respect to dispute settlement under Articles XXII and XXIII,

Decides as follows:

• 1. A roster of panelists shall be established to assist in the selection of panelists.

• 2. To this end, Members may suggest names of individuals possessing the qualifications referred to in paragraph 3 for inclusion on the roster, and shall provide a curriculum vitae of their qualifications including, if applicable, indication of sector-specific expertise.

• 3. Panels shall be composed of well-qualified governmental and/or non-governmental individuals who have experience in issues related to the General Agreement on Trade in Services and/or trade in services, including associated regulatory matters. Panelists shall serve in their individual capacities and not as representatives of any government or organisation.

• 4. Panels for disputes regarding sectoral matters shall have the necessary expertise relevant to the specific services sectors which the dispute concerns.

• 5. The Secretariat shall maintain the roster and shall develop procedures for its administration in consultation with the Chairman of the Council.

Decision on Trade in Services and the Environment

Ministers decide to recommend that the Council for Trade in Services at its first meeting adopt the decision set out below.

The Council for Trade in Services,

Acknowledging that measures necessary to protect the environment may conflict with the provisions of the Agreement; and

Noting that since measures necessary to protect the environment typically have as their objective the protection of human, animal or plant life or health, it is not clear that there is a need to provide for more than is contained in paragraph (b) of Article XIV;

Decides as follows:

• 1. In order to determine whether any modification of Article XIV of the Agreement is required to take account of such measures, to request the Committee on Trade and Environment to examine and report, with recommendations if any, on the relationship between services trade and the environment including the issue of sustainable development. The Committee shall also examine the relevance of inter-governmental agreements on the environment and their relationship to the Agreement.

• 2. The Committee shall report the results of its work to the first biennial meeting of the Ministerial Conference after the entry into force of the Agreement Establishing the World Trade Organization.

Decision on Negotiations on Movement of Natural Persons

Ministers,

Noting the commitments resulting from the Uruguay Round negotiations on the movement of natural persons for the purpose of supplying services;

Mindful of the objectives of the General Agreement on Trade in Services, including the increasing participation of developing countries in trade in services and the expansion of their service exports;

Recognizing the importance of achieving higher levels of commitments on the movement of natural persons, in order to provide for a balance of benefits under the General Agreement on Trade in Services;

Decide as follows:

• 1. Negotiations on further liberalization of movement of natural persons for the purpose of supplying services shall continue beyond the conclusion of the Uruguay Round, with a view to allowing the achievement of higher levels of commitments by participants under the General Agreement on Trade in Services.

• 2. A Negotiating Group on Movement of Natural Persons is established to carry out the negotiations. The group shall establish its own procedures and shall report periodically to the Council on Trade in Services.

• 3. The negotiating group shall hold its first negotiating session no later than 16 May 1994. It shall conclude these negotiations and produce a final report no later than six months after the entry into force of the Agreement Establishing the World Trade Organization.

• 4. Commitments resulting from these negotiations shall be inscribed in Members' Schedules of specific commitments.

Decision on Financial Services

Ministers,

Noting that commitments scheduled by participants on financial services at the conclusion of the Uruguay Round shall enter into force on an MFN basis at the same time as the Agreement Establishing the World Trade Organization (hereinafter referred to as the "WTO Agreement"),

Decide as follows:

• 1. At the conclusion of a period ending no later than six months after the date of entry into force of the WTO Agreement, Members shall be free to improve, modify or withdraw all or part of their commitments in this sector without offering compensation, notwithstanding the provisions of Article XXI of the General Agreement on Trade in Services. At the same time Members shall finalize their positions relating to MFN exemptions in this sector, notwithstanding the provisions of the Annex on Article II Exemptions. From the date of entry into force of the WTO Agreement and until the end of the period referred to above, exemptions listed in the Annex on Article II Exemptions which are conditional upon the level of commitments undertaken by other participants or upon exemptions by other participants will not be applied.

• 2. The Committee on Trade in Financial Services shall monitor the progress of any negotiations undertaken under the terms of this Decision and shall report thereon to the Council for Trade in Services no later than four months after the date of entry into force of the WTO Agreement.

Decision on Negotiations on Maritime Transport Services

Ministers,

Noting that commitments scheduled by participants on maritime transport services at the conclusion of the Uruguay Round shall enter into force on an MFN basis at the same time as the Agreement Establishing the World Trade Organization (hereinafter referred to as the "WTO Agreement"),

Decide as follows:

• 1. Negotiations shall be entered into on a voluntary basis in the sector of maritime transport services within the framework of the General Agreement on Trade in Services. The negotiations shall be comprehensive in scope, aiming at commitments in international shipping, auxiliary services and access to and use of port facilities, leading to the elimination of restrictions within a fixed time scale.

• 2. A Negotiating Group on Maritime Transport Services (hereinafter referred to as the "NGMTS") is established to carry out this mandate. The NGMTS shall report periodically on the progress of these negotiations.

• 3. The negotiations in the NGMTS shall be open to all governments and the European Communities which announce their intention to participate. To date, the following have announced their intention to take part in the negotiations:

  Argentina, Canada, European Communities and their member States, Finland, Hong Kong, Iceland, Indonesia, Korea, Malaysia, Mexico, New Zealand, Norway, Philippines, Poland, Romania, Singapore, Sweden, Switzerland, Thailand, Turkey, United States.

  Further notifications of intention to participate shall be addressed to the depositary of the WTO Agreement.

• 4. The NGMTS shall hold its first negotiating session no later than 16 May 1994. It shall conclude these negotiations and make a final report no later than June 1996. The final report of the NGMTS shall include a date for the implementation of results of these negotiations.

• 5. Until the conclusion of the negotiations Article II and paragraphs 1 and 2 of the Annex on Article II Exemptions are suspended in their application to this sector, and it is not necessary to list MFN exemptions. At the conclusion of the negotiations, Members shall be free to improve, modify or withdraw any commitments made in this sector during the Uruguay Round without offering compensation, notwithstanding the provisions of Article XXI of the Agreement. At the same time Members shall finalize their positions relating to MFN exemptions in this sector, notwithstanding the provisions of the Annex on Article II Exemptions. Should negotiations not succeed, the Council for Trade in Services shall decide whether to continue the negotiations in accordance with this mandate.

• 6. Any commitments resulting from the negotiations, including the date of their entry into force, shall be inscribed in the Schedules annexed to the General Agreement on Trade in Services and be subject to all the provisions of the Agreement.

• 7. Commencing immediately and continuing until the implementation date to be determined under paragraph 4, it is understood that participants shall not apply any measure affecting trade in maritime transport services except in response to measures applied by other countries and with a view to maintaining or improving the freedom of provision of maritime transport services, nor in such a manner as would improve their negotiating position and leverage.

• 8. The implementation of paragraph 7 shall be subject to surveillance in the NGMTS. Any participant may bring to the attention of the NGMTS any action or omission which it believes to be relevant to the fulfilment of paragraph 7. Such notifications shall be deemed to have been submitted to the NGMTS upon their receipt by the Secretariat.

Decision on Negotiations on Basic Telecommunications

Ministers decide as follows:

• 1. Negotiations shall be entered into on a voluntary basis with a view to the progressive liberalization of trade in telecommunications transport networks and services (hereinafter referred to as "basic telecommunications") within the framework of the General Agreement on Trade in Services.

• 2. Without prejudice to their outcome, the negotiations shall be comprehensive in scope, with no basic telecommunications excluded a priori.

• 3. A Negotiating Group on Basic Telecommunications (hereinafter referred to as the "NGBT") is established to carry out this mandate. The NGBT shall report periodically on the progress of these negotiations.

• 4. The negotiations in the NGBT shall be open to all governments and the European Communities which announce their intention to participate. To date, the following have announced their intention to take part in the negotiations:

  Australia, Austria, Canada, Chile, Cyprus, European Communities and their member States, Finland, Hong Kong, Hungary, Japan, Korea, Mexico, New Zealand, Norway, Slovak Republic, Sweden, Switzerland, Turkey, United States.

  Further notifications of intention to participate shall be addressed to the depositary of the Agreement Establishing the World Trade Organization.

• 5. The NGBT shall hold its first negotiating session no later than 16 May 1994. It shall conclude these negotiations and make a final report no later than 30 April 1996. The final report of the NGBT shall include a date for the implementation of results of these negotiations.

• 6. Any commitments resulting from the negotiations, including the date of their entry into force, shall be inscribed in the Schedules annexed to the General Agreement on Trade in Services and shall be subject to all the provisions of the Agreement.

• 7. Commencing immediately and continuing until the implementation date to be determined under paragraph 5, it is understood that no participant shall apply any measure affecting trade in basic telecommunications in such a manner as would improve its negotiating position and leverage. It is understood that this provision shall not prevent the pursuit of commercial and governmental arrangements regarding the provision of basic telecommunications services.

• 8. The implementation of paragraph 7 shall be subject to surveillance in the NGBT. Any participant may bring to the attention of the NGBT any action or omission which it believes to be relevant to the fulfilment of paragraph 7. Such notifications shall be deemed to have been submitted to the NGBT upon their receipt by the Secretariat.

Decision on Professional Services

Ministers decide to recommend that the Council for Trade in Services at its first meeting adopt the decision set out below.

The Council for Trade in Services,

Recognizing the impact of regulatory measures relating to professional qualifications, technical standards and licensing on the expansion of trade in professional services;

Desiring to establish multilateral disciplines with a view to ensuring that, when specific commitments are undertaken, such regulatory measures do not constitute unnecessary barriers to the supply of professional services;

Decides as follows:

• 1. The work programme foreseen in paragraph 4 of Article VI on Domestic Regulation should be put into effect immediately. To this end, a Working Party on Professional Services shall be established to examine and report, with recommendations, on the disciplines necessary to ensure that measures relating to qualification requirements and procedures, technical standards and licensing requirements in the field of professional services do not constitute unnecessary barriers to trade.

• 2. As a matter of priority, the Working Party shall make recommendations for the elaboration of multilateral disciplines in the accountancy sector, so as to give operational effect to specific commitments. In making these recommendations, the Working Party shall concentrate on:

  • (a) developing multilateral disciplines relating to market access so as to ensure that domestic regulatory requirements are: (i) based on objective and transparent criteria, such as competence and the ability to supply the service; (ii) not more burdensome than necessary to ensure the quality of the service, thereby facilitating the effective liberalization of accountancy services;

  • (b) the use of international standards and, in doing so, it shall encourage the cooperation with the relevant international organizations as defined under paragraph 5b) of Article VI, so as to give full effect to paragraph 5 of Article VII;

  • (c) facilitating the effective application of paragraph 6 of Article VI of the Agreement by establishing guidelines for the recognition of qualifications.

    In elaborating these disciplines, the Working Party shall take account of the importance of the governmental and non-governmental bodies regulating professional services.

Decision on Accession to the Agreement on Government Procurement

• 1. Ministers invite the Committee on Government Procurement established under the Agreement on Government Procurement in Annex 4 (b) of the Agreement Establishing the World Trade Organization to clarify that:

  • (a) a Member interested in accession according to paragraph 2 of Article XXIV of the Agreement on Government Procurement would communicate its interest to the Director-General of the WTO, submitting relevant information, including a coverage offer for incorporation in Appendix I having regard to the relevant provisions of the Agreement, in particular Article I and, where appropriate, Article V;

  • (b) the communication would be circulated to Parties to the Agreement;

  • (c) the Member interested in accession would hold consultations with the Parties on the terms for its accession to the Agreement;

  • (d) with a view to facilitating accession, the Committee would establish a working party if the Member in question, or any of the Parties to the Agreement, so requests. The working party should examine: (i) the coverage offer made by the applicant Member; and (ii) relevant information pertaining to export opportunities in the markets of the Parties, taking into account the existing and potential export capabilities of the applicant Member and export opportunities for the Parties in the market of the applicant Member;

  • (e) upon a decision by the Committee agreeing to the terms of accession including the coverage lists of the acceding Member, the acceding Member would deposit with the Director-General of the WTO an instrument of accession which states the terms so agreed. The acceding Member's coverage lists in English, French and Spanish would be appended to the Agreement;

  • (f) prior to the date of entry into force of the WTO Agreement, the above procedures would apply mutatis mutandis to CONTRACTING PARTIES to the GATT 1947 interested in accession, and the tasks assigned to the Director-General of the WTO would be carried out by the Director-General to the contracting parties to the GATT 1947.

• 2. It is noted that Committee decisions are arrived at on the basis of consensus. It is also noted that the non-application clause of paragraph 11 of Article XXIV is available to any Party.

Decision on the Application and Review of the Understanding on Rules and Procedures Governing the Settlement of Disputes

Ministers,

Recalling the Decision of 22 February 1994 that existing rules and procedures of GATT 1947 in the field of dispute settlement shall remain in effect until the date of entry into force of the Agreement Establishing the World Trade Organization,

Invite the relevant Councils and Committees to decide that they shall remain in operation for the purpose of dealing with any dispute for which the request for consultation was made before that date;

Invite the Ministerial Conference to complete a full review of dispute settlement rules and procedures under the World Trade Organization within four years after the entry into force of the Agreement Establishing the World Trade Organization, and to take a decision on the occasion of its first meeting after the completion of the review, whether to continue, modify or terminate such dispute settlement rules and procedures.

Understanding on commitments in financial services

Participants in the Uruguay Round have been enabled to take on specific commitments with respect to financial services under the General Agreement on Trade in Services (hereinafter referred to as the "Agreement") on the basis of an alternative approach to that covered by the provisions of Part III of the Agreement. It was agreed that this approach could be applied subject to the following understanding:

• i) it does not conflict with the provisions of the Agreement;

• (ii) it does not prejudice the right of any Member to schedule its specific commitments in accordance with the approach under Part III of the Agreement;

• (iii) resulting specific commitments shall apply on a most-favoured nation basis;

• (iv) no presumption has been created as to the degree of liberalization to which a Member is committing itself under the Agreement.

Interested Members, on the basis of negotiations, and subject to conditions and qualifications where specified, have inscribed in their schedule specific commitments conforming to the approach set out below.

A. Standstill

Any conditions, limitations and qualifications to the commitments noted below shall be limited to existing non-conforming measures.

B. Market Access

Monopoly Rights

• 1. In addition to Article VIII of the Agreement, the following shall apply:

  Each Member shall list in its schedule pertaining to financial services existing monopoly rights and shall endeavour to eliminate them or reduce their scope. Notwithstanding subparagraph 1 (b) of the Annex on Financial Services, this paragraph applies to the activities referred to in subparagraph 1 (b)(iii) of the Annex.

Financial Services purchased by Public Entities

• 2. Notwithstanding Article XIII of the Agreement, each Member shall ensure that financial service suppliers of any other Member established in its territory are accorded most-favoured-nation treatment and national treatment as regards the purchase or acquisition of financial services by public entities of the Member in its territory.

Cross-border Trade

• 3. Each Member shall permit non-resident suppliers of financial services to supply, as a principal, through an intermediary or as an intermediary, and under terms and conditions that accord national treatment, the following services:

  • (a) insurance of risks relating to:

    • (i) maritime shipping and commercial aviation and space launching and freight (including satellites), with such insurance to cover any or all of the following: the goods being transported, the vehicle transporting the goods and any liability arising therefrom; and

    • (ii) goods in international transit;

  • (b) reinsurance and retrocession and the services auxiliary to insurance as referred to in subparagraph 5(a)(iv) of the Annex;

  • (c) provision and transfer of financial information and financial data processing as referred to in subparagraph 5(a)(xv) of the Annex and advisory and other auxiliary services, excluding intermediation, relating to banking and other financial services as referred to in subparagraph 5(a)(xvi) of the Annex.

• 4. Each Member shall permit its residents to purchase in the territory of any other Member the financial services indicated in:

  • (a) subparagraph 3(a);

  • (b) subparagraph 3(b); and

  • (c) subparagraphs 5(a)(v) to (xvi) of the Annex.

Commercial Presence

• 5. Each Member shall grant financial service suppliers of any other Member the right to establish or expand within its territory, including through the acquisition of existing enterprises, a commercial presence.

• 6. A Member may impose terms, conditions and procedures for authorization of the establishment and expansion of a commercial presence in so far as they do not circumvent the Member's obligation under paragraph 5 and they are consistent with the other obligations of the Agreement.

New Financial Services

• 7. A Member shall permit financial service suppliers of any other Member established in its territory to offer in its territory any new financial service.

• 8. No Member shall take measures that prevent transfers of information or the processing of financial information, including transfers of data by electronic means, or that, subject to importation rules consistent with international agreements, prevent transfers of equipment, where such transfers of information, processing of financial information or transfers of equipment are necessary for the conduct of the ordinary business of a financial service supplier. Nothing in this paragraph restricts the right of a Member to protect personal data, personal privacy and the confidentiality of individual records and accounts so long as such right is not used to circumvent the provisions of the Agreement.

• 9.

  • (a) Each Member shall permit temporary entry into its territory of the following personnel of a financial service supplier of any other Member that is establishing or has established a commercial presence in the territory of the Member:

    • (i) senior managerial personnel possessing proprietary information essential to the establishment, control and operation of the services of the financial service supplier; and

    • (ii) (ii) specialists in the operation of the financial service supplier,

  • (b) (b) Each Member shall permit, subject to the availability of qualified personnel in its territory, temporary entry into its territory of the following personnel associated with a commercial presence of a financial service supplier of any other Member:

    • (i) specialists in computer services, telecommunication services and accounts of the financial service supplier; and

    • (ii) actuarial and legal specialists.

Non-discriminatory Measures

• 10. Each Member shall endeavour to remove or to limit any significant adverse effects on financial service suppliers of any other Member of:

  • (a) non-discriminatory measures that prevent financial service suppliers from offering in the Member's territory, in the form determined by the Member, all the financial services permitted by the Member;

  • (b) non-discriminatory measures that limit the expansion of the activities of financial service suppliers into the entire territory of the Member;

  • (c) measures of a Member, when such a Member applies the same measures to the supply of both banking and securities services, and a financial service supplier of any other Member concentrates its activities in the provision of securities services; and

  • (d) other measures that, although respecting the provisions of the Agreement, affect adversely the ability of financial service suppliers of any other Member to operate, compete or enter the Member's market;

    provided that any action taken under this paragraph would not unfairly discriminate against financial service suppliers of the Member taking such action.

• 11. With respect to the non-discriminatory measures referred to in subparagraphs 10(a) and (b), a Member shall endeavour not to limit or restrict the present degree of market opportunities nor the benefits already enjoyed by financial service suppliers of all other Members as a class in the territory of the Member, provided that this commitment does not result in unfair discrimination against financial service suppliers of the Member applying such measures.

C. National Treatment

• 1. Under terms and conditions that accord national treatment, each Member shall grant to financial service suppliers of any other Member established in its territory access to payment and clearing systems operated by public entities, and to official funding and refinancing facilities available in the normal course of ordinary business. This paragraph is not intended to confer access to the Member's lender of last resort facilities.

• 2. When membership or participation in, or access to, any selfregulatory body, securities or futures exchange or market, clearing agency, or any other organization or association, is required by a Member in order for financial service suppliers of any other Member to supply financial services on an equal basis with financial service suppliers of the Member, or when the Member provides directly or indirectly such entities, privileges or advantages in supplying financial services, the Member shall ensure that such entities accord national treatment to financial service suppliers of any other Member resident in the territory of the Member.

D. Definitions

For the purposes of this approach:

• 1. A non-resident supplier of financial services is a financial service supplier of a Member which supplies a financial service into the territory of another Member from an establishment located in the territory of another Member, regardless of whether such a financial service supplier has or has not a commercial presence in the territory of the Member in which the financial service is supplied.

• 2. "Commercial presence" means an enterprise within a Member's territory for the supply of financial services and includes wholly- or partly-owned subsidiaries, joint ventures, partnerships, sole proprietorships, franchising operations, branches, agencies, representative offices or other organizations.

• 3. A new financial service is a service of a financial nature, including services related to existing and new products or the manner in which a product is delivered, that is not supplied by any financial service supplier in the territory of a particular Member but which is supplied in the territory of another Member.

Vertaling : NL

Overeenkomst tot oprichting van de Wereldhandelsorganisatie

De Partijen bij deze Overeenkomst,

Erkennende dat hun betrekkingen op het gebied van handel en economie dienen te zijn gericht op verhoging van de levensstandaard, werkgelegenheid voor iedereen en een ruim, gestaag toenemend reëel inkomen en een grote, gestaag toenemende effectieve vraag, en op uitbreiding van de produktie van en handel in goederen en diensten, met optimaal gebruik van de mondiale hulpbronnen in overeenstemming met het doel van duurzame ontwikkeling, waarbij ernaar wordt gestreefd zowel het milieu te beschermen en te behouden, als de middelen hiertoe uit te breiden op een wijze die tegemoetkomt aan hun onderscheiden behoeften en belangen op verschillende niveaus van economische ontwikkeling,

Voorts erkennende dat daadwerkelijke inspanningen noodzakelijk zijn om te verzekeren dat ontwikkelingslanden, en vooral de minstontwikkelde landen, een aandeel verwerven in de groei van de internationale handel dat evenredig is aan de behoeften van hun economische ontwikkeling,

Geleid door de wens bij te dragen aan de verwezenlijking van deze doelstellingen door het aangaan, op grondslag van wederkerigheid en wederzijds voordeel, van overeenkomsten die een aanzienlijke verlaging van douanetarieven en een aanzienlijke vermindering van andere handelsbelemmeringen, alsmede de afschaffing van discriminerende behandeling in het internationale handelsverkeer, beogen,

Derhalve vastbesloten een geïntegreerd, meer levensvatbaar en duurzaam multilateraal handelsstelsel te ontwikkelen, dat de Algemene Overeenkomst betreffende Tarieven en Handel, de resultaten van in het verleden gedane pogingen tot handelsliberalisatie en alle resultaten van de Uruguay-Ronde van multilaterale handelsbesprekingen omvat,

Vastbesloten de aan dit multilaterale handelsstelsel ten grondslag liggende grondbeginselen en doelstellingen te beschermen en te bevorderen,

Zijn het volgende overeengekomen:

Artikel I. Oprichting van de organisatie

Hierbij wordt de Wereldhandelsorganisatie (hierna te noemen „de WTO”) opgericht.

Artikel II. Werkingssfeer van de WTO

• 1 De WTO vormt het gemeenschappelijke institutionele kader voor het onderhouden van handelsbetrekkingen tussen haar Leden in aangelegenheden die verband houden met de verdragen en bijbehorende juridische instrumenten die zijn opgenomen in de Bijlagen bij deze Overeenkomst.

• 2 De overeenkomsten en bijbehorende juridische instrumenten opgenomen in de Bijlagen 1, 2 en 3 (hierna te noemen de „Multilaterale Handelsovereenkomsten”) vormen een integrerend onderdeel van deze Overeenkomst, en zijn bindend voor alle Leden.

• 3 De overeenkomsten en bijbehorende juridische instrumenten opgenomen in Bijlage 4 (hierna te noemen de „Plurilaterale Handelsovereenkomsten”) vormen eveneens een onderdeel van deze Overeenkomst voor de Leden die deze overeenkomsten hebben aanvaard, en zijn bindend voor die Leden. De Plurilaterale Handelsovereenkomsten scheppen geen verplichtingen of rechten voor Leden die deze niet hebben aanvaard.

• 4 De Algemene Overeenkomst betreffende Tarieven en Handel van 1994, zoals genoemd in Bijlage 1A (hierna te noemen „GATT-Overeenkomst van 1994”) staat juridisch los van de Algemene Overeenkomst betreffende Tarieven en Handel van 30 oktober 1947, gehecht aan de slotakte van de Tweede Zitting van de Voorbereidende Commissie van de Conferentie der Verenigde Naties over Handel en Werkgelegenheid, zoals daarna verbeterd, geamendeerd of gewijzigd (hierna te noemen „GATT-Overeenkomst van 1947”).

Artikel III. Taken van de WTO

• 1 De WTO vergemakkelijkt de toepassing, het beheer en de werking en bevordert de doelstellingen van deze Overeenkomst en van de Multilaterale Handelsovereenkomsten, en biedt tevens het kader voor de toepassing, het beheer en de werking van de Plurilaterale Handelsovereenkomsten.

• 2 De WTO biedt het forum voor onderhandelingen tussen haar Leden betreffende hun multilaterale handelsbetrekkingen in aangelegenheden die het onderwerp zijn van de overeenkomsten in de bijlagen bij deze Overeenkomst. De WTO kan ook een forum zijn voor verdere onderhandelingen tussen haar Leden betreffende hun multilaterale handelsbetrekkingen, en een kader voor de toepassing van de resultaten van zulke onderhandelingen, wanneer de Ministeriële Conferentie hiertoe besluit.

• 3 De WTO voert het beheer over het Memorandum van Overeenstemming inzake regels en procedures betreffende de beslechting van geschillen (hierna te noemen „Memorandum inzake Geschillenbeslechting” of „DSU”), in Bijlage 2 bij deze Overeenkomst.

• 4 De WTO voert het beheer over de Regeling inzake toetsing van het handelsbeleid, (hierna te noemen de „TPRM”) opgenomen in Bijlage 3 bij deze Overeenkomst.

• 5 Met het oog op het bereiken van een grotere samenhang in de mondiale economische beleidsvorming werkt de WTO, als passend, samen met het Internationale Monetaire Fonds en met de Internationale Bank voor Herstel en Ontwikkeling en de daarmede verbonden organisaties.

Artikel IV. Structuur van de WTO

• 1 Er is een Ministeriële Conferentie, bestaande uit vertegenwoordigers van alle Leden, die ten minste eenmaal per twee jaar bijeenkomt. De Ministeriële Conferentie verricht de taken van de WTO en neemt de hiertoe noodzakelijke maatregelen. De Ministeriële Conferentie heeft de bevoegdheid besluiten te nemen inzake alle aangelegenheden vallend onder Multilaterale Handelsovereenkomsten, indien daarom door een Lid is verzocht, overeenkomstig de specifieke vereisten voor de besluitvorming in deze Overeenkomst en in de desbetreffende Multilaterale Handelsovereenkomst.

• 2 Er is een Algemene Raad, bestaande uit vertegenwoordigers van alle Leden, die als passend bijeenkomt. In de perioden tussen de bijeenkomsten van de Ministeriële Conferentie worden haar taken verricht door de Algemene Raad. De Algemene Raad verricht ook de hem in deze Overeenkomst opgedragen taken. De Algemene Raad stelt zijn eigen procedureregels vast en hecht zijn goedkeuring aan de procedureregels voor de in het zevende lid bedoelde Commissies.

• 3 De Algemene Raad komt als passend bijeen om zich te kwijten van de verantwoordelijkheden van het Orgaan voor Geschillenbeslechting voorzien in het Memorandum inzake Geschillenbeslechting. Het Orgaan voor Geschillenbeslechting heeft zijn eigen voorzitter en stelt de procedureregels vast die het nodig acht voor het nakomen van deze verantwoordelijkheden.

• 4 De Algemene Raad komt als passend bijeen om zich te kwijten van de verantwoordelijkheden van het Orgaan voor de toetsing van het handelsbeleid voorzien in de Regeling voor toetsing van het handelsbeleid in Bijlage 3. Het Orgaan voor de toetsing van het handelsbeleid heeft zijn eigen voorzitter en stelt de procedureregels vast die het nodig acht voor het nakomen van deze verantwoordelijkheden.

• 5 Er is een Raad voor de Handel in goederen, een Raad voor de Handel in diensten en een Raad voor de handelsaspecten van de intellectuele eigendom (hierna te noemen de „Raad voor TRIPs”), die hun werkzaamheden verrichten onder het algemene toezicht van de Algemene Raad. De Raad voor de Handel in goederen ziet toe op de werking van de Multilaterale Handelsovereenkomsten in Bijlage 1A. De Raad voor de Handel in diensten ziet toe op de werking van de Algemene Overeenkomst inzake de handel in diensten (hierna te noemen „de GATS”). De Raad voor de handelsaspecten van de intellectuele eigendom ziet toe op de werking van de Overeenkomst inzake de handelsaspecten van de intellectuele eigendom (hierna te noemen „de Overeenkomst inzake TRIPs”). Deze Raden verrichten de hun in de onderscheiden overeenkomsten en door de Algemene Raad opgedragen taken. Zij stellen hun onderscheiden procedureregels vast, onder voorbehoud van goedkeuring door de Algemene Raad. Het lidmaatschap van deze Raden staat open voor vertegenwoordigers van alle Leden. Deze Raden komen zo vaak bijeen als nodig is om hun taken te verrichten.

• 6 De Raad voor de Handel in goederen, de Raad voor de Handel in diensten en de Raad voor TRIPs stellen de eventueel vereiste ondersteunende organen in. Deze ondersteunende organen stellen hun onderscheiden procedureregels vast, onder voorbehoud van goedkeuring door hun onderscheiden Raden.

• 7 De Ministeriële Conferentie stelt in een Commissie inzake handel en ontwikkeling, een Commissie inzake beperkingen op grond van de betalingsbalans en een Commissie inzake begroting, financiën en administratie, die de taken verrichten welke hun zijn opgedragen in deze Overeenkomst en in de Multilaterale Handelsovereenkomsten en bijkomende taken hun opgedragen door de Algemene Raad, en kan bijkomende Commissies instellen met de door hem passend geachte taken. Als onderdeel van haar taken beziet de Commissie inzake handel en ontwikkeling periodiek de bijzondere bepalingen in de Multilaterale Handelsovereenkomsten ten gunste van de Leden die minstontwikkeld land zijn en brengt zij aan de Algemene Raad verslag uit met het oog op passende maatregelen. Het lidmaatschap van deze Commissies staat open voor vertegenwoordigers van alle Leden.

• 8 De in de Plurilaterale Handelsovereenkomsten voorziene organen verrichten de taken die hun bij deze overeenkomsten zijn opgedragen en functioneren binnen het institutionele kader van de WTO. Deze organen houden de Algemene Raad regelmatig op de hoogte van hun werkzaamheden.

Artikel V. Betrekkingen met andere organisaties

• 1 De Algemene Raad treft passende regelingen voor doeltreffende samenwerking met andere intergouvernementele organisaties met verantwoordelijkheden die verband houden met die van de WTO.

• 2 De Algemene Raad kan passende regelingen treffen voor overleg en samenwerking met niet-gouvernementele organisaties die zich bezighouden met aangelegenheden die verband houden met die van de WTO.

Artikel VI. Secretariaat

• 1 Er is een Secretariaat van de WTO (hierna te noemen „het Secretariaat”) met aan het hoofd een Directeur-Generaal.

• 2 De Ministeriële Conferentie benoemt de Directeur-Generaal en neemt voorschriften aan waarin de bevoegdheden, taken, arbeidsvoorwaarden en ambtstermijn van de Directeur-generaal zijn vastgelegd.

• 3 De Directeur-Generaal benoemt het personeel van het Secretariaat en bepaalt de taken en arbeidsvoorwaarden overeenkomstig de door de Ministeriële Conferentie aangenomen voorschriften.

• 4 De verantwoordelijkheden van de Directeur-Generaal en van het personeel van het Secretariaat hebben een uitsluitend internationaal karakter. Bij de vervulling van hun taken vragen noch ontvangen de Directeur-Generaal en het personeel van het Secretariaat instructies van een regering of andere autoriteit buiten de WTO. Zij onthouden zich van elk optreden dat een nadelige weerslag zou kunnen hebben op hun positie als internationale functionarissen. De Leden van de WTO eerbiedigen het internationale karakter van de verantwoordelijkheden van de Directeur-Generaal en het personeel van het Secretariaat en pogen niet dezen te beïnvloeden bij de vervulling van hun taken.

Artikel VII. Begroting en bijdragen

• 1 De Directeur-Generaal legt aan de Commissie inzake begroting, financiën en administratie de raming van de jaarlijkse begroting en het financieel overzicht van de WTO voor. De Commissie inzake begroting, financiën en administratie bestudeert de door de Directeur-Generaal voorgelegde raming van de jaarlijkse begroting en het financieel overzicht en doet daarover aanbevelingen aan de Algemene Raad. De raming van de jaarlijkse begroting is onderworpen aan goedkeuring door de Algemene Raad.

• 2 De Commissie inzake begroting, financiën en administratie stelt aan de Algemene Raad financiële voorschriften voor, die bepalingen omvatten waarin is vastgelegd:

  • a. de schaal van bijdragen aan de hand waarvan de kosten van de WTO tussen haar Leden worden verdeeld; en

  • b. de maatregelen te nemen ten aanzien van Leden met een betalingsachterstand.

  De financiële voorschriften zijn, voor zover uitvoerbaar, gebaseerd op de voorschriften en praktijken van de GATT-Overeenkomst van 1947.

• 3 De Algemene Raad neemt de financiële voorschriften en de ramingen van de jaarlijkse begroting aan met een meerderheid van twee derde die meer dan de helft van de Leden van de WTO omvat.

• 4 Elk Lid draagt onverwijld zijn aandeel in de kosten van de WTO bij aan de WTO in overeenstemming met de door de Algemene Raad aangenomen financiële voorschriften.

Artikel VIII. Status van de WTO

• 1 De WTO bezit rechtspersoonlijkheid, en aan de WTO wordt door elk van haar Leden de rechtsbevoegdheid toegekend die nodig is voor de uitoefening van haar taken.

• 2 Aan de WTO worden door elk van haar Leden de voorrechten en immuniteiten toegekend die nodig zijn voor de uitoefening van haar taken.

• 3 Aan de functionarissen van de WTO en de vertegenwoordigers van de Leden worden eveneens door elk van haar Leden de voorrechten en immuniteiten toegekend die nodig zijn voor de onafhankelijke uitoefening van hun taken in verband met de WTO.

• 4 De door een Lid aan de WTO, haar functionarissen en de vertegenwoordigers van de Leden toe te kennen voorrechten en immuniteiten zijn gelijk aan de voorrechten en immuniteiten bepaald in het Verdrag nopens de voorrechten en immuniteiten van de gespecialiseerde organisaties, goedgekeurd door de Algemene Vergadering van de Verenigde Naties op 21 november 1947.

• 5 De WTO kan een zetelovereenkomst sluiten.

Artikel IX. Besluitvorming

• 1 De WTO zet de praktijk voort van besluitvorming door middel van consensus die werd gehanteerd ingevolge de GATT-Overeenkomst van 1947209. Behalve indien anders bepaald, wordt de aangelegenheid in kwestie, wanneer er geen besluit door middel van consensus wordt bereikt, beslist door stemming. Op vergaderingen van de Ministeriële Conferentie en de Algemene Raad heeft elk Lid van de WTO één stem. Wanneer de Europese Gemeenschappen hun stemrecht uitoefenen, hebben zij een aantal stemmen gelijk aan het aantal van hun lidstaten210 die lid van de WTO zijn. Besluiten van de Ministeriële Conferentie en de Algemene Raad worden genomen met een meerderheid van de uitgebrachte stemmen, tenzij in deze Overeenkomst of in de desbetreffende Multilaterale Handelsovereenkomst anders bepaald. Besluiten van de Ministeriële Conferentie en de Algemene Raad worden genomen met een meerderheid van de uitgebrachte stemmen, tenzij in deze Overeenkomst of in de desbetreffende Multilaterale Handelsovereenkomst211 anders bepaald.

• 2 De Ministeriële Conferentie en de Algemene Raad hebben de uitsluitende bevoegdheid om interpretaties van deze Overeenkomst en van de Multilaterale Handelsovereenkomsten aan te nemen. In geval van een interpretatie van een Multilaterale Handelsovereenkomst in Bijlage 1, oefenen zij deze bevoegdheid uit op basis van een aanbeveling van de Raad die toeziet op de werking van die overeenkomst. Het besluit om een interpretatie aan te nemen wordt genomen met een drie vierde meerderheid van de Leden. Dit lid mag niet worden gehanteerd op een wijze die de wijzigingsbepalingen in artikel X zou ondermijnen.

• 3 In uitzonderlijke omstandigheden kan de Ministeriële Conferentie besluiten een Lid van een door deze Overeenkomst of een Multilaterale Handelsovereenkomst opgelegde verplichting te ontheffen, mits een zodanig besluit wordt goedgekeurd door drie vierde 212 van de Leden.

  • a. Een verzoek om ontheffing betreffende deze Overeenkomst wordt ter bestudering aan de Ministeriële Conferentie voorgelegd ingevolge het gebruik van besluitvorming bij consensus. De Ministeriële Conferentie stelt een termijn van ten hoogste 90 dagen vast om het verzoek te bestuderen. Indien gedurende deze termijn geen consensus wordt bereikt, wordt een besluit om ontheffing te verlenen genomen door drie vierde van de Leden.

  • b. Een verzoek om ontheffing betreffende de Multilaterale Handelsovereenkomsten in de Bijlagen 1A of 1B of 1C en de bijlagen daarbij wordt aanvankelijk voorgelegd aan onderscheidenlijk de Raad voor de handel in goederen, de Raad voor de handel in diensten of de Raad voor TRIPs ter bestudering gedurende een termijn van ten hoogste 90 dagen. Aan het einde van de termijn legt de desbetreffende Raad een rapport voor aan de Ministeriële Conferentie.

• 4 Een besluit van de Ministeriële Conferentie waarbij ontheffing wordt verleend dient de uitzonderlijke omstandigheden te vermelden die het besluit rechtvaardigen, de voorwaarden betreffende de toepassing van de ontheffing en de datum waarop de ontheffing eindigt. Een ontheffing voor een termijn van langer dan één jaar wordt door de Ministeriële Conferentie uiterlijk een jaar nadat zij is verleend opnieuw bezien en daarna elk jaar, totdat de ontheffing eindigt. Bij elke toetsing onderzoekt de Ministeriële Conferentie of de uitzonderlijke omstandigheden die de ontheffing rechtvaardigen nog steeds aanwezig zijn en of aan de aan de ontheffing verbonden voorwaarden is voldaan. Op basis van de jaarlijkse toetsing kan de Ministeriële Conferentie de ontheffing verlengen, wijzigen of beëindigen.

• 5 Voor besluiten ingevolge een Plurilaterale Handelsovereenkomst, met inbegrip van besluiten inzake interpretaties en ontheffingen, gelden de bepalingen van die overeenkomst.

Artikel X. Wijzigingen

• 1 Ieder Lid van de WTO kan een voorstel doen tot wijziging van de bepalingen van deze Overeenkomst of van de Multilaterale Handelsovereenkomsten in Bijlage 1 door een zodanig voorstel voor te leggen aan de Ministeriële Conferentie. De in artikel IV, lid 5, genoemde Raden kunnen ook voorstellen aan de Ministeriële Conferentie voorleggen tot wijziging van de bepalingen van de Multilaterale Handelsovereenkomsten in Bijlage 1 op de werking waarvan zij toezien. Gedurende een termijn van 90 dagen nadat het voorstel formeel tijdens de Ministeriële Conferentie is ingediend, dient een besluit van de Ministeriële Conferentie om de voorgestelde wijziging ter aanvaarding aan de Leden voor te leggen, bij consensus te worden genomen, tenzij de Ministeriële Conferentie besluit tot een langere termijn. In dat besluit wordt aangegeven of de bepalingen van de leden 3 of 4 van toepassing zijn, tenzij de bepalingen van de leden 2, 5 of 6 van toepassing zijn. Indien consensus is bereikt, legt de Ministeriële Conferentie de voorgestelde wijziging onverwijld aan de Leden voor ter aanvaarding. Indien niet binnen de vastgestelde termijn consensus is bereikt tijdens een vergadering van de Ministeriële Conferentie, besluit de Ministeriële Conferentie met een twee derde meerderheid van de Leden of de voorgestelde wijziging ter aanvaarding aan de Leden wordt voorgelegd. Behalve zoals bepaald in de leden 2, 5 en 6, zijn de bepalingen van lid 3 van toepassing op de voorgestelde wijziging, tenzij de Ministeriële Conferentie met een drie vierde meerderheid van de Leden besluit dat de bepalingen van lid 4 van toepassing zijn.

• 2 Wijzigingen van de bepalingen van dit artikel en van de bepalingen van de hieronder genoemde artikelen worden slechts van kracht na aanvaarding door alle Leden:

  • Artikel IX van deze Overeenkomst;

  • De artikelen I en II van de GATT-Overeenkomst van 1994;

  • Artikel II:1 van de GATS;

  • Artikel 4 van de Overeenkomst inzake TRIP's.

• 3 Wijzigingen van andere bepalingen van deze Overeenkomst of van de Multilaterale Handelsovereenkomsten in de Bijlagen 1A en 1C dan die genoemd in de leden 2 en 6, die van zodanige aard zijn dat daardoor de rechten en verplichtingen van de Leden zouden worden gewijzigd, worden voor de Leden die deze hebben aanvaard van kracht na aanvaarding door twee derde van de Leden en daarna voor elk ander Lid nadat dit de wijzigingen heeft aanvaard. De Ministeriële Conferentie kan met een drie vierde meerderheid van de Leden besluiten dat wijzigingen die ingevolge dit lid van kracht worden van zodanige aard zijn dat een Lid dat deze niet binnen een per geval door de Ministeriële Conferentie bepaalde termijn heeft aanvaard, vrij is zich terug te trekken uit de WTO of Lid te blijven met toestemming van de Ministeriële Conferentie.

• 4 Wijzigingen van andere bepalingen van deze Overeenkomst of van de Multilaterale Handelsovereenkomsten in de Bijlagen 1A en 1C dan die genoemd in de leden 2 en 6, die van zodanige aard zijn dat daardoor de rechten en verplichtingen van de Leden niet worden gewijzigd, worden voor alle Leden van kracht na aanvaarding door twee derde van de Leden.

• 5 Behalve zoals bepaald in lid 2 worden wijzigingen van de Delen I, II en III van de GATS en de onderscheiden bijlagen voor de Leden die deze wijzigingen hebben aanvaard van kracht na aanvaarding door twee derde van de Leden en daarna voor elk Lid dat deze wijzigingen aanvaardt. De Ministeriële Conferentie kan met een drie vierde meerderheid van de Leden besluiten dat wijzigingen die van kracht worden ingevolge de voorgaande bepaling, van zodanige aard zijn dat een Lid dat deze niet heeft aanvaard binnen een door de Ministeriële Conferentie per geval bepaalde termijn, vrij is zich terug te trekken uit de WTO of Lid te blijven met toestemming van de Ministeriële Conferentie. Wijzigingen van de Delen IV, V en VI van de GATS en de onderscheiden bijlagen worden voor alle Leden van kracht na aanvaarding door twee derde van de Leden.

• 6 Niettegenstaande de andere bepalingen van dit artikel kunnen wijzigingen van de Overeenkomst inzake TRIP's, die voldoen aan de vereisten van artikel 71, lid 2, van die Overeenkomst door de Ministeriële Conferentie worden aangenomen zonder verdere formele aanvaardingsprocedure.

• 7 Ieder Lid dat een wijziging van deze Overeenkomst of van een Multilaterale Handelsovereenkomst in Bijlage 1 aanvaardt, dient binnen de door de Ministeriële Conferentie bepaalde termijn voor aanvaarding een akte van aanvaarding neder te leggen bij de Directeur-Generaal van de WTO.

• 8 Ieder Lid van de WTO kan een voorstel doen tot wijziging van de bepalingen van de Multilaterale Handelsovereenkomsten in de Bijlagen 2 en 3 door een zodanig voorstel voor te leggen aan de Ministeriële Conferentie. Het besluit om wijzigingen van de Multilaterale Handelsovereenkomst in Bijlage 2 goed te keuren dient bij consensus te worden genomen en deze wijzigingen worden van kracht voor alle Leden na goedkeuring door de Ministeriële Conferentie. Besluiten tot goedkeuring van wijzigingen van de Multilaterale Handelsovereenkomst in Bijlage 3 worden van kracht voor alle Leden na goedkeuring door de Ministeriële Conferentie.

• 9 Op verzoek van de Leden die partij zijn bij een Handelsovereenkomst kan de Ministeriële Conferentie uitsluitend bij consensus besluiten die Overeenkomst toe te voegen aan Bijlage 4. Op verzoek van de Leden die partij zijn bij een Plurilaterale Handelsovereenkomst in Bijlage 4 kan de Ministeriële Conferentie besluiten die Overeenkomst uit Bijlage 4 te schrappen.

• 10 Voor wijzigingen van een Plurilaterale Handelsovereenkomst gelden de bepalingen van die Overeenkomst.

Artikel XI. Oorspronkelijk lidmaatschap

• 1 Op de datum van inwerkingtreding van deze Overeenkomst worden de partijen bij de GATT-Overeenkomst van 1947 en de Europese Gemeenschappen, mits zij deze Overeenkomst en de Multilaterale Handelsovereenkomst aanvaarden met inbegrip van de Lijsten van Concessies en Verbintenissen gehecht aan de GATT-Overeenkomst van 1994 alsmede de Lijsten van Specifieke Verbintenissen gehecht aan de GATS, oorspronkelijke Leden van de WTO.

• 2 Van de als zodanig door de Verenigde Naties erkende minstontwikkelde landen wordt slechts verlangd dat zij verbintenissen aangaan en concessies doen in de mate die overeenstemt met hun individuele ontwikkeling, financiële behoeften en handelsbehoeften of hun administratieve en institutionele vermogens.

Artikel XII. Toetreding

• 1 Iedere staat die of ieder afzonderlijk douanegebied dat volledige zelfstandigheid bezit in de buitenlandse handelsbetrekkingen of in de andere aangelegenheden geregeld in deze Overeenkomst en de Multilaterale Handelsovereenkomsten kan tot deze Overeenkomst toetreden op tussen deze staat of dat gebied en de WTO overeen te komen voorwaarden. Deze toetreding geldt voor deze Overeenkomst en de daaraan gehechte Multilaterale Handelsovereenkomsten.

• 2 Besluiten inzake toetreding worden genomen door de Ministeriële Conferentie. De Ministeriële Conferentie hecht haar goedkeuring aan de overeenkomst omtrent de toetredingsvoorwaarden met een twee derde meerderheid van de Leden van de WTO.

• 3 Voor toetreding tot een Plurilaterale Handelsovereenkomst gelden de bepalingen van die Overeenkomst.

Artikel XIII. Niet-toepassing van Multilaterale Handelsovereenkomsten tussen bepaalde Leden

• 1 Deze Overeenkomst en de Multilaterale Handelsovereenkomsten in de Bijlagen 1 en 2 zijn niet van toepassing tussen een Lid en een ander Lid indien een van beide Leden, op het tijdstip waarop het Lid wordt, niet instemt met deze toepassing.

• 2 Op het eerste lid kan tussen oorspronkelijke Leden van de WTO die Partij waren bij de GATT-Overeenkomst van 1947 slechts een beroep worden gedaan, wanneer eerder een beroep was gedaan op artikel XXXV van die Overeenkomst en dat artikel van toepassing was tussen die Overeenkomstsluitende Partijen op het tijdstip waarop deze Overeenkomst voor hen in werking treedt.

• 3 Het eerste lid is slechts van toepassing tussen een Lid en een ander Lid dat ingevolge artikel XII toetreedt, indien het Lid dat niet met de toepassing instemt de Ministeriële Conferentie daarvan in kennis heeft gesteld vóór de goedkeuring van de overeenkomst inzake de toetredingsvoorwaarden door de Ministeriële Conferentie.

• 4 Op verzoek van een Lid kan de Ministeriële Conferentie de werking van dit artikel in bepaalde gevallen toetsen en passende aanbevelingen doen.

• 5 Voor niet-toepassing van een Plurilaterale Handelsovereenkomst tussen Partijen bij die Overeenkomst gelden de bepalingen van die Overeenkomst.

Artikel XIV. Aanvaarding en inwerkingtreding, en nederlegging van akten

• 1 Deze Overeenkomst staat open voor aanvaarding, door ondertekening of op andere wijze, door de Partijen bij de GATT-Overeenkomst van 1947 en door de Europese Gemeenschappen die gerechtigd zijn oorspronkelijke Leden van de WTO te worden in overeenstemming met artikel XI van deze Overeenkomst. Deze aanvaarding geldt voor deze Overeenkomst en de daaraan gehechte Multilaterale Handelsovereenkomsten. Deze Overeenkomst en de daaraan gehechte Multilaterale Handelsovereenkomsten treden in werking op de datum door de Ministers bepaald in overeenstemming met paragraaf 3 van de Slotakte waarin de resultaten van de Uruguay-Ronde van de multilaterale handelsbesprekingen zijn neergelegd en blijft voor aanvaarding openstaan voor een tijdvak van twee jaar na die datum tenzij de Ministers anders besluiten. Aanvaarding na de inwerkingtreding van deze Overeenkomst wordt van kracht op de dertigste dag na de nederlegging van de akte van aanvaarding.

• 2 Een Lid dat deze Overeenkomst na de inwerkingtreding ervan aanvaardt, past de concessies en verplichtingen in de Multilaterale Handelsovereenkomsten die moeten worden toegepast in de loop van een termijn welke aanvangt op de datum van inwerkingtreding van deze Overeenkomst toe, alsof het deze Overeenkomst had aanvaard op de datum van inwerkingtreding.

• 3 Tot de inwerkingtreding van deze Overeenkomst zijn de tekst van deze Overeenkomst en van de Multilaterale Handelsovereenkomsten nedergelegd bij de Directeur-Generaal van de Partijen bij de GATT-Overeenkomst van 1947. De Directeur-Generaal verstrekt onverwijld een voor eensluidend gewaarmerkt afschrift van deze Overeenkomst en van de Multilaterale Handelsovereenkomsten en een kennisgeving van elke aanvaarding daarvan, aan elke regering en aan de Europese Gemeenschappen die deze Overeenkomst aanvaardt. Deze Overeenkomst en de Multilaterale Handelsovereenkomsten en eventuele wijzigingen daarop worden bij de inwerkingtreding van deze Overeenkomst nedergelegd bij de Directeur-Generaal van de WTO.

• 4 Op de aanvaarding en inwerkingtreding van een Plurilaterale Handelsovereenkomst zijn de bepalingen van die Overeenkomst van toepassing. Deze Overeenkomsten worden nedergelegd bij de Directeur-Generaal van de Partijen bij de GATT-Overeenkomst van 1947. Na inwerkingtreding van deze Overeenkomst worden deze overeenkomsten nedergelegd bij de Directeur-Generaal van de WTO.

Artikel XV. Terugtrekking

• 1 Ieder Lid kan zich terugtrekken uit deze Overeenkomst. Deze terugtrekking geldt zowel voor deze Overeenkomst als voor de Multilaterale Handelsovereenkomsten en wordt van kracht na het verstrijken van zes maanden na de datum waarop de schriftelijke kennisgeving van terugtrekking door de Directeur-Generaal van de WTO is ontvangen.

• 2 Voor de terugtrekking uit een Plurilaterale Overeenkomst gelden de bepalingen van die Overeenkomst.

Artikel XVI. Diverse bepalingen

• 1 Behalve indien anders bepaald in deze Overeenkomst of in de Multilaterale Handelsovereenkomsten, laat de WTO zich leiden door de besluiten, procedures en gebruikelijke praktijken gehanteerd door de Partijen bij de GATT-Overeenkomst van 1947 en de in het kader van de GATT-Overeenkomst van 1947 ingestelde organen.

• 2 Voor zover uitvoerbaar wordt het Secretariaat van de GATT-Overeenkomst van 1947 het Secretariaat van de WTO en treedt de Directeur-Generaal van de Partijen bij de GATT-Overeenkomst van 1947 op als Directeur-Generaal van de WTO, totdat de Ministeriële Conferentie een Directeur-Generaal heeft benoemd in overeenstemming met artikel VI, lid 2, van deze Overeenkomst.

• 3 In geval van strijdigheid tussen een bepaling van deze Overeenkomst en een bepaling van een Multilaterale Handelsovereenkomst, is de bepaling van deze Overeenkomst doorslaggevend wat deze strijdigheid betreft.

• 4 Elk Lid waarborgt dat zijn wetten, voorschriften en administratieve procedures overeenstemmen met zijn verplichtingen zoals bepaald in de aangehechte Overeenkomsten.

• 5 Er mogen geen voorbehouden worden gemaakt ten aanzien van enige bepaling in deze Overeenkomst. Voorbehouden ten aanzien van enige bepaling van de Multilaterale Handelsovereenkomsten mogen slechts worden gemaakt voor zover voorzien in die Overeenkomsten. Met betrekking tot voorbehouden ten aanzien van een bepaling van een Plurilaterale Handelsovereenkomst gelden de bepalingen van die Overeenkomst.

• 6 Deze Overeenkomst wordt geregistreerd overeenkomstig de bepalingen van artikel 102 van het Handvest der Verenigde Naties.

GEDAAN te Marrakesh, vijftien april negentienhonderd vierennegentig, in één exemplaar in de Engelse, de Franse en de Spaanse taal, zijnde elke tekst authentiek.

Toelichting:

De uitdrukkingen „land” of „landen” zoals gebruikt in deze Overeenkomst en de Multilaterale Handelsovereenkomsten worden geacht elk afzonderlijk douanegebied te omvatten dat Lid van de WTO is.

Ingeval een afzonderlijk douanegebied Lid van de WTO is, wordt een uitdrukking in deze Overeenkomst en de Multilaterale Handelsovereenkomsten, wanneer deze nader wordt omschreven met het woord „nationaal”, geïnterpreteerd als betrekking hebbend op dat douanegebied, tenzij anders aangegeven.

Lijst van bijlagen

BIJLAGE 1

BIJLAGE 1A: Multilaterale Overeenkomsten inzake de handel in goederen

Algemene Overeenkomst inzake Tarieven en Handel 1994

Overeenkomst inzake de landbouw

Overeenkomst inzake sanitaire en fytosanitaire maatregelen

Overeenkomst inzake textiel- en kledingprodukten

Overeenkomst inzake technische handelsbelemmeringen

Overeenkomst inzake de met de handel verband houdende investeringsmaatregelen

Overeenkomst inzake de toepassing van artikel VI van de Algemene Overeenkomst inzake Tarieven en Handel 1994

Overeenkomst inzake de toepassing van artikel VII van de Algemene Overeenkomst inzake Tarieven en Handel 1994

Overeenkomst inzake inspectie voor verzending

Overeenkomst betreffende de oorsprongsregels

Overeenkomst inzake procedures op het gebied van invoervergunningen

Overeenkomst inzake subsidies en compenserende maatregelen

Overeenkomst inzake vrijwaringsmaatregelen

BIJLAGE 1B: Algemene Overeenkomst inzake de handel in diensten

BIJLAGE 1C: Overeenkomst inzake de handelsaspecten van de intellectuele eigendom

BIJLAGE 2

Memorandum van Overeenstemming inzake de regels en procedures betreffende de beslechting van geschillen

BIJLAGE 3

Regeling inzake toetsing van het handelsbeleid

BIJLAGE 4

Plurilaterale Handelsovereenkomsten

Overeenkomst inzake de handel in burgerluchtvaartuigen

Overeenkomst inzake overheidsopdrachten

Internationale Overeenkomst inzake zuivelprodukten

Internationale Overeenkomst inzake rundvlees

BIJLAGE 1

BIJLAGE 1A

MULTILATERALE OVEREENKOMSTEN INZAKE DE HANDEL IN GOEDEREN

Algemene noot voor de interpretatie betreffende bijlage 1A:

Bij strijdigheid tussen een bepaling van de Algemene Overeenkomst inzake Tarieven en Handel 1994 en een bepaling van een andere in Bijlage 1A bij de Overeenkomst tot oprichting van de Wereldhandelsorganisatie (in de overeenkomsten in Bijlage I A „WTO-Overeenkomst” genoemd) opgenomen overeenkomst, prevaleert de bepaling van de andere overeenkomst voor zover er sprake is van de strijdigheid.

Algemene Overeenkomst inzake Tarieven en Handel 1994

1. De Algemene Overeenkomst inzake Tarieven en Handel 1994 („GATT 1994”) bestaat uit:

• a de bepalingen in de Algemene Overeenkomst inzake Tarieven en Handel van 30 oktober 1947, gehecht aan de Slotakte die werd goedgekeurd aan het einde van de tweede zitting van de Voorbereidende Commissie van de Conferentie van de Verenigde Naties over Handel en Werkgelegenheid (exclusief het protocol van Voorlopige Toepassing), zoals verbeterd, herzien of gewijzigd via wettelijke instrumenten die vóór de datum van inwerkingtreding van de WTO-Overeenkomst van kracht werden;

• b de bepalingen van de onderstaande wettelijke instrumenten die krachtens GATT 1947 vóór de datum van inwerkingtreding van de WTO-Overeenkomst van kracht werden:

  • i. protocollen en certificaties betreffende tariefconcessies;

  • ii. toetredingsprotocollen (exclusief de bepalingen a betreffende voorlopige toepassing en intrekking van voorlopige toepassing en b krachtens welke Deel II van GATT 1947 voorlopig wordt toegepast voor zover zulks niet onverenigbaar is met de op de datum van het protocol bestaande wetgeving);

  • iii. besluiten betreffende krachtens artikel XXV van GATT 1947 toegekende ontheffingen die op de datum van inwerkingtreding van de WTO-Overeenkomst nog van kracht zijn213;

  • iv. andere besluiten van de Overeenkomstsluitende Partijen bij GATT 1947;

• c de hiernavolgende Memoranda van Overeenstemming:

  • i. Memorandum van Overeenstemming betreffende de interpretatie van artikel II, lid 1, sub b., van de Algemene Overeenkomst inzake Tarieven en Handel 1994;

  • ii. Memorandum van Overeenstemming betreffende de interpretatie van artikel XVII van de Algemene Overeenkomst inzake Tarieven en Handel 1994;

  • iii. Memorandum van Overeenstemming betreffende de betalingsbalansbepalingen van de Algemene Overeenkomst inzake Tarieven en Handel 1994;

  • iv. Memorandum van Overeenstemming betreffende de interpretatie van artikel XXIV van de Algemene Overeenkomst inzake Tarieven en Handel 1994;

  • v. Memorandum van Overeenstemming betreffende ontheffingen van verplichtingen krachtens de Algemene Overeenkomst inzake Tarieven en Handel 1994;

  • vi. Memorandum van Overeenstemming betreffende de interpretatie van artikel XXVIII van de Algemene Overeenkomst inzake Tarieven en Handel 1994; en

• d het Protocol van Marrakesh bij GATT 1994.

2. Verklarende aantekeningen:

• a Waar in de bepalingen van GATT 1994 „Overeenkomstsluitende Partij” staat, moet worden gelezen „Lid”. Waar staat „minder ontwikkelde Overeenkomstsluitende Partij” en „ontwikkelde Overeenkomstsluitende Partij” moet worden gelezen „een Lid dat een ontwikkelingsland is” en „een Lid dat een ontwikkeld land” is. Waar staat „Uitvoerend Secretaris” moet worden gelezen „Directeur-Generaal van de WTO”.

• b De verwijzingen naar een gezamenlijk optreden van de OVEREENKOMSTSLUITENDE PARTIJEN in artikel XV, leden 1, 2 en 8, artikel XXXVIII en in de aantekeningen ad artikel XII en ad artikel XVIII alsmede in de bepalingen betreffende bijzondere valuta-overeenkomsten in artikel XV, leden 2, 3, 6, 7 en 9, van GATT 1994 moeten worden gezien als verwijzingen naar de WTO. De overige functies die de bepalingen van GATT 1994 aan de gezamenlijk optredende OVEREENKOMSTSLUITENDE PARTIJEN toewijzen, worden door de Ministeriële Conferentie toegekend.

• c

  • i. De tekst van GATT 1994 is authentiek in het Engels, Frans en Spaans.

  • ii. In de tekst van GATT 1994 in het Frans worden de in bijlage A bij document MTN.TNC/41 vermelde terminologische verbeteringen aangebracht.

  • iii. De authentieke tekst van GATT 1994 in het Spaans is de tekst in Volume IV van de Basic Instruments and Selected Document Series waarop de in bijlage B bij document MTN.TNC/41 vermelde terminologische wijzigingen worden aangebracht.

3.

• a De bepalingen van Deel II van GATT 1994 zijn niet van toepassing op door een Lid getroffen maatregelen krachtens door dat Lid voordat het Overeenkomstsluitende Partij bij GATT 1947 werd vastgestelde specifieke verplichte wetgeving die het gebruik, de verkoop of (ver)huur van in het buitenland gebouwde of in het buitenland omgebouwde schepen voor commerciële toepassingen tussen punten in de nationale wateren of de wateren van een exclusieve economische zone verbiedt. Deze vrijstelling is van toepassing op: a. de handhaving of onmiddellijke verlenging van een niet-conforme bepaling van dergelijke wetgeving en b. de wijziging op een niet-conforme bepaling van dergelijke wetgeving, voor zover de wijziging de overeenstemming van de bepaling met deel II van GATT 1947 niet vermindert. Deze vrijstelling blijft beperkt tot maatregelen getroffen krachtens in het voorgaande beschreven wetgeving die vóór de datum van inwerkingtreding van de WTO-Overeenkomst wordt aangemeld en gespecificeerd. Indien dergelijke wetgeving vervolgens wordt gewijzigd om haar overeenstemming met Deel II van GATT 1994 te verminderen, komt zij niet langer in aanmerking om onder deze paragraaf te vallen.

• b De Ministeriële Conferentie onderzoekt deze vrijstelling op zijn laatst vijf jaar na de datum van inwerkingtreding van de WTO-Overeenkomst opnieuw en vervolgens zolang de vrijstelling van kracht is om de twee jaar om te bezien of de voorwaarden die de noodzaak van de vrijstelling schiepen nog gelden.

• c Een Lid wiens maatregelen onder deze vrijstelling vallen, legt jaarlijks een gedetailleerd statistisch bericht over omvattende een zich over vijf jaar uitstrekkend voortschrijdend gemiddelde van feitelijke en verwachte leveringen van bedoelde schepen alsmede aanvullende informatie over het gebruik, de verkoop, de (ver)huur of het herstel van bedoelde onder deze vrijstelling vallende schepen.

• d Een Lid dat meent dat deze vrijstelling zo functioneert dat zij een wederkerige en evenredige beperking op het gebruik, de verkoop, de (ver)huur of het herstel van op het grondgebied van het Lid dat een beroep op de vrijstelling doet gebouwde schepen rechtvaardigt, is vrij een dergelijke beperking in te stellen, behoudens voorafgaande kennisgeving aan de Ministeriële Conferentie.

• e Deze vrijstelling laat in sectoriële overeenkomsten of in het kader van andere fora overeengekomen oplossingen betreffende specifieke aspecten van de onder deze vrijstelling vallende wetgeving onverlet.

Memorandum van Overeenstemming betreffende de interpretatie van artikel II, lid 1, sub b, van de Algemene Overeenkomst inzake Tarieven en Handel 1994

De Leden komen het volgende overeen:

1.

Met het oog op de doorzichtigheid van de wettelijke rechten en verplichtingen voortvloeiende uit lid 1, sub b. van artikel II worden de aard en het niveau van alle in die bepaling bedoelde „andere rechten of heffingen” die op geconsolideerde tariefposten worden geheven in de aan GATT 1994 gehechte Lijsten van concessies naast de tariefpost waarop zij betrekking hebben, vermeld. Overeengekomen wordt dat deze vermelding het wettelijk karakter van „andere rechten of heffingen” niet wijzigt.

2.

De datum met ingang waarvan „andere rechten of heffingen” voor de toepassing van artikel II zijn geconsolideerd, is 15 april 1994. „Andere rechten of heffingen” worden derhalve in de met de op die datum geldende niveaus in de Lijsten vermeld. Bij alle volgende heronderhandelingen over een concessie of onderhandelingen over een nieuwe concessie wordt de geldende datum voor de tariefpost in kwestie de datum van opneming van de nieuwe concessie op de desbetreffende Lijst. De datum van het instrument via hetwelk een concessie ten aanzien van een bepaalde tariefpost voor het eerst in GATT 1947 of GATT 1994 werd opgenomen, zal evenwel ook in kolom 6 van de losbladige Lijsten blijven worden aangegeven.

3.

Voor alle tariefconsolidaties vindt vermelding van „andere rechten of heffingen” plaats.

4.

Wanneer ten aanzien van een tariefpost eerder een concessie werd toegekend, is het niveau van de in de desbetreffende Lijst vermelde „andere rechten of heffingen” niet hoger dan het niveau dat bij de eerste opneming van de concessie op die Lijst gold. Het staat ieder Lid vrij om het bestaan van een „ander recht of andere heffing” te betwisten op grond van het feit dat een dergelijk „ander recht of een dergelijke andere heffing” ten tijde van de oorspronkelijke consolidatie van de tariefpost in kwestie niet bestond alsmede op grond van de samenhang van het vermelde niveau van een „ander recht of andere heffing” met het eerder geconsolideerde niveau, en wel gedurende een periode van drie jaar na de datum van inwerkingtreding van de WTO-Overeenkomst of drie jaar na de datum van neerlegging bij de Directeur-Generaal van de WTO van het instrument via hetwelk bedoelde Lijst in GATT 1994 werd opgenomen, indien die datum later valt.

5.

De vermelding van „andere rechten of heffingen” in de Lijsten laat hun verenigbaarheid met rechten en verplichtingen uit hoofde van GATT 1994 andere dan die waarop punt 4 betrekking heeft onverlet. Alle Leden behouden het recht om de verenigbaarheid van een „ander recht of andere heffing” met die verplichtingen te allen tijde te betwisten.

6.

Voor de toepassing van dit Memorandum van Overeenstemming gelden de bepalingen van de artikelen XXII en XXIII van GATT 1994, zoals gepreciseerd en tenuitvoergelegd in het Memorandum van Overeenstemming inzake de beslechting van geschillen.

7.

„Andere rechten of heffingen” die op een Lijst zijn weggelaten bij de nederlegging van het instrument via hetwelk die Lijst in GATT 1994 wordt opgenomen bij, tot de datum van inwerkingtreding van de WTO-Overeenkomst, de Directeur-Generaal van de Overeenkomstsluitende Partijen van GATT 1947 of, daarna, bij de Directeur-Generaal van de WTO, worden later niet aan die Lijst toegevoegd en „andere rechten of heffingen” waarvoor een lager niveau werd aangegaan dan het bestaande op de geldende datum worden niet tot dat niveau verhoogd, tenzij dergelijke toevoegingen of wijzigingen binnen zes maanden na de datum van nederlegging van het instrument geschieden.

8.

Het besluit in punt 2 betreffende de voor elke concessie geldende datum met het oog op de toepassing van lid 1, sub b. van artikel II van GATT 1994 doet het op 26 maart 1980 genomen besluit betreffende de geldende datum (BISD 27S/24) teniet.

Memorandum van Overeenstemming betreffende de interpretatie van artikel XVII van de Algemene Overeenkomst inzake Tarieven en Handel 1994

De Leden,

Erop wijzende dat in artikel XVII voor de Leden verplichtingen worden vastgesteld ten aanzien van de activiteiten van de in lid 1 van dat Artikel bedoelde staatshandelsondernemingen, welke in overeenstemming moeten zijn met de algemene beginselen van non-discriminatoire behandeling voorgeschreven in GATT 1994 voor overheidsmaatregelen betreffende de invoer of uitvoer door particuliere handelaren;

Er voorts op wijzende dat de Leden zijn onderworpen aan hun verplichtingen uit hoofde van GATT 1994 wat betreft de overheidsmaatregelen die betrekking hebben op staatshandelsondernemingen;

Erkennende dat dit Memorandum de in artikel XVII beschreven essentiële disciplines onverlet laat;

Komen het volgende overeen:

1.

Teneinde de doorzichtigheid van de activiteiten van staatshandelsondernemingen te verzekeren, melden de Leden de aan de volgende werkdefinitie beantwoordende ondernemingen bij de Raad voor de handel in goederen aan voor toetsing door de krachtens lid 5 op te richten werkgroep:

• „Overheids- en niet-overheidsondernemingen, inclusief marketingbureaus, waaraan uitsluitende of bijzondere rechten of voorrechten zijn verleend, inclusief wettelijke of constitutionele bevoegdheden, bij de uitoefening waarvan zij door hun verkopen of aankopen het niveau of de koers van de in- of uitvoer beïnvloeden.”

Deze aanmeldingseis geldt niet voor de invoer van produkten die zijn bestemd voor onmiddellijk of eindverbruik door of voor rekening van de overheid of door de in het voorgaande beschreven ondernemingen en niet om te worden herverkocht of gebruikt bij de produktie van voor de verkoop bestemde goederen.

2.

Elk Lid onderwerpt zijn beleid met betrekking tot de aanmelding van staatshandelsondernemingen bij de Raad voor de handel in goederen aan een onderzoek met inachtneming van het bepaalde in dit Memorandum. Bij dit onderzoek dient elk Lid rekening te houden met de noodzaak om bij zijn aanmeldingen een zo groot mogelijke doorzichtigheid te verzekeren zodat een duidelijk beeld kan worden verkregen van de functioneringswijze van de aangemelde ondernemingen en het effect van hun activiteiten op de internationale handel.

3.

De aanmeldingen worden gedaan overeenkomstig de op 24 mei 1960 (BISD 9S/184-185) goedgekeurde vragenlijst betreffende de staatshandel, met dien verstande dat de Leden de in lid 1 bedoelde ondernemingen aanmelden ongeacht of er al dan niet inderdaad in- of uitvoer heeft plaatsgevonden.

4.

Elk Lid dat reden heeft om aan te nemen dat een ander Lid niet op passende wijze aan zijn aanmeldingsplicht heeft voldaan, kan zulks opnemen met het betrokken Lid. Indien de zaak niet op bevredigende wijze wordt opgelost, kan het Lid bij de Raad voor de handel in goederen een tegenaanmelding aandoen die door de krachtens lid 5 opgerichte werkgroep moet worden onderzocht en waarvan het betrokken Lid tezelfdertijd op de hoogte wordt gesteld.

5.

Namens de Raad voor de handel in goederen wordt een werkgroep opgericht die belast wordt met het onderzoek van aanmeldingen en tegenaanmeldingen. In het licht van dit onderzoek en onverminderd lid 4, sub c. van artikel XVII kan de Raad voor de handel in goederen aanbevelingen doen aangaande de toereikendheid van aanmeldingen en de noodzaak van verder informatie. De werkgroep onderzoekt in het licht van de ontvangen aanmeldingen tevens de geschiktheid van voornoemde vragenlijst inzake staatshandel en welke staatshandelsondernemingen krachtens lid 1 werden aangemeld. Zij stelt eveneens een enuntiatieve lijst op van de soorten betrekkingen tussen overheden en ondernemingen en de soorten activiteiten waarmee deze ondernemingen zich bezighouden en die voor de toepassing van artikel XVII van belang kunnen zijn. Overeengekomen wordt dat het secretariaat ten behoeve van de werkgroep een algemeen voorlichtingsdocument zal opstellen over de activiteiten van staatshandelsondernemingen die betrekking hebben op de internationale handel. Alle Leden die zulks wensen, kunnen deel uitmaken van de werkgroep die binnen een jaar na de datum van inwerkingtreding van de WTO-Overeenkomst bijeenkomt en vervolgens tenminste éénmaal per jaar. Zij brengt jaarlijks verslag uit aan de Raad voor de handel in goederen214.

Memorandum van Overeenstemming betreffende de Betalingsbalans-bepalingen van de Algemene Overeenkomst inzake Tarieven en Handel 1994

De Leden,

Erkennende de bepalingen van artikel XII en XVIII, deel B, van GATT 1994 en van de op 28 november 1979 goedgekeurde Verklaring inzake ter bescherming van de betalingsbalans genomen handelsmaatregelen (BISD 26S/205-209, in dit Memorandum de „Verklaring van 1979” genoemd) en teneinde deze bepalingen te verduidelijken215.

De toepassing van maatregelen

1.

De Leden bevestigen hun verbintenis tot het zo spoedig mogelijk bekendmaken van tijdschema's voor de opheffing van ter bescherming van de betalingsbalans getroffen beperkende invoermaatregelen. Overeengekomen wordt dat dergelijke tijdschema's zo nodig kunnen worden gewijzigd om rekening te houden met veranderingen in de betalingsbalanssituatie. Telkens wanneer een tijdschema niet door een Lid bekend wordt gemaakt, moet dat Lid de redenen waarom zulks niet geschiedde, opgeven.

2.

De Leden bevestigen hun verbintenis tot het geven van de voorkeur aan die maatregelen die het handelsverkeer het minst verstoren. Dergelijke maatregelen (in dit Memorandum „op prijzen gebaseerde maatregelen” genoemd) omvatten aanvullende heffingen bij invoer, borgstellingsverplichtingen of andere soortgelijke handelsmaatregelen die van invloed zijn op de prijs van ingevoerde goederen. Er wordt overeengekomen dat ter bescherming van de betalingsbalans genomen op prijzen gebaseerde maatregelen, in afwijking van het bepaalde in artikel II, door een Lid kunnen worden toegepast bovenop de in de Lijst van dat Lid vermelde rechten. Voorts geeft dat Lid overeenkomstig de kennisgevingsprocedures van dit Memorandum duidelijk en afzonderlijk aan met welk bedrag de op prijzen gebaseerde maatregel het geconsolideerde recht overschrijdt.

3.

De Leden streven naar voorkoming van het opwerpen van nieuwe kwantitatieve beperkingen ter bescherming van de betalingsbalans, tenzij op prijzen gebaseerde maatregelen wegens een kritieke betalingsbalanssituatie een plotselinge verslechtering van het saldo van het goederen- en dienstenverkeer niet tot stilstand kunnen brengen. Voor de gevallen waarin een Lid kwantitatieve beperkingen toepast, geeft het de redenen op waarom op prijzen gebaseerde maatregelen geen passend instrument zijn om de betalingsbalanssituatie op te lossen. Een Lid dat kwantitatieve beperkingen blijft opleggen, brengt bij successievelijk overleg verslag uit over de voortgang geboekt met het aanmerkelijk verminderen van de gevolgen en het beperkend effect van die maatregelen. Overeengekomen wordt dat hetzelfde produkt niet kan worden onderworpen aan meer dan één soort ter bescherming van de betalingsbalans getroffen beperkende invoermaatregel.

4.

De Leden bevestigen dat ter bescherming van de betalingsbalans genomen beperkende invoermaatregelen slechts mogen worden toegepast om het algemene niveau van de invoer te regelen en niet meer mogen inhouden dan hetgeen in verband met de betalingsbalanssituatie noodzakelijk is. Ten einde bijkomende beschermende effecten tot een minimum te beperken, past een Lid de beperkingen op doorzichtige wijze toe. De autoriteiten van het importerende Lid motiveren de criteria op grond waarvan werd bepaald welke produkten aan beperkingen worden onderworpen op passende wijze. Zoals in lid 3 van artikel XII en lid 10 van artikel XVIII bepaald, kunnen de Leden ingeval van bepaalde essentiële produkten de toepassing van algemene aanvullende extra heffingen of andere ter bescherming van de betalingsbalans genomen maatregelen uitsluiten of beperken. Onder „essentiële produkten” worden verstaan produkten die beantwoorden aan fundamentele verbruiksbehoeften of een bijdrage leveren aan de inspanningen van het Lid ter verbetering van de betalingsbalanssituatie, zoals kapitaalgoederen of voor produktie benodigde inputs. Bij het beheer van kwantitatieve beperkingen maakt een Lid slechts gebruik van de toekenning van discretionaire vergunningen, wanneer zulks onvermijdelijk is en deze worden geleidelijk opgeheven. De gebruikte criteria ter vaststelling van toegestane invoerhoeveelheden of -waarden worden op passende wijze gemotiveerd.

Procedures voor overleg over de betalingsbalans

5.

De Commissie inzake beperkingen ten behoeve van de betalingsbalans (in dit Memorandum de „Commissie” genoemd) pleegt overleg om alle ter bescherming van de betalingsbalans genomen beperkende invoermaatregelen te onderzoeken. Alle Leden die zulks wensen, kunnen zitting nemen in de Commissie. De Commissie volgt de op 28 april 1970 goedgekeurde procedures voor overleg over betalingsbalansbeperkingen (BISD 18S/48-53, in dit Memorandum „volledige overlegprocedures” genoemd) met inachtneming van onderstaande bepalingen.

6.

Een Lid dat nieuwe beperkingen toepast of het algemene niveau van zijn bestaande beperkingen via aanzienlijke verscherping van de maatregelen verhoogt, pleegt binnen vier maanden na de invoering van die maatregelen overleg met de Commissie. Het Lid dat dergelijke maatregelen treft, kan krachtens lid 4, sub a. van artikel XII of lid 12, sub a. van artikel XVIII verzoeken om het plegen van overleg. Indien een dergelijk verzoek niet wordt ingediend, verzoekt de voorzitter van de Commissie het Lid om dergelijk overleg te plegen. Elementen die bij het overleg kunnen worden onderzocht, zijn ondermeer de invoering van nieuwe soorten beperkende maatregelen ter bescherming van de betalingsbalans of verhoging van het niveau van de beperkingen of uitbreiding van het toepassingsgebied van de door beperkingen getroffen produkten.

7.

Alle ter bescherming van de betalingsbalans toegepaste beperkingen worden krachtens lid 4, sub b. van artikel XII of lid 12, sub b. van artikel XVIII regelmatig in de Commissie onderzocht, met dien verstande dat de mogelijkheid bestaat om het regelmatig overleg, na ruggespraak met het tot het plegen van overleg opgeroepen Lid of overeenkomstig een specifieke onderzoeksprocedure die door de Algemene Raad kan worden aanbevolen, te wijzigen.

8.

Er kan overleg worden gepleegd volgens de op 19 december 1972 goedgekeurde vereenvoudigde procedures (BISD 20S/47-49, in dit Memorandum „vereenvoudigde overlegprocedures” genoemd) in het geval van Leden die minstontwikkelde landen zijn of in het geval van Leden die ontwikkelingslanden zijn welke liberalisatie-inspanningen verrichten overeenkomstig het bij eerder overleg aan de Commissie overgelegde schema. Er kan eveneens gebruik worden gemaakt van de vereenvoudigde overlegprocedures, wanneer de toetsing van het handelsbeleid van een Lid dat een ontwikkelingsland is voor hetzelfde kalenderjaar is gepland als het overleg. In dergelijke gevallen wordt het besluit of er gebruik moet worden gemaakt van de volledige overlegprocedures genomen op basis van de in punt 8 van de Verklaring van 1979 opgesomde factoren. Behalve in het geval van Leden die minstontwikkelde landen zijn, mag het overleg niet meer dan twee achtereenvolgende keren volgens de vereenvoudigde overlegprocedures plaatsvinden.

Kennisgeving en documenten

9.

Een Lid stelt de Algemene Raad in kennis van de invoering van ter bescherming van de betalingsbalans getroffen beperkende invoermaatregelen of iedere wijzing in de toepassing van dergelijke maatregelen alsmede van iedere wijziging in de tijdschema's voor de opheffing van dergelijke maatregelen zoals in lid 1 uiteengezet. De Algemene Raad wordt van belangrijke wijzigingen in kennis gesteld vóór of op zijn laatst 30 dagen ná hun afkondiging. Elke Lid legt jaarlijks aan het secretariaat een samenvattende kennisgeving over waarin alle wijzigingen in wetten, regelingen, beleidsverklaringen of berichten aan het publiek zijn vervat, zodat de Leden daarvan kennis kunnen nemen. De kennisgevingen omvatten voor zover mogelijk volledige informatie op het niveau van de tarieflijn over het soort toegepaste maatregelen, de voor hun beheer gehanteerde criteria, welke produkten hieronder vallen en welke de getroffen handelsstromen zijn.

10.

Op verzoek van een Lid kunnen de kennisgevingen door de Commissie worden onderzocht. Dergelijke onderzoeken zullen worden beperkt tot de verduidelijking van specifieke door een kennisgeving aan de orde gestelde punten of het bezien of overleg overeenkomstig lid 4, sub a. van artikel XII of lid 12, sub a. van artikel XVIII vereist is. Leden die redenen hebben om aan te nemen dat een beperkende invoermaatregel door een ander Lid getroffen, werd genomen ter bescherming van de betalingsbalans kunnen de Commissie daarop wijzen. De Voorzitter van de Commissie wint inlichtingen over de maatregel in die zij aan alle Leden doet toekomen. Onverminderd het recht van ieder lid van de Commissie om tijdens overleg om ter zake doende verduidelijkingen te vragen, kunnen van tevoren vragen aan het Lid dat tot het plegen van overleg wordt opgeroepen, worden overgelegd.

11.

Het Lid dat tot het plegen van overleg wordt opgeroepen, werkt een basisdocument voor het overleg uit dat naast alle andere relevant geachte informatie moet omvatten: a. een overzicht van de betalingsbalanssituatie en -vooruitzichten, inclusief een uiteenzetting van de interne en externe factoren die van invloed zijn op de betalingsbalanssituatie en de interne beleidsmaatregelen die werden genomen om het evenwicht grondig en duurzaam te herstellen; b. een volledige beschrijving van de ter bescherming van de betalingsbalans toegepaste beperkingen, hun wettelijke grondslag en de genomen maatregelen om bijkomende beschermende effecten te verminderen; c. de sedert het laatste overleg in het licht van de conclusies van de Commissie genomen maatregelen ter liberalisatie van de invoerbeperkingen; d. een plan voor de opheffing en geleidelijke versoepeling van de resterende beperkingen. Er kan eventueel worden verwezen naar de in andere kennisgevingen of verslagen aan de WTO verstrekte informatie. In het kader van de vereenvoudigde overlegprocedures legt het Lid dat tot het plegen van overleg wordt opgeroepen een schriftelijke verklaring over waarin essentiële informatie over de elementen van het basisdocument wordt verstrekt.

12.

Het secretariaat stelt met het oog op vergemakkelijking van het overleg in de Commissie een informatief document op waarin de verschillende aspecten van het plan voor overleg aan de orde komen. In het geval van Leden die ontwikkelingslanden zijn, omvat het document van het secretariaat relevante algemene en analytische gegevens over het effect van het externe handelsklimaat op de betalingsbalanssituatie en -vooruitzichten van het Lid dat tot het plegen van overleg wordt opgeroepen. Op verzoek van een Lid dat een ontwikkelingsland is, staan de technische bijstandsdiensten van het secretariaat het bij de opstelling van de documenten voor het overleg bij.

Conclusies van het betalingsbalansoverleg

13.

De Commisie brengt over haar overleg verslag uit aan de Algemene Raad. Wanneer gebruik werd gemaakt van de volledige overlegprocedures dienen in het verslag de conclusies van de Commissie ten aanzien van aangaande de verschillende elementen van het plan voor overleg alsmede de feiten en gronden waarop zij zijn gebaseerd te worden vermeld. De Commissie streeft ernaar in haar conclusies voorstellen op te nemen voor aanbevelingen ter bevordering van de tenuitvoerlegging van de artikelen XII en XVIII, deel B, de Verklaring van 1979 en het onderhavige Memorandum. In die gevallen waarin een tijdschema voor de opheffing van ter bescherming van de betalingsbalans genomen beperkende maatregelen werd overgelegd, kan de Algemene Raad aanbevelen dat een Lid bij het naleven van dat tijdschema wordt geacht te voldoen aan zijn verplichtingen uit hoofde van GATT 1994. Wanneer de Algemene Raad specifieke aanbevelingen heeft gedaan, worden de rechten en verplichtingen van Leden in het licht van die aanbevelingen beoordeeld. Bij het ontbreken van specifieke voorstellen voor aanbevelingen van de Algemene Raad moeten de verschillende in de Commissie naar voren gebrachte meningen in de conclusies van de Commissie worden opgenomen. Wanneer er gebruik werd gemaakt van de vereenvoudigde overlegprocedures dient het verslag een samenvatting van de voornaamste in de Commissie besproken onderwerpen en een besluit over de vraag of volledige overlegprocedures vereist zijn te omvatten.

Memorandum van Overeenstemming betreffende de interpretatie van artikel XXIV van de Algemene Overeenkomst inzake Tarieven en Handel 1994

De Leden,

Gelet op het bepaalde in artikel XXIV van GATT 1994;

Erkennende dat douane-unies en vrijhandelszones sedert de vaststelling van GATT 1947 sterk in aantal en belang zijn toegenomen en thans een groot deel van de wereldhandel voor hun rekening nemen;

Erkennende de bijdrage die door nauwere integratie van de economieën van de partijen bij dergelijke overeenkomsten aan de uitbreiding van de wereldhandel kan worden geleverd;

Voorts erkennende dat deze bijdrage wordt verhoogd, indien de afschaffing van rechten en andere handelsbeperkende regelingen tussen de samenstellende gebieden zich uitstrekt tot alle handel, en wordt verminderd, indien een belangrijke handelssector van deze afschaffing wordt uitgesloten;

Opnieuw bevestigende dat het doel van dergelijke overeenkomsten vergemakkelijking van de handel tussen de samenstellende gebieden moet zijn en niet het opwerpen van belemmeringen voor de handel van andere Leden met dergelijke gebieden; en dat de partijen bij dergelijke overeenkomsten bij de totstandbrenging of uitbreiding daarvan het toebrengen van schade aan de handel van andere Leden zoveel mogelijk dienen te voorkomen;

Eveneens overtuigd van de noodzaak van versterking van de doeltreffendheid van de rol van de Raad voor de handel in goederen bij de toetsing van krachtens artikel XXIV aangemelde overeenkomsten door verduidelijking van de criteria en procedures voor de beoordeling van nieuwe of uitgebreide overeenkomsten, en verbetering van de doorzichtigheid van alle in het kader van artikel XXIV gesloten overeenkomsten;

Erkennende de noodzaak van een gemeenschappelijke interpretatie van de verplichtingen van de Leden krachtens lid 12 van artikel XXIV;

Komen het volgende overeen:

1.

Douane-unies, vrijhandelszones en voorlopige overeenkomsten leidende tot de totstandbrenging van een douane-unie of vrijhandelszone moeten, om in overeenstemming met artikel XXIV te zijn, onder meer voldoen aan het bepaalde in de leden 5, 6, 7 en 8 van dat artikel.

Artikel XXIV, lid 5

2.

De evaluatie krachtens lid 5, sub a. van artikel XXIV van de vóór en na de totstandbrenging van een douane-unie geldende rechten en andere handelsregelingen wordt voor wat de rechten en heffingen betreft, gebaseerd op een globale beoordeling van gewogen gemiddelde tarieven en geïnde douanerechten. Deze beoordeling vindt plaats aan de hand van voor een voorgaande representatieve periode door de douane-unie per tarieflijn, met vermelding van de waarde en het volume en het WTO-land van oorsprong, te verstrekken invoerstatistieken. Het secretariaat berekent de gewogen gemiddelde tarieven en geïnde douanerechten volgens de methodologie die werd gebruikt bij de beoordeling van de tijdens de multilaterale handelsbesprekingen in het kader van de Uruguay-Ronde gedane tariefaanbiedingen. In dit verband zijn de rechten en heffingen waarmee rekening moet worden gehouden de toegepaste rechten. Erkend wordt dat voor de globale beoordeling van andere handelsregelingen die moeilijk zijn te kwantificeren en bij elkaar op te tellen een onderzoek van de individuele maatregelen, regelingen, betrokken produkten en handelsstromen vereist kan zijn.

3.

De in lid 5, sub c. van artikel XXIV genoemde „redelijke termijn” mag slechts in uitzonderlijke gevallen de tien jaar overschrijden. In de gevallen waarin de Leden die Partij bij een voorlopige overeenkomst zijn, menen dat 10 jaar onvoldoende is, dienen zij omstandig aan de Raad voor de handel in goederen uiteen te zetten waarom een langere periode noodzakelijk is.

Artikel XXIV, lid 6

4.

In lid 6 van artikel XXIV wordt de te volgen procedure vastgesteld wanneer een Lid dat een douane-unie tot stand brengt, voornemens is een geconsolideerd recht te verhogen. In dit verband bevestigen de Leden opnieuw dat de in artikel XXVIII uiteengezette procedure, zoals die wordt gepreciseerd in de op 10 november 1980 goedgekeurde richtsnoeren (BISD 27S/26-28) en in het Memorandum van Overeenstemming betreffende de interpretatie van artikel XXVIII van GATT 1994, moet worden aangevangen voordat er bij de totstandbrenging van een douane-unie of een voorlopige overeenkomst leidende tot de totstandbrenging van een douane-unie tariefconcessies worden gewijzigd of ingetrokken.

5.

Deze onderhandelingen zullen te goeder trouw worden aangeknoopt met het oog op het treffen van een over en weer bevredigende compenserende regeling. Bij deze onderhandelingen wordt, zoals lid 6 van artikel XXIV vereist, naar behoren rekening gehouden met de door andere samenstellende delen van de douane-unie bij haar totstandbrenging uitgevoerde verlagingen van rechten op dezelfde tarieflijn. Mochten dergelijke verlagingen onvoldoende zijn om te zorgen voor de noodzakelijke compenserende correctie dan biedt de douane-unie compensatie die de vorm van verlagingen van rechten op andere tarieflijnen kan aannemen. Een dergelijk aanbod wordt in overweging genomen door de Leden die onderhandelingsrechten hebben voor de consolidatie die wordt gewijzigd of ingetrokken. Mocht de compenserende correctie nog steeds onaanvaardbaar zijn dan dienen de onderhandelingen te worden voortgezet. Indien er ondanks deze inspanningen niet binnen een redelijke termijn te rekenen vanaf het begin van de onderhandelingen overeenstemming kan worden bereikt bij de onderhandelingen over compensaties in het kader van artikel XXVIII, zoals gepreciseerd in het Memorandum van Overeenstemming betreffende de interpretatie van artikel XXVIII van GATT '94, staat het de douane-unie niettemin vrij de concessies te wijzigen of in te trekken; de hierdoor getroffen Leden zijn dan overeenkomstig artikel XXVIII vrij om nagenoeg gelijkwaardige concessies in te trekken.

6.

GATT 1994 verplicht Leden die ingevolge de totstandbrenging van een douane-unie of een voorlopige overeenkomst leidende tot de totstandbrenging van een douane-unie een verlaging van rechten genieten niet tot het verstrekken van compensaties aan de samenstellende delen van de douane-unie.

Onderzoek van douane-unies en vrijhandelszones

7.

Alle krachtens lid 7, sub a. van artikel XXIV gedane mededelingen worden door een werkgroep onderzocht in het licht van de relevante bepalingen van GATT 1994 en lid 1 van dit Memorandum. De werkgroep legt aan de Raad voor de handel in goederen een rapport over haar bevindingen over. De Raad voor de handel in goederen kan de aanbevelingen aan de Leden doen die hij passend acht.

8.

Ten aanzien van voorlopige overeenkomsten kan de werkgroep in haar rapport passende aanbevelingen doen aangaande de voorgestelde termijn en de maatregelen die nodig zijn om de douane-unie of vrijhandelszone tot stand te brengen. Zij kan, zo nodig, de overeenkomst verder onderzoeken.

9.

De Leden die partij bij een voorlopige overeenkomst zijn, stellen de Raad voor de handel in goederen in kennis van substantiële wijzigingen in het in die overeenkomst opgenomen plan en tijdschema; de Raad onderzoekt de wijzigingen desgewenst.

10.

Indien een voorlopige overeenkomst, waarvan krachtens lid 7, sub a., van artikel XXIV mededeling werd gedaan, in strijd met lid 5, sub c., van artikel XXIV, geen plan en tijdschema omvat, doet de werkgroep in haar rapport aanbevelingen voor een dergelijk plan en tijdschema. Partijen handhaven een dergelijke overeenkomst niet of doen haar niet in werking treden, indien zij niet bereid zijn haar in overeenstemming met deze aanbevelingen te wijzigen. Er wordt voorzien in onderzoek van de tenuitvoerlegging van de aanbevelingen.

11.

Douane-unies en samenstellende delen van vrijhandelszones brengen regelmatig verslag over de werking van de relevante overeenkomst uit aan de Raad voor de handel in goederen, zoals voorzien door de Overeenkomstsluitende Partijen bij GATT 1947 in hun instructie aan de Raad van GATT 1947 betreffende rapporten over regionale overeenkomsten (BISD 18S/38). Alle belangrijke veranderingen en/of ontwikkelingen in de overeenkomsten moeten, zodra zij zich voordoen, worden gemeld.

Geschillenbeslechting

12.

Er kan een beroep worden gedaan op de bepalingen van artikel XXII en XXIII van GATT 1994, zoals gepreciseerd en toegepast in het Memorandum van Overeenstemming betreffende de beslechting van geschillen, voor wat betreft vraagstukken voortvloeiende uit de toepassing van de bepalingen van artikel XXIV betreffende douane-unies, vrijhandelszones of voorlopige overeenkomsten leidende tot de totstandbrenging van een douane-unie of vrijhandelszone.

Artikel XXIV, lid 12

13.

Elk Lid is krachtens GATT 1994 volledig verantwoordelijk voor de naleving van alle bepalingen van GATT 1994 en neemt alle redelijke binnen zijn bereik liggende maatregelen teneinde een dergelijke naleving door de regionale en plaatselijke overheden en administraties binnen zijn grondgebied te verzekeren.

14.

Er kan een beroep worden gedaan op de bepalingen van artikel XXII en XXIII van GATT 1994, zoals gepreciseerd en tenuitvoergelegd in het Memorandum van Overeenstemming betreffende de beslechting van geschillen, voor wat betreft door regionale of plaatselijke overheden en administraties binnen het grondgebied van een Lid genomen maatregelen die afbreuk doen aan de naleving van GATT 1994. Wanneer het Orgaan voor geschillenbeslechting heeft beslist dat een bepaling van GATT 1994 niet werd nagekomen, neemt het verantwoordelijke Lid alle redelijke binnen zijn bereik liggende maatregelen om de naleving van die bepaling te verzekeren. De bepalingen betreffende compensatie en schorsing van concessies of andere verplichtingen zijn van toepassing in de gevallen waarin het niet mogelijk was zich van deze naleving te verzekeren.

15.

Elk Lid zegt toe een gewillig oor te zullen lenen aan door een ander Lid geuite protesten betreffende binnen het grondgebied van eerstgenoemde genomen maatregelen die afbreuk doen aan de werking van GATT 1994 en passende mogelijkheden tot overleg over dergelijke protesten te zullen bieden.

Memorandum van Overeenstemming betreffende ontheffingen van verplichtingen krachtens de Algemene Overeenkomst inzake Tarieven en Handel 1994

De Leden komen het volgende overeen:

1.

Een verzoek om een ontheffing of verlenging van een bestaande ontheffing geeft een beschrijving van de maatregelen die het Lid voornemens is te nemen, de specifieke beleidsdoelstellingen die het Lid nastreeft en de gronden die het Lid verhinderen zijn beleidsdoelstellingen te bereiken via maatregelen die verenigbaar zijn met zijn verplichtingen uit hoofde van GATT 1994.

2.

Iedere op de datum van inwerkingtreding van de WTO-Overeenkomst van kracht zijnde ontheffing loopt teneinde, tenzij zij overeenkomstig voornoemde procedures en de procedures van artikel IX van de WTO-Overeenkomst wordt verlengd, op haar vervaldatum of twee jaar na de datum van inwerkingtreding van de WTO-Overeenkomst, als laatstgenoemde datum eerder valt.

3.

Elk Lid dat meent dat een hem krachtens GATT 1994 toekomend voordeel wordt teniet gedaan of uitgehold als gevolg van:

• a. het in gebreke blijven van het Lid waaraan een ontheffing werd toegekend de daaraan verbonden voorwaarden in acht te nemen, of

• b. de toepassing van een maatregel die in overeenstemming met de voorwaarden van de ontheffing is,

kan zich beroepen op de bepalingen van artikel XXIII van GATT 1994, zoals die zijn gepreciseerd en ten uitvoer gelegd in het Memorandum van Overeenstemming inzake de beslechting van geschillen.

Memorandum van Overeenstemming betreffende de interpretatie van artikel XXVIII van de Algemene Overeenkomst inzake Tarieven en Handel 1994

De Leden komen het volgende overeen:

1.

Ten behoeve van wijziging of intrekking van een concessie wordt het Lid met naar verhouding de hoogste onder deze concessie vallende uitvoer (dat wil zeggen uitvoer van het produkt naar de markt van het Lid dat de concessie wijzigt of intrekt) ten opzichte van zijn totale uitvoer geacht de voornaamste leverancier te zijn, indien het niet reeds beschikt over een oorspronkelijk onderhandelingsrecht of een belang als voornaamste leverancier, zoals bedoeld in lid 1 van artikel XXVIII. Er wordt evenwel overeengekomen dat dit lid vijf jaar na de datum van inwerkingtreding van de WTO-Overeenkomst door de Raad voor de handel in goederen opnieuw zal worden bezien teneinde te besluiten of via dit criterium op bevredigende wijze een herschikking van onderhandelingsrechten ten gunste van kleine en middelgrote exporterende Leden kon worden bewerkstelligd. Indien dit niet het geval is, zullen eventuele verbeteringen worden overwogen, inclusief de overgang, in het licht van de beschikbaarheid van passende gegevens, op een criterium dat is gebaseerd op de verhouding tussen de onder de concessie vallende uitvoer en de uitvoer naar alle markten van het produkt in kwestie.

2.

Wanneer een Lid meent een voornaamste leverancier in de zin van lid 1 te zijn, moet het zulks schriftelijk, vergezeld van bewijsmateriaal, mededelen aan het Lid dat voornemens is een concessie te wijzigen of in te trekken en tezelfdertijd het secretariaat hiervan op de hoogte stellen. Lid 4 van de op 10 november 1980 goedgekeurde „Procedures voor onderhandelingen krachtens artikel XXVIII” (BISD 27S/26-28) is in deze gevallen van toepassing.

3.

Bij de vaststelling welke Leden voornaamste leveranciers (hetzij zoals bedoeld in vorenstaand lid 1, hetzij zoals bedoeld in lid 1 van artikel XXVIII) zijn of een substantieel belang hebben, wordt slechts rekening gehouden met de handel in het onder de concessie vallende produkt die op basis van de meestbegunstigingsclausule plaatsvond. Er wordt evenwel ook rekening gehouden met de handel in bedoeld produkt waarop niet contractuele preferenties van toepassing zijn, indien die handel ten tijde van de onderhandelingen over de wijziging of intrekking van de concessie niet langer voor een dergelijke preferentiële behandeling in aanmerking komt, en dus handel wordt waarop de meestbegunstigingsclausule van toepassing is, of door de afronding van die onderhandelingen in aanmerking zal komen.

4.

Wanneer een tariefconcessie voor een nieuw produkt (dat wil zeggen een produkt waarvoor geen zich over drie jaar uitstrekkende handelsstatistieken voorhanden zijn) wordt gewijzigd of ingetrokken, wordt het Lid dat oorspronkelijke onderhandelingsrechten heeft voor de tarieflijn waaronder het produkt is of voorheen was ingedeeld, geacht een oorspronkelijke onderhandelingsrecht voor de concessie in kwestie te hebben. Bij de vaststelling wie de voornaamste leverancier is en een substantieel belang heeft en de berekening van compensatie wordt onder meer rekening gehouden met de produktiecapaciteit voor en investeringen in bedoeld produkt in het exporterende Lid en de geraamde stijging van de uitvoer alsmede met prognoses van de vraag naar het produkt in het importerende Lid. Voor de toepassing van dit lid wordt onder „nieuw produkt” mede verstaan een tariefpost die het gevolg is van een afscheiding van een bestaande tarieflijn.

5.

Wanneer een Lid meent voornaamste leverancier te zijn of een substantieel belang te hebben in de zin van lid 4, dient het zulks schriftelijk, vergezeld van bewijsmateriaal, mede te delen aan het Lid dat voornemens is een concessie te wijzigen of in te trekken en tezelfdertijd het secretariaat van een en ander in kennis te stellen. Lid 4 van voornoemde „Procedures voor onderhandelingen krachtens artikel XXVIII” is in deze gevallen van toepassing.

6.

Wanneer een onbeperkte tariefconcessie wordt vervangen door een tariefcontingent moet het totaal van de verstrekte compensatie het totaal van de daadwerkelijk door de wijziging van de concessie getroffen handel overschrijden. De grondslag voor de berekening van de compensatie moet het bedrag zijn waarmee toekomstige handelsvooruitzichten het niveau van het contingent overschrijden. Overeengekomen wordt dat de berekening van de toekomstige handelsvooruitzichten wordt gebaseerd op:

• a. de gemiddelde jaarlijkse handel in de meest recente representatieve periode van drie jaar, verhoogd met het gemiddelde jaarlijkse groeipercentage van de invoer in diezelfde periode dan wel met 10%, indien dat een hogere uitkomst oplevert; of

• b. de handel in het meest recente jaar verhoogd met 10%, indien deze uitkomst hoger uitvalt dan die sub a.

  In geen geval is de aansprakelijkheid van een Lid voor compensatie groter dan de compensatie die het gevolg zou zijn van volledige intrekking van de concessie.

7.

Aan ieder Lid dat een belang van voornaamste leverancier , zoals bedoeld in vorenstaand lid 1 of in lid 1 van artikel XXVIII, heeft in een concessie die wordt gewijzigd of ingetrokken wordt een oorspronkelijk onderhandelingsrecht in de compenserende concessies toegekend, tenzij door de betrokken Leden een andere vorm van compensatie wordt overeengekomen.

Protocol van Marrakesh bij de Algemene Overeenkomst inzake Tarieven en Handel 1994

De Leden,

Hebbende overeenkomstig de Ministeriële Verklaring betreffende de Uruguay-Ronde onderhandelingen gevoerd in het kader van GATT 1947,

Komen het volgende overeen:

1.

De aan dit Protocol gehechte lijst betreffende een Lid wordt een lijst van GATT 1994 betreffende dat Lid op de dag waarop de WTO-Overeenkomst voor dat Lid van kracht wordt. Alle overeenkomstig het Ministeriële besluit inzake maatregelen ten behoeve van minstontwikkelde landen ingediende lijsten worden geacht aan dit Protocol te worden gehecht.

2.

De door elk Lid toegezegde tariefverlagingen worden in vijf gelijke tariefverlagingsrondes uitgevoerd, behalve indien in een lijst van een Lid anders wordt bepaald. De eerste verlaging wordt op de datum van inwerkingtreding van de WTO-Overeenkomst van kracht en elke volgende verlaging op 1 januari van elk van de daarop volgende jaren; het definitieve tarief wordt uiterlijk op de datum die vier jaar na de datum van inwerkingtreding van de WTO-Overeenkomst valt van kracht, behalve indien in de lijst van dat Lid anders wordt bepaald. Tenzij in zijn lijst anders wordt bepaald, doet een Lid dat de WTO-Overeenkomst na haar inwerkingtreding aanvaardt, op de datum waarop die overeenkomst voor dat Lid van kracht wordt, alle tariefverlagingen die reeds hebben plaatsgevonden, ingaan tezamen met de verlagingen die het Lid krachtens de voorgaande zin verplicht was op 1 januari van het volgende jaar te doen ingaan en doet het alle resterende tariefverlagingen ingaan volgens het in de vorige zin gegeven tijdschema. Het verlaagde tarief dient in elke etappe tot de eerste decimaal te worden afgerond. Voor landbouwprodukten als bedoeld in artikel 2 van de Overeenkomst inzake de landbouw vinden de verlagingen plaats zoals in de desbetreffende delen van de lijsten aangegeven.

3.

De tenuitvoerlegging van de concessies en verbintenissen vervat in de aan dit Protocol gehechte lijsten wordt, desgewenst, onderworpen aan multilateraal onderzoek door de Leden. Zulks laat de rechten en verplichtingen van Leden krachtens overeenkomsten in bijlage 1A van de WTO-Overeenkomst onverlet.

4.

Nadat de aan dit Protocol gehechte lijst betreffende een Lid overeenkomstig het bepaalde in lid 1 een lijst bij GATT 1994 is geworden, is een dergelijk Lid vrij om de concessie in die lijst ten opzichte van een produkt waarvan de voornaamste leverancier een andere deelnemer van de Uruguay-Ronde is wiens lijst nog geen lijst bij GATT 1994 is geworden, te allen tijde geheel of gedeeltelijk op te schorten of in te trekken. Dit kan evenwel slechts worden gedaan nadat de Raad voor de handel in goederen schriftelijk op de hoogte is gesteld van een dergelijke opschorting of intrekking van een concessie en nadat, desgevraagd, overleg is gepleegd met elk Lid wiens lijst een lijst bij GATT 1994 is geworden en dat een substantieel belang bij het betrokken produkt heeft. Alle aldus uitgevoerde opschortingen of intrekkingen vervallen vanaf de dag waarop de lijst van het Lid dat voornaamste leverancier is een lijst bij GATT 1994 wordt.

5.

• a Onverminderd het bepaalde in lid 2 van artikel 4 van de Overeenkomst inzake de landbouw is met het oog op de verwijzing naar de datum van GATT 1994 in lid 1, sub b. en sub c., van artikel II van die overeenkomst, de geldende datum voor elk produkt dat het voorwerp vormt van een concessie waarin een aan dit Protocol gehechte lijst van concessies voorziet, de datum van dit Protocol.

• b Met het oog op de verwijzing naar de datum van GATT 1994 in lid 6, sub a. van artikel II van die overeenkomst, is de geldende datum voor een aan dit Protocol gehechte lijst van concessies de datum van dit Protocol.

6.

In gevallen van wijziging of intrekking van concessies met betrekking tot de non-tarifaire maatregelen, vervat in deel III van de lijsten, zijn de bepalingen van artikel XXVIII van GATT 1994 en de op 10 november 1980 (BISD 27S/26-28) goedgekeurde „Procedures voor onderhandelingen overeenkomstig artikel XXVIII „ van toepassing. Zulks laat de rechten en verplichtingen van Leden uit hoofde van GATT 1994 onverlet.

7.

Telkens wanneer een aan dit Protocol gehechte lijst voor een produkt resulteert in een minder gunstige behandeling dan voor dat produkt was voorzien in de lijsten van GATT 1947 vóór de inwerkingtreding van de WTO-Overeenkomst, wordt het Lid waarop de lijst betrekking heeft, geacht dezelfde passende stappen te hebben genomen als die welke nodig zouden zijn in het kader van de relevante bepalingen van artikel XXVIII van GATT 1947 of 1994. De bepalingen van dit Lid gelden slechts voor Egypte, Peru, Zuid-Afrika en Uruguay.

8.

De aan dit Protocol gehechte lijsten zijn authentiek in de Engelse, de Franse of de Spaanse taal naar gelang in elke lijst wordt aangegeven.

9.

De datum van dit Protocol is 15 april 1994.

Overeenkomst inzake de landbouw

De Leden,

Besloten hebbende de grondslag te leggen voor een hervorming van de handel in landbouwprodukten volgens de in de Verklaring van Punta del Este vermelde onderhandelingsdoelstellingen;

Eraan herinnerend dat bij de Tussentijdse Evaluatie (Mid-Term Review-MTR) van de Uruguay-Ronde een billijk en marktgeoriënteerd handelssysteem voor landbouwprodukten als doelstelling voor de lange termijn is overeengekomen en dat via verbintenissen ten aanzien van ondersteuning en bescherming, alsmede door vaststelling van aangescherpte en efficiëntere GATT-regels en -disciplines een hervormingsproces op gang moet worden gebracht;

Er voorts aan herinnerend dat bovengenoemde lange–termijndoelstelling ertoe moet leiden dat gedurende een overeengekomen periode de ondersteuning en bescherming van de landbouw aanzienlijk en progressief wordt verlaagd, zodat restricties en distorsies op de wereldmarkten voor landbouwprodukten gecorrigeerd en voorkomen worden;

Vastbesloten om te komen tot specifieke verbintenissen ten aanzien van markttoegang, interne steun en concurrentie op exportgebied, alsmede tot een overeenkomst inzake sanitaire en fytosanitaire maatregelen;

Overeengekomen zijnde dat de Leden die ontwikkelde landen zijn bij de uitvoering van hun verbintenissen inzake markttoegang ten volle rekening zullen houden met de bijzondere behoeften en omstandigheden van Leden die ontwikkelingslanden zijn, door grotere verbeteringen in de mogelijkheden en voorwaarden voor markttoegang voor landbouwprodukten die van bijzonder belang zijn voor laatstgenoemde Leden, waaronder – zoals overeengekomen tijdens de MTR – een zo groot mogelijke vrijmaking van de handel in tropische landbouwprodukten, en ook voor produkten die van bijzonder belang zijn in het kader van overschakeling op de teelt van andere gewassen dan illegale gewassen voor de produktie van drugs;

Erop wijzende dat de verbintenissen in het kader van het hervormingsprogramma evenwichtig over alle Leden gespreid dienen te worden, rekening houdende met andere doelstellingen dan die op handelsgebied, zoals de continuïteit in de voedselvoorziening en de noodzaak tot bescherming van het milieu, en met de afspraak dat een bijzondere en afwijkende behandeling voor de ontwikkelingslanden een integrerend deel is van de onderhandelingen, alsmede met de mogelijke negatieve effecten van uitvoering van het hervormingsprogramma op de minstontwikkelde landen en op de landen die netto-importeur van voedsel zijn,

Komen het volgende overeen:

DEEL I

Artikel 1. Definities

In deze Overeenkomst en tenzij uit de context anders blijkt,

• a. wordt onder „Geaggregeerde Steun” (Aggregate Measurement of Support) en „AMS” verstaan, de in geld uitgedrukte steun die per jaar voor een landbouwprodukt is verleend aan de producenten van het referentielandbouwprodukt en de niet-produktgebonden steun aan landbouwers in het algemeen, behalve de steun in het kader van programma's die op grond van Bijlage 2 bij deze 0vereenkomst zijn vrijgesteld van de steunverlagingsverbintenis, zijnde

  • i. wat betreft de basisperiode, de steun die is gespecificeerd in de relevante tabellen van de documentatie die via verwijzing daarnaar zijn opgenomen in Deel IV van de Lijst van een Lid, en

  • ii. wat betreft een jaar van de uitvoeringsperiode en van de periode daarna, de steun die is berekend overeenkomstig de bepalingen van Bijlage 3 bij deze overeenkomst daarbij rekening houdende met de gegevens en de methodes die zijn gebruikt voor de tabellen in de documentatie die via verwijzing daarnaar zijn opgenomen in Deel IV van de Lijst van een Lid;

• b. wordt wat betreft de verbintenissen inzake interne steun onder „referentielandbouwprodukt” verstaan, het produkt dat zo kort mogelijk volgt op het produkt bij eerste verkoop en dat is gespecificeerd in de Lijst van een Lid en in de bijbehorende documentatie;

• c. wordt onder „begrotingsuitgaven” ook verstaan, de gederfde inkomsten;

• d. wordt onder „Equivalente Steun” (Equivalent Measurement of Support) verstaan, de in geld uitgedrukte steun die per jaar aan producenten van een referentielandbouwprodukt is verleend via een of meer maatregelen, maar waarvan de omvang niet kan worden berekend overeenkomstig de AMS-methode, behalve de steun in het kader van programma's die op grond van Bijlage 2 bij deze Overeenkomst zijn vrijgesteld van de steunverlagingsverbintenis, zijnde:

  • i. wat betreft de steun voor de basisperiode, de steun die is gespecificeerd in de relevante tabellen van de documentatie die via verwijzing zijn opgenomen in Deel IV van de Lijst van een Lid, en

  • ii. wat betreft de steun in een jaar van de uitvoeringsperiode en van de periode daarna, de steun die is berekend overeenkomstig de bepalingen van Bijlage 4 bij deze Overeenkomst daarbij rekening houdende met de gegevens en de methodes die zijn gebruikt voor de tabellen in de documentatie die via verwijzing zijn opgenomen in Deel IV van de Lijst van een Lid;

• e. wordt onder „uitvoersubsidies” verstaan, subsidies die afhankelijk zijn van uitvoer, waaronder de uitvoersubsidies die zijn opgesomd in artikel 9 van deze Overeenkomst;

• f. wordt onder „uitvoeringsperiode” verstaan, een periode van zes jaar ingaande in 1995, behalve voor artikel 13 waarvoor het gaat om een periode van negen jaar ingaande in 1995;

• g. wordt onder „concessies inzake markttoegang” verstaan, alle verbintenissen inzake markttoegang die zijn aangegaan in het kader van deze Overeenkomst”;

• h. wordt onder „Totale Geaggregeerde Steun” (Total Aggregate Measurement of Support”) en „Totale AMS” verstaan, het totaal van alle interne steun aan landbouwers, zijnde de som van alle AMS voor referentielandbouwprodukten, alle niet-produktgebonden AMS, alsmede alle Equivalente Steun voor landbouwprodukten, welke som:

  • i. zowel wat betreft de steun die is verleend in de basisperiode (d.w.z. het „Basisbedrag van de Totale AMS” – „Base Total AMS”), als het toegestane maximum per jaar van de uitvoeringsperiode en van de periode daarna (d.w.z. het Geconsolideerde Jaar- en Eindniveau van de Verbintenissen Annnual and Final Bound Commitment Levels) is gespecificeerd in Deel IV van de Lijst van een Lid, en

  • ii. wat betreft de steun die feitelijk is verleend in een jaar van de uitvoeringsperiode en van de periode daarna (d.w.z. de „Actuele Totale AMS” – „Current Total AMS”), is berekend overeenkomstig de bepalingen van deze Overeenkomst, waaronder artikel 6, en de gegevens en methodes die zijn gebruikt voor de tabellen in de documentatie die via verwijzing daarnaar zijn opgenomen in Deel IV van de Lijst van een Lid;

• i. wordt voor f) en voor de specifieke verbintenissen van een lid onder „jaar” verstaan, het kalenderjaar, begrotingsjaar of verkoopseizoen dat is gespecificeerd in de Lijst van het betrokken Lid.

Artikel 2. Produkten

Deze Overeenkomst is van toepassing op de produkten bedoeld in de lijst die is opgenomen in Bijlage 1 bij deze Overeenkomst, hierna „landbouwprodukten” genoemd.

DEEL II

Artikel 3. Integratie van concessies en verbintenissen

• 1 De in Deel IV van de Lijst van een Lid vermelde verbintenissen inzake interne steun en uitvoersubsidies zijn verbintenissen tot beperking van de subsidiëring en zijn een integrerend deel van de GATT 1994.

• 2 Onverminderd artikel 6 verleent een Lid de interne producenten geen steun boven de niveaus waartoe hij zich heeft verbonden en die zijn gespecificeerd in Sectie I van Deel IV van zijn Lijst.

• 3 Onverminderd artikel 9, lid 2, b., en lid 4, geeft een Lid voor de landbouwprodukten of groepen produkten die zijn gespecificeerd in Sectie II van Deel IV van zijn Lijst geen uitvoersubsidies als vermeld in artikel 9, lid 1, boven de daarin gespecificeerde verbintenissen inzake begrotingsuitgaven en hoeveelheden, en geeft hij dergelijke subsidies ook niet voor landbouwprodukten die niet zijn gespecificeerd in die Sectie.

DEEL III

Artikel 4. Markttoegang

• 1 De in de Lijsten opgenomen concessies inzake markttoegang betreffen consolidaties en verlagingen van tarieven, en andere daarin gespecificeerde verbintenissen inzake markttoegang.

• 2 De Leden handhaven geen, nemen geen en nemen evenmin opnieuw maatregelen van het type dat omgezet moet worden in gewone douanerechten216, tenzij overeenkomstig het bepaalde in artikel 5 en in Bijlage 5.

Artikel 5. Bijzondere vrijwaringsclausule

• 1 Niettegenstaande artikel II, lid 1, b., van de GATT 1994 mag ieder Lid voor de invoer van een landbouwprodukt waarvoor de in artikel 4, lid 2, van deze Overeenkomst bedoelde maatregelen zijn omgezet in een gewoon douanerecht en dat in zijn Lijst met de afkorting „SSG” (Special Safeguard) is aangeduid als behorend tot een concessie waarvoor een beroep mag worden gedaan op het bepaalde in dit artikel, de bepalingen van lid 4 en lid 5 toepassen, als:

  • a. de hoeveelheid van dat produkt die in de loop van een jaar wordt ingevoerd in het douanegebied van het Lid dat de concessie verleent, een reactieniveau overschrijdt dat zich tot de geldende markttoegang verhoudt zoals is aangegeven in lid 4 of, maar niet gelijktijdig,

  • b. de prijs waartegen dat produkt in het douanegebied van het Lid dat de concessie verleent, kan worden ingevoerd en die is bepaald aan de hand van de c.i.f.-prijs bij invoer van de betrokken partij en is uitgedrukt in de nationale valuta van dat Lid, daalt onder een reactieprijs die gelijk is aan de gemiddelde referentieprijs217 voor het betrokken produkt over de periode 1986 tot en met 1988.

• 2 Invoer in het kader van vigerende markttoegang en van verbintenissen inzake minimummarkttoegang die een onderdeel zijn van een concessie als bedoeld in lid 1 wordt meegerekend voor het bepalen van de ingevoerde hoeveelheid waarbij een beroep kan worden gedaan op de bepalingen van lid 1, a., en lid 4, maar op die invoer mag geen aanvullend douanerecht worden toegepast noch op grond van lid 1, a., en lid 4, noch op grond van lid 1, b., en lid 5.

• 3 Leveranties van het betrokken produkt die onderweg waren op grond van een contract dat is afgesloten voordat het aanvullende recht op grond van lid 1, a., en lid 4 is ingevoerd, worden vrijgesteld van dat recht, met dien verstande dat die leveranties met het oog op toepassing van de bepalingen van lid 1, a., in het volgende jaar mogen worden gerekend tot de invoer van het betrokken produkt in dat jaar.

• 4 Aanvullende douanerechten die worden ingevoerd op grond van lid 1, a., mogen slechts worden toegepast tot het einde van het jaar waarin zij zijn ingevoerd en mogen niet hoger zijn dan een derde van het gewone douanerecht in het jaar waarin de maatregel wordt genomen. Het reactieniveau wordt vastgesteld volgens de hierna vermelde formule waarbij wordt uitgegaan van de markttoegang, d.w.z. de invoer als percentage van het betrokken interne verbruik218 in de laatste drie jaren waarvoor gegevens beschikbaar zijn en waarbij in de laatste drie jaren waarvoor gegevens beschikbaar zijn en waarbij

  • a. als de markttoegang voor een produkt niet groter is geweest dan 10%, het basisreactieniveau 125% bedraagt;

  • b. als de markttoegang voor een produkt groter is geweest dan 10%, maar niet groter dan 30%, het basisreactieniveau 110% bedraagt;

  • c. als de markttoegang voor een produkt groter is geweest dan 30%, het basisreactieniveau 105% bedraagt.

  Het aanvullende douanerecht mag in alle geval worden ingevoerd in ieder jaar waarin de hoeveelheid van het betrokken produkt die wordt ingevoerd in het douanegebied van het Lid dat de concessie verleent, groter is dan de som van het bovengenoemde basisreactieniveau vermenigvuldigd met de gemiddeld ingevoerde hoeveelheid in de laatste drie jaren waarvoor gegevens beschikbaar zijn (x) en de absolute verandering in het interne verbruik van het betrokken produkt in het meest recente jaar waarvoor gegevens beschikbaar zijn ten opzichte van het daaraan voorafgaande jaar (y), op voorwaarde dat het reactieniveau niet kleiner is dan 105% van de gemiddelde invoer in (x).

• 5 Het aanvullende douanerecht op grond van lid 1, b., wordt vastgesteld volgens de onderstaande formule:

  • a. als het verschil tussen de in de nationale valuta uitgedrukte c.i.f.-prijs bij invoer van de partij (hierna de „invoerprijs” genoemd) en de in datzelfde lid 1, b., gedefinieerde reactieprijs niet groter is dan 10% van de reactieprijs, wordt geen aanvullend douanerecht toegepast;

  • b. als het verschil tussen de invoerprijs en de reactieprijs (hierna het „verschil” genoemd) groter is dan 10%, maar niet groter dan 40% van de reactieprijs, bedraagt het aanvullende douanerecht 30% van het verschil boven 10%;

  • c. als het verschil groter is dan 40%, maar niet groter dan 60% van de reactieprijs, bedraagt het aanvullende douanerecht 50% van het verschil boven 40%, plus het aanvullende douanerecht op grond van het bepaalde onder b.;

  • d. als het verschil groter is dan 60%, maar niet groter dan 75%, bedraagt het aanvullende douanerecht 70% van het verschil boven 60% van de reactieprijs, plus de aanvullende douanerechten op grond van het bepaalde onder b. en c.;

  • e. als het verschil groter is dan 75% van de reactieprijs, bedraagt het aanvullende douanerecht 90% van het verschil boven 75% van de reactieprijs, plus de aanvullende douanerechten op grond van het bepaalde onder b., c. en d..

• 6 Voor bederfelijke produkten en seizoenprodukten worden de hierboven vastgestelde bepalingen zo toegepast dat rekening wordt gehouden met de specifieke kenmerken van deze produkten. Met name mogen voor de toepassing van het bepaalde in lid 1, a., en lid 4 kortere periodes worden gebruikt, namelijk deze periodes van de basisperiode en mogen voor de toepassing van het bepaalde in lid 1, b., verschillende referentieprijzen voor verschillende periodes worden gehanteerd.

• 7 De vrijwaringsmaatregelen worden verifieerbaar toegepast. Leden die maatregelen nemen op grond van lid 1, a., zenden de Landbouwcommissie onder opgave van de relevante gegevens zo vroeg mogelijk en in ieder geval binnen tien dagen na de invoering ervan een schriftelijke kennisgeving. In gevallen waarin veranderingen in de omvang van het verbruik moeten worden uitgesplitst over verschillende tariefposten waarvoor maatregelen worden genomen op grond van lid 4, moeten de gegevens en methodes met betrekking tot de uitsplitsing van deze veranderingen worden verstrekt. Leden die maatregelen nemen op grond van lid 4 geven belanghebbende Leden de mogelijkheid om met hen te overleggen over de wijze van toepassing van die maatregelen. Leden die maatregelen nemen op grond van lid 1, b., zenden de Landbouwcommissie onder opgave van de relevante gegevens een schriftelijke kennisgeving binnen tien dagen na de invoering van de eerste maatregel of, wat bederfelijke produkten en seizoenprodukten betreft, van de eerste maatregel in een bepaalde periode. De Leden verbinden zich ertoe om, voor zover mogelijk, de bepalingen van lid 1, b., niet toe te passen bij afnemende invoer van de betrokken produkten. In beide gevallen geven Leden die dergelijke maatregelen nemen belanghebbende Leden de mogelijkheid om met hen te overleggen over de wijze van toepassing van die maatregelen.

• 8 De Leden verbinden zich ertoe om, wanneer maatregelen worden genomen op grond van de leden 1 tot en met 7, ten aanzien van die maatregelen geen gebruik te maken van de bepalingen van artikel XIX, lid 1, a., en lid 3, van de GATT 1994 of artikel 8, lid 2, van de Overeenkomst inzake vrijwaringsmaatregelen.

• 9 De bepalingen van dit artikel gelden voor de duur van het in artikel 20 bedoelde hervormingsproces.

DEEL IV

Artikel 6. Verbintenissen inzake interne steun

• 1 De verbintenissen tot verlaging van de interne steun die de Leden hebben opgenomen in Deel IV van hun Lijst gelden voor alle maatregelen inzake interne steun aan landbouwers, behalve de maatregelen die op grond van de criteria die zijn vastgesteld in dit artikel en in Bijlage 2 bij deze Overeenkomst vrijgesteld zijn van de verlagingsverbintenis. De verbintenissen worden uitgedrukt in „Totale Geaggregeerde Steun” en „Geconsolideerd Jaar- en Eindniveau van de Verbintenissen”.

• 2 Op grond van de MTR-Overeenkomst dat regeringsmaatregelen voor directe of indirecte steun om de ontwikkeling van landbouw en platteland te bevorderen een integrerend deel zijn van de ontwikkelingsprogramma's van ontwikkelingslanden, zijn, in tegenstelling tot wat anders het geval zou zijn geweest, de verbintenissen tot verlaging van de interne steun niet van toepassing op investeringssubsidies die Leden die ontwikkelingslanden zijn algemeen beschikbaar stellen voor de landbouw en evenmin op de inputsubsidies voor de landbouwsector die deze Leden algemeen beschikbaar stellen voor producenten met een laag inkomen of met weinig produktiemiddelen; zulks geldt eveneens voor steun die deze Leden verlenen om producenten aan te moedigen om over te schakelen op de teelt van andere gewassen dan illegale gewassen voor de produktie van drugs. Interne steun die voldoet aan de in dit lid vermelde criteria behoeft niet te worden meegerekend in de Actuele Totale AMS van een Lid.

• 3 Leden worden geacht hun verbintenis tot verlaging van de interne steun te zijn nagekomen in ieder jaar waarin de interne steun aan landbouwers, uitgedrukt in de Actuele Totale AMS, niet groter is dan de geconsolideerde verbintenis voor een bepaald jaar of de geconsolideerde eindverbintenis die is gespecificieerd in Deel IV van de Lijst van dat Lid.

• 4

  • a. Leden zijn niet verplicht om bij de berekening van hun Actuele Totale AMS rekening te houden met en zijn niet verplicht om over te gaan tot verlaging van:

    • i. produktgebonden interne steun die normaliter meegerekend zou moeten worden, maar die niet groter is dan 5% van de totale produktiewaarde van een referentielandbouwprodukt van dat Lid in het betrokken jaar, en

    • ii. niet-produktgebonden interne steun die normaliter meegerekend zou moeten worden, maar die niet groter is dan 5% van de totale produktiewaarde van de landbouw van dat Lid.

  • b. Voor Leden die ontwikkelingslanden zijn bedraagt het de-minimis-percentage op grond van dit lid 10%.

• 5

  • a. Directe betalingen in het kader van programma's voor produktiebeperking vallen niet onder de verbintenis tot verlaging van de interne steun, op voorwaarde dat

    • i. dergelijke betalingen gebaseerd zijn op een bepaalde oppervlakte en een bepaalde opbrengst, of

    • ii. dergelijke betalingen gebaseerd zijn op niet meer dan 85% van het basisniveau van de produktie, of

    • iii. betalingen per dier gebaseerd zijn op een bepaald aantal dieren.

  • b. De vrijstelling van de steunverlagingsverbintenis wordt voor de directe betalingen die aan bovengenoemde criteria voldoen, gerealiseerd door bij de berekening van de Actuele Totale AMS van een Lid geen rekening te houden met de waarde van deze directe betalingen.

Artikel 7. Algemene disciplines inzake interne steun

• 1 De Leden zorgen ervoor dat interne steun aan landbouwers die niet onder de steunverlagingsverbintenis valt op grond van de criteria die zijn vermeld in Bijlage 2 bij deze Overeenkomst, aan die criteria blijft voldoen.

• 2

  • a. Interne steunmaatregelen ten gunste van landbouwers, met inbegrip van alle wijzigingen in dergelijke maatregelen, en alle later ingevoerde maatregelen waarvoor niet kan worden aangetoond dat zij voldoen aan de criteria van Bijlage 2 bij deze Overeenkomst of dat de verlagingsverbintenis daarop niet van toepassing is op grond van een andere bepaling van deze Overeenkomst, moeten worden meegerekend voor de berekening van de Actuele Totale AMS van een Lid.

  • b. Als in Deel IV van de Lijst van een Lid geen verbintenis inzake de Totale AMS is opgenomen, mag dat Lid aan zijn landbouwers geen steun verlenen boven het relevante de-minimis-percentage dat is vastgesteld in artikel 6, lid 4.

DEEL V

Artikel 8. Verbintenissen inzake concurrentie bij uitvoer

De Leden verbinden zich ertoe uitsluitend uitvoersubsidies toe te kennen in overeenstemming met deze Overeenkomst en met de verbintenissen die zijn opgenomen in hun Lijst.

Artikel 9. Verbintenissen inzake uitvoersubsidies

• 1 De hierna genoemde uitvoersubsidies vallen onder de verlagingsverbintenissen in het kader van deze Overeenkomst:

  • a. de toekenning door de overheid of door overheidsinstanties aan een bedrijf, een bedrijfstak, producenten van een landbouwprodukt, een coöperatie of een ander samenwerkingsverband van dergelijke producenten of aan een officiële afzetorganisatie, van directe subsidies, waaronder betalingen in natura, die afhankelijk zijn van de uitvoer;

  • b. de verkoop of afzet via uitvoer, door de overheid of door overheidsinstanties van niet-commerciële voorraden landbouwprodukten tegen een lagere prijs dan de vergelijkbare prijs die voor het corresponderende produkt in rekening wordt gebracht aan kopers op de interne markt;

  • c. betalingen bij uitvoer van een landbouwprodukt die worden gefinancierd krachtens overheidsmaatregelen, al of niet ten laste van de openbare middelen, waaronder betalingen die worden gefinancierd uit de opbrengst van een heffing op het betrokken landbouwprodukt of op een landbouwprodukt waarvan het uitgevoerde produkt een afgeleid produkt is;

  • d. de toekenning van subsidies ter verlaging van de afzetkosten bij uitvoer van landbouwprodukten (andere dan algemeen beschikbare diensten voor uitvoerbevordering en advies terzake), waaronder kosten van handling, kwaliteitsverbetering en andere verwerkingskosten en de kosten van internationaal vervoer;

  • e. door of in opdracht van de overheid bij verzending naar het buitenland toegepaste tarieven voor intern vervoer die gunstiger zijn dan de tarieven voor binnenlandse verzendingen;

  • f. subsidies voor landbouwprodukten die afhankelijk zijn van de verwerking daarvan in produkten die worden uitgevoerd.

• 2

  • a. Onverminderd het bepaalde onder b. gelden de verbintenissen inzake het niveau van de uitvoersubsidie in de afzonderlijke jaren van de uitvoeringsperiode die de Leden voor de in lid 1 van dit artikel opgesomde uitvoersubsidies in hun Lijsten hebben opgenomen,

    • i. wat de verbintenissen tot verlaging van de begrotingsuitgaven betreft, als het maximumniveau van de uitgaven voor dergelijke subsidies dat in dat jaar mag worden uitgetrokken of vastgelegd voor het betrokken landbouwprodukt of de betrokken groep landbouwprodukten, en

    • ii. wat de verbintenissen tot verlaging van het volume van de uitvoer betreft, als de maximumhoeveelheid van een landbouwprodukt of een groep landbouwprodukten waarvoor in dat jaar dergelijke uitvoersubsidies mogen worden toegekend.

  • b. Van het tweede tot en met het vijfde jaar van de uitvoeringsperiode mogen de Leden bij de toekenning van de in lid 1 genoemde uitvoersubsidies de verbintenissen voor een bepaald jaar die voor de produkten of groepen produkten zijn gespecificeerd in Deel IV van hun Lijst overschrijden op voorwaarde dat:

    • i. de cumulatieve begrotingsuitgaven voor dergelijke subsidies vanaf het begin van de uitvoeringsperiode tot en met het betrokken jaar, de cumulatieve uitgaven die het resultaat zouden zijn geweest van volledige nakoming van de relevante verbintenissen over de uitgaven per jaar die zijn gespecificeerd in de Lijst van het betrokken Lid ten hoogste overschrijden met 3% van de betrokken begrotingsuitgaven in de basisperiode;

    • ii. de cumulatieve uitvoer met behulp van dergelijke uitvoersubsidies vanaf het begin van de uitvoeringsperiode tot en met het betrokken jaar, de cumulatieve uitvoer die het resultaat zou zijn geweest van volledige nakoming van de relevante verbintenissen over de hoeveelheden per jaar die zijn gespecificeerd in de Lijst van het betrokken Lid ten hoogste overschrijdt met 1,75% van de uitvoer in de basisperiode;

    • iii. over de hele uitvoeringsperiode de totale cumulatieve begrotingsuitgaven voor dergelijke uitvoersubsidies en de uitvoer waarvoor dergelijke uitvoersubsidies zijn toegekend, niet groter zijn dan de totale bedragen en de totale uitvoer die het resultaat zouden zijn geweest van volledige nakoming van de relevante verbintenissen per jaar die zijn gespecificeerd in de Lijst van het betrokken Lid, en

    • iv. de begrotingsuitgaven van een Lid voor uitvoersubsidies en de uitvoer van dat Lid met dergelijke subsidies aan het einde van de uitvoeringsperiode niet groter zijn dan 64, respectievelijk 79% van het niveau van de basisperiode 1986–1990. Voor Leden die ontwikkelingslanden zijn, bedragen deze percentages 76, respectievelijk 86%.

• 3 De verbintenissen om de werkingssfeer van de uitvoersubsidies niet uit te breiden, zijn gespecificeerd in de Lijsten.

• 4 Tijdens de uitvoeringsperiode behoeven de Leden die ontwikkelingslanden zijn geen verbintenissen aan te gaan voor de in lid 1, d. en e., genoemde uitvoersubsidies, op voorwaarde dat deze uitvoersubsidies niet zo worden toegepast dat daardoor de verbintenissen inzake steunverlaging worden omzeild.

Artikel 10. Voorkoming van het omzeilen van verbintenissen inzake uitvoersubsidies

• 1 De niet in artikel 9, lid 1, genoemde uitvoersubsidies worden niet zo toegepast dat zulks leidt tot of kan leiden tot het omzeilen van de verbintenissen inzake uitvoersubsidies; niet-commerciële transacties zullen niet worden gebruikt om dergelijke verbintenissen te omzeilen.

• 2 De Leden verbinden zich ertoe mee te werken aan de totstandbrenging van internationaal aanvaarde disciplines voor uitvoerkredieten, uitvoerkredietgaranties of uitvoerkredietverzekeringsregelingen en om, na goedkeuring van dergelijke disciplines uitsluitend uitvoerkredieten, uitvoerkredietgaranties of uitvoerkredietverzekeringsregelingen toe te passen die daarmee in overeenstemming zijn.

• 3 Leden die stellen dat hoeveelheden die worden uitgevoerd boven de in een verbintenis tot verlaging van de gesubsidieerde uitvoer gespecificeerde hoeveelheden niet worden gesubsidieerd, moeten aantonen dat voor de betrokken hoeveelheid geen uitvoersubsidie, noch als genoemd in artikel 9, noch een andere, is toegekend.

• 4 Leden die internationale voedselhulp geven, zorgen ervoor

  • a. dat internationale voedselhulp noch direct, noch indirect gekoppeld wordt aan uitvoer van landbouwprodukten naar de ontvangende landen;

  • b. dat internationale voedselhulptransacties, waaronder geldelijke bilaterale voedselhulp, worden uitgevoerd met inachtneming van de „Principles of Surplus Disposal and Consultative Obligations” (Beginselen inzake afzet van overschotten en overlegverplichtingen) van de FAO, en, indien van toepassing, het stelsel van „Usual Marketing Requirements (UMRs)” (Normale commerciële invoer), en

  • c. dat dergelijke hulp zoveel mogelijk wordt verleend in de vorm van schenkingen of op voorwaarden die minstens even gunstig zijn als die van artikel IV van het Voedselhulpverdrag van 1986.

Artikel 11. Verwerkte produkten

De uitvoersubsidie per eenheid van een verwerkt primair landbouwprodukt mag in geen geval hoger zijn dan de uitvoersubsidie per eenheid die van toepassing zou zijn bij uitvoer van het primaire landbouwprodukt als zodanig.

DEEL VI

Artikel 12. Disciplines inzake verboden op en beperkingen van de uitvoer

• 1 Wanneer een Lid op grond van artikel XI, lid 2, a), van de GATT 1994 een nieuw verbod of een nieuwe beperking op de uitvoer van voedingsmiddelen invoert, moeten de volgende bepalingen in acht worden genomen:

  • a. het Lid dat het uitvoerverbod of de uitvoerbeperking invoert, dient passende aandacht te geven aan het effect van een dergelijk verbod of van een dergelijke beperking op de continuïteit in de voedselvoorziening van Leden die voedselinvoerende landen zijn;

  • b. voordat een Lid een uitvoerverbod of een uitvoerbeperking invoert, zendt het de Landbouwcommissie zo vroeg mogelijk een schriftelijke kennisgeving met daarin gegevens zoals de aard en de duur van de maatregel en pleegt dat Lid, na een verzoek dienaangaande, met ieder ander Lid dat een aanzienlijk belang heeft als importeur overleg over alle aangelegenheden in verband met de betrokken maatregel. Het Lid dat een uitvoerverbod of een uitvoerbeperking invoert, verstrekt een Lid dat een aanzienlijk belang heeft als importeur, op verzoek de nodige gegevens.

• 2 Het bepaalde in dit artikel is niet van toepassing op Leden die ontwikkelingslanden zijn, tenzij de maatregel wordt genomen door een Lid dat een ontwikkelingsland en tegelijk een netto-exporteur van het betrokken voedingsmiddel is.

DEEL VII

Artikel 13. Passende terughoudendheid

Ondanks de bepalingen van de GATT 1994 en de Overeenkomst inzake subsidies en compenserende maatregelen (in dit artikel „Subsidie-overeenkomst” genoemd) geldt voor de uitvoeringsperiode het volgende:

• a. interne steunmaatregelen die volledig in overeenstemming zijn met de bepalingen van Bijlage 2 bij deze Overeenkomst

  • i. kunnen niet leiden tot compenserende rechten219;

  • ii. kunnen niet leiden tot acties op grond van artikel XVI van de GATT 1994 en Deel III van de Subsidie-overeenkomst, en

  • iii. kunnen niet leiden tot acties vanwege het feit dat de voordelen van tariefconcessies die volgens artikel II van de GATT 1994 aan een ander Lid toekomen, zijn tenietgedaan of uitgehold in de zin van artikel XXIII, lid 1, b), van de GATT 1994 zonder dat de bepalingen van de GATT zijn overtreden;

• b. de interne steunmaatregelen die zijn gespecificeerd in de Lijsten van de Leden en die volledig in overeenstemming zijn met de bepalingen van artikel 6 van deze Overeenkomst, met inbegrip van de directe betalingen die in overeenstemming zijn met lid 5 daarvan, alsmede de interne steun die beneden de de-minimis-niveaus blijft en in overeenstemming is met artikel 6, lid 2,

  • i. kunnen niet leiden tot compenserende rechten, tenzij volgens artikel VI van de GATT 1994 en Deel V van de Subsidie-overeenkomst schade of dreigende schade wordt vastgesteld, met dien verstande voorts dat inzake het openen van een onderzoek aangaande compenserende rechten passende terughoudendheid wordt betracht;

  • ii. kunnen niet leiden tot acties op grond van artikel XVI, lid 1, van de GATT 1994 of de artikelen 5 en 6 van de Subsidie-overeenkomst, op voorwaarde dat in het kader van dergelijke maatregelen voor een specifiek produkt niet meer steun wordt verleend dan in het jaar 1992, en

  • iii. kunnen niet leiden tot acties vanwege het feit dat de voordelen van tariefconcessies die volgens artikel II van de GATT 1994 aan een ander Lid toekomen, zijn tenietgedaan of uitgehold in de zin van artikel XXIII, lid 1, b), van de GATT 1994 zonder dat de bepalingen van de GATT zijn overtreden, op voorwaarde dat in het kader van dergelijke maatregelen voor een specifiek produkt niet meer steun wordt verleend dan in het jaar 1992;

• c. de in de Lijsten van de Leden gespecificeerde uitvoersubsidies die volledig in overeenstemming zijn met de bepalingen van Deel V van deze Overeenkomst

  • i. kunnen alleen leiden tot compenserende rechten, nadat volgens artikel VI van de GATT 1994 en Deel V van de Subsidie-overeenkomst schade of dreigende schade wordt vastgesteld in verband met de volume-ontwikkeling, het effect op de prijzen of latere gevolgen, met dien verstande voorts dat inzake het openen van een onderzoek aangaande compenserende rechten passende terughoudendheid wordt betracht, en

  • ii. kunnen niet leiden tot acties op grond van artikel XVI van de GATT 1994 of de artikelen 3, 5 en 6 van de Subsidie-overeenkomst.

DEEL VIII

Artikel 14. Sanitaire en fytosanitaire maatregelen

De Leden komen overeen de Overeenkomst inzake sanitaire en fytosanitaire maatregelen uit te voeren.

DEEL IX

Artikel 15. Bijzondere en afwijkende behandeling

• 1 Overeenkomstig de erkenning dat een afwijkende en gunstiger behandeling voor Leden die ontwikkelingslanden zijn, een integrerend deel is van de onderhandelingen, wordt een bijzondere en afwijkende behandeling inzake verbintenissen toegestaan zoals vastgesteld in de relevante bepalingen van deze Overeenkomst en vastgelegd in de Lijsten van concessies en verbintenissen.

• 2 Leden die ontwikkelingslanden zijn hebben het recht de verlagingsverbintenissen uit te voeren over een periode van maximaal tien jaar. Leden die minstontwikkelde landen zijn, behoeven geen verlagingsverbintenissen aan te gaan.

DEEL X

Artikel 16. Minstontwikkelde landen en ontwikkelingslanden die netto-importeurs van voedsel zijn

• 1 De Leden die ontwikkelde landen zijn, nemen de maatregelen waarin is voorzien in het Besluit inzake maatregelen naar aanleiding van de mogelijke negatieve effecten van het hervormingsprogramma op de minstontwikkelde landen en op de ontwikkelingslanden die netto-importeur van voedsel zijn.

• 2 De Landbouwcommissie houdt toezicht op de uitvoering van dit besluit.

DEEL XI

Artikel 17. Landbouwcommissie

Hierbij wordt een Landbouwcommissie opgericht.

Artikel 18. Evaluatie van de uitvoering van de verbintenissen

• 1 De vorderingen bij de uitvoering van de verbintenissen die zijn overeengekomen in het hervormingsprogramma in het kader van de Uruguay-Ronde worden in de Landbouwcommissie geëvalueerd.

• 2 De evaluatie wordt uitgevoerd aan de hand van kennisgevingen die de Leden over vast te stellen onderwerpen en op vast te stellen tijdstippen indienen, alsmede aan de hand van de documentatie die het Secretariaat van de WTO kan worden verzocht op te stellen om de evaluatie te vergemakkelijken.

• 3 Naast de op grond van lid 2 in te dienen kennisgevingen, moeten onverwijld kennisgevingen worden ingediend voor iedere nieuwe interne steunmaatregel of iedere wijziging in een bestaande steunmaatregel waarvoor aanspraak op vrijstelling van de verlagingsverbintenis wordt gemaakt. In de kennisgeving dienen details te worden meegedeeld over de nieuwe of gewijzigde maatregel en moet worden aangetoond dat deze in overeenstemming is met de in artikel 6 of in Bijlage 2 bij deze Overeenkomst vastgestelde criteria.

• 4 Bij de evaluatie houden de Leden terdege rekening met het effect van zeer hoge inflatiepercentages op de mogelijkheden van een Lid om zich aan zijn verbintenissen inzake interne steun te houden.

• 5 De Leden komen overeen in de Landbouwcommissie jaarlijks, tegen de achtergrond van de verbintenissen inzake uitvoersubsidies in het kader van deze Overeenkomst, overleg te plegen over hun aandeel in de normale groei van de wereldhandel in landbouwprodukten.

• 6 Bij de evaluatie kunnen de Leden iedere kwestie aan de orde stellen die relevant is voor de uitvoering van de verbintenissen die in deze Overeenkomst zijn opgenomen in het kader van het hervormingsprogramma.

• 7 Ieder Lid mag iedere maatregel onder de aandacht van de Landbouwcommissie brengen die naar zijn oordeel door een ander Lid via een kennisgeving had moeten worden gemeld.

Artikel 19. Overleg en beslechting van geschillen

De bepalingen van de artikelen XXII en XXIII van de GATT 1994, zoals uitgewerkt en toegepast in het Memorandum van Overeenstemming inzake Geschillenbeslechting, zijn van toepassing op het overleg over en de beslechting van geschillen in het kader van deze Overeenkomst.

DEEL XII

Artikel 20. Voortzetting van het hervormingsproces

Erkennend dat hun doelstelling op lange termijn, aanzienlijke en progressieve verlaging van ondersteuning en bescherming leidend tot een fundamentele hervorming, een permanent proces impliceert, komen de Leden overeen dat de onderhandelingen over de voortzetting van dat proces één jaar vóór het einde van de uitvoeringsperiode begonnen zullen worden, rekening houdend met

• a. de ervaring tot dat tijdstip met de uitvoering van de verlagings-verbintenissen;

• b. de effecten van de verlagingsverbintenissen op de wereldhandel in landbouwprodukten;

• c. overwegingen van niet-commerciële aard, de bijzondere en afwijkende behandeling voor Leden die ontwikkelingslanden zijn, het doel een billijk en marktgeoriënteerd handelssysteem voor landbouwprodukten tot stand te brengen en de andere doelstellingen en overwegingen die zijn genoemd in de considerans van deze Overeenkomst, en

• d. de verdere verbintenissen die nodig zijn voor het bereiken van bovengenoemde doelstellingen op lange termijn.

DEEL XIII

Artikel 21. Slotbepalingen

• 1 De bepalingen van de GATT 1994 en van andere Multilaterale handelsovereenkomsten in Bijlage 1.A bij de WTO-overeenkomst zijn van toepassing onder voorbehoud van de bepalingen van deze Overeenkomst.

• 2 De bijlagen bij deze Overeenkomst vormen een integrerend deel van deze Overeenkomst.

Bijlage 1. PRODUKTEN

1.

Deze Overeenkomst heeft betrekking op onderstaande produkten:

• i. GS-hoofdstukken 1 tot en met 24, exclusief vis en visserijprodukten, plus220

• ii.

  GS-code	2905.43	(mannitol)
  GS-code	2905.44	(sorbitol)
  GS-tariefpost	33.01	(etherische oliën)
  GS-tariefposten	35.01 t/m 35.05	(albumine-achtige stoffen, gewijzigd zetmeel, lijm)
  GS-code	3809.10	(appreteermiddelen)
  GS-code	3823.60	(sorbitol n.e.g.)
  GS-tariefposten	41.01 t/m 41.03	(huiden en vellen)
  GS-tariefpost	43.01	(pelterijen)
  GS-tariefposten	50.01 t/m 50.03	(ruwe zijde en zijdeafval)
  GS-tariefposten	51.01 t/m 51.03	(wol en haar)
  GS-tariefposten	52.01 t/m 52.03	(ruwe katoen, afval van katoen en gekaarde of gekamde katoen)
  GS-tariefpost	53.01	(ruw vlas)
  GS-tariefpost	53.02	(ruwe hennep)

2.

Het bovenstaande doet niets af aan de werkingssfeer van de Overeenkomst inzake sanitaire en fytosanitaire maatregelen.

BIJLAGE 2. INTERNE STEUN: GRONDSLAG VOOR VRIJSTELLING VAN DE VERLAGINGSVERBINTENISSEN

1.

Interne steunmaatregelen waarvoor aanspraak op vrijstelling van de verlagingsverbintenissen wordt gemaakt, moeten voldoen aan de fundamentele eis dat zij de handel of de produktie niet of hoogstens minimaal verstoren. Daarom moeten alle maatregelen waarvoor de vrijstelling wordt gevraagd, voldoen aan de volgende basiscriteria:

• a. de betrokken steun moet worden verleend in het kader van een uit overheidsmiddelen (waaronder gederfde inkomsten) gefinancierd overheidsprogramma dat geen overdrachten van consumenten omvat, en

• b. de betrokken steunmaatregel mag geen prijsondersteuning voor de producenten inhouden,

  alsmede, naargelang van de categorie van de maatregelen, aan de hierna vermelde soortspecifieke criteria en voorwaarden.

Overheidsregelingen

2. Algemene dienstverlening

Deze categorie maatregelen omvat uitgaven (of gederfde inkomsten) voor regelingen in het kader waarvan diensten worden verleend aan de landbouw of de plattelandsgemeenschap of die aan de landbouw of de plattelandsgemeenschap ten goede komen. Deze maatregelen mogen geen directe betalingen aan producenten of verwerkers inhouden. Dergelijke regelingen moeten voldoen aan de in bovenstaand lid 1 vermelde basiscriteria en eventuele hierna vermelde specifieke voorwaarden. Deze regelingen kunnen de hierna vermelde maatregelen, doch ook andere maatregelen omvatten:

• a. onderzoek, waaronder algemeen onderzoek, onderzoek in verband met milieuprogramma's en onderzoekprogramma's in verband met specifieke produkten;

• b. bestrijding van plagen en ziekten, waaronder algemene maatregelen en maatregelen per produkt, zoals alarmeringssystemen, quarantaine en uitroeiing;

• c. opleidingsdiensten, waaronder zowel faciliteiten voor algemene als specialistische scholing;

• d. voorlichtings- en adviesdiensten, waaronder het verstrekken van middelen om producenten en consumenten beter te kunnen inlichten, ook over de resultaten van onderzoek;

• e. inspectiediensten, waaronder algemene inspectiediensten en de inspectie van bepaalde produkten met het oog op volksgezondheid, veiligheid, indeling of standaardisatie;

• f. diensten voor afzet en verkoopbevordering, waaronder marktinformatie, advies en verkoopbevordering voor bepaalde produkten, maar geen uitgaven voor niet-gespecificeerde doeleinden zodat deze middelen door de verkopers zouden kunnen worden gebruikt om hun verkoopprijs te verlagen of de kopers een direct economisch voordeel te verschaffen, en

• g. infrastructuurvoorziening, waaronder elektriciteitsnet, wegen en andere transportvoorzieningen, markten en haveninstallaties, watervoorziening, dammen en waterafvoer, en de infrastructuur voor milieubeschermingsprogramma's. In al deze gevallen mogen de uitgaven uitsluitend betrekking hebben op de levering of de aanleg van de infrastructuur en niet op gesubsidieerde levering van andere voorzieningen op het landbouwbedrijf dan de aansluiting op algemeen beschikbare nutsvoorzieningen. De uitgaven mogen geen subsidies op produktiebenodigdheden of kosten van bedrijfsvoering, noch voorkeurstarieven omvatten.

3. Overheidsvoorraden met het oog op de continuïteit van de voedselvoorziening221 .

Uitgaven (of gederfde inkomsten) voor het aanleggen en aanhouden van voorraden produkten die een integrerend deel zijn van een programma om de continuïteit van de voedselvoorziening te waarborgen dat wordt uitgevoerd op grond van bepaalde nationale wetten. Dit kan ook overheidssteun omvatten voor particuliere opslag van produkten in het kader van een dergelijk programma.

De omvang en de aanleg van dergelijke voorraden dienen te corresponderen met vooraf bepaalde doelstellingen die uitsluitend verband houden met waarborging van de voedselvoorziening. De aanleg, zowel als de afzet van de voorraden dient financieel verifieerbaar te zijn. De aankoop van het voedsel door de overheid dient te gebeuren tegen de gangbare marktprijzen en de verkoop uit de voorraden dient te geschieden tegen prijzen die niet lager zijn dan de gangbare prijzen op de interne markt voor het betrokken produkt en de betrokken kwaliteit.

4. Interne voedselhulp222

Uitgaven (of gederfde inkomsten) in verband met interne voedselhulp aan bevolkingsgroepen in nood.

Het recht op voedselhulp dient afhankelijk te worden gesteld van duidelijke criteria gekoppeld aan doelstellingen op het gebied van voeding. Dergelijke steun kan worden verleend in de vorm van rechtstreekse verstrekking van voedsel aan de betrokkenen of door diegenen die aan de voorwaarden voldoen de middelen te verstrekken om voedsel te kopen tegen marktprijzen of gesubsidieerde prijzen. Het voedsel dient door de overheid tegen gangbare marktprijzen te worden aangekocht en de financiering en administratie van de steun dient verifieerbaar te zijn.

5. Directe betalingen aan producenten

Steun aan producenten via directe betalingen (of gederfde inkomsten, met inbegrip van betalingen in natura) waarvoor aanspraak wordt gemaakt op vrijstelling van de verlagingsverbintenissen, dient te voldoen aan de basiscriteria die zijn vermeld in punt 1 en aan de in de punten 6 tot en met 13 vermelde specifieke criteria voor de afzonderlijke categorieën directe betalingen. Als aanspraak wordt gemaakt op vrijstelling van de verlagingsverbintenis voor andere bestaande of nieuwe directe steun dan vermeld in de punten 6 tot en met 13, dient die steun behalve met de in punt 1 vermelde basiscriteria ook in overeenstemming te zijn met de in punt 6, b. tot en met e., vermelde criteria.

6. Niet-produktiegebonden inkomenssteun

• a Het recht op dergelijke betalingen moet worden bepaald aan de hand van duidelijke criteria, zoals inkomen, de status van producent of grondeigenaar, het gebruik van produktiefactoren of de produktie-omvang in een bepaalde basisperiode.

• b De hoogte van dergelijke betalingen in een jaar mag niet worden gekoppeld aan of gebaseerd op het type of de omvang van de produktie (waaronder het aantal stuks vee) van de producent in een jaar na de basisperiode.

• c De hoogte van dergelijke betalingen in een jaar mag niet worden gekoppeld aan of gebaseerd op de prijzen, op de interne markt of de wereldmarkt, voor een produkt in een jaar na de basisperiode.

• d De hoogte van dergelijke betalingen in een jaar mag niet worden gekoppeld aan of gebaseerd op de produktiefactoren die zijn gebruikt in een jaar na de basisperiode.

• e Produktie zal geen voorwaarde zijn om in aanmerking te komen voor dergelijke betalingen.

7. Overheidsbijdrage voor inkomensverzekeringsregelingen

• a Het recht op dergelijke betalingen dient afhankelijk te zijn van een inkomensverlies, waarvoor uitsluitend rekening wordt gehouden met het inkomen uit de landbouw, van meer dan 30% van het gemiddelde brutoinkomen of het daarmee corresponderende netto-inkomen (betalingen uit deze of soortgelijke regelingen niet meegerekend) over de voorgaande drie jaar of van het gemiddelde van drie jaren van de vijf voorgaande jaren, de jaren met het hoogste en het laagste inkomen niet meegerekend. Iedere producent die aan deze voorwaarde voldoet, dient recht te hebben op de betaling.

• b Deze betalingen mogen niet meer compenseren dan 70% van het inkomensverlies van de producent in het jaar waarin hij recht krijgt op deze steun.

• c Deze betalingen mogen uitsluitend gekoppeld worden aan het inkomen; zij mogen niet gekoppeld worden aan het type of de omvang van de produktie (waaronder het aantal stuks vee) van de producent, noch aan de prijzen, op de interne markt of de wereldmarkt, voor de betrokken produkten, noch aan de gebruikte produktiefactoren.

• d Als een producent in hetzelfde jaar betalingen ontvangt op grond van het bepaalde in dit punt en in punt 8 (steun in verband met natuurrampen), dient het totaal van die betalingen kleiner te zijn dan 100% van zijn totale verlies.

8. Betalingen (hetzij rechtstreeks, hetzij via een overheidsbijdrage voor oogstverzekeringen) in verband met natuurrampen

• a Het recht op dergelijke betalingen dient afhankelijk te zijn van formele erkenning door de overheid dat er sprake is of is geweest van een natuurramp of soortgelijke ramp (waaronder epidemieën, plagen, kernongelukken, en oorlog op het grondgebied van het betrokken Lid) en een produktiedaling van meer dan 30% van de gemiddelde produktie in de laatste drie jaar of de gemiddelde produktie van drie jaren van de laatste vijf jaren, de hoogste en de laagste produktie niet meegerekend.

• b Betalingen naar aanleiding van een ramp mogen slechts betrekking hebben op het verlies van inkomen, vee (waaronder ook betalingen voor diergeneeskundige behandeling van de dieren), land of andere produktiefactoren als gevolg van de betrokken natuurramp.

• c De betalingen mogen hoogstens de verliezen compenseren en geen voorwaarden of bepalingen omvatten wat betreft het type of de omvang van de produktie in de toekomst.

• d Betalingen tijdens een ramp mogen niet groter zijn dan nodig is om verdere verliezen als gedefinieerd onder b. te voorkomen of te beperken.

• e Als een producent in hetzelfde jaar betalingen ontvangt op grond van het bepaalde in dit punt en in punt 7 (inkomensverzekeringsregelingen), dient het totaal van die betalingen kleiner te zijn dan 100% van het totale verlies van de producent.

9. Steun voor structuuraanpassing via beëindigingsregelingen

• a Het recht op dergelijke betalingen dient afhankelijk te zijn van duidelijke criteria in programma’s om bedrijfsbeëindiging door personen die commercieel agrarische produkten produceren of hun omschakeling op niet-agrarische activiteiten, te vergemakkelijken.

• b De betalingen moeten afhankelijk worden gesteld van volledige en permanente beëindiging van commerciële agrarische produktie.

10. Steun voor structuuraanpassing via braakleggingsprogramma’s

• a Het recht op dergelijke betalingen dient afhankelijk te zijn van duidelijke criteria in programma’s om land of andere produktiemiddelen, met inbegrip van vee, te onttrekken aan commercie¨le agrarische produktie.

• b De betalingen moeten afhankelijk worden gesteld van het uit produktie nemen van land voor commerciële agrarische produktie voor minstens drie jaar en, wat betreft vee, van het slachten of definitieve permanente verwijdering van het bedrijf.

• c De betalingen mogen geen voorwaarden of bepalingen omvatten inzake gebruik van dergelijk land of andere produktiemiddelen voor de commerciële produktie van landbouwprodukten.

• d De betalingen mogen niet worden gekoppeld aan het type of de omvang van de produktie en evenmin aan de prijzen, op de interne markt of de wereldmarkt, voor de produkten die worden verkregen met gebruikmaking van het land of de overige produktiemiddelen die voor produktie resteren.

11. Steun voor structuuraanpassing in de vorm van investeringssteun

• a Het recht op dergelijke betalingen dient afhankelijk te zijn van duidelijke criteria in overheidsprogramma’s ter ondersteuning van de financiële of materiële herstructurering van de bedrijfsactiviteit van een producent in verband met objectief aangetoonde structuurhandicaps. Het recht op steun in het kader van dergelijke programma’s kan ook worden gebaseerd op een duidelijk overheidsprogramma voor privatisering van landbouwgrond.

• b De hoogte van dergelijke betalingen in een jaar mag niet worden gekoppeld aan of gebaseerd op het type of de omvang van de produktie (waaronder het aantal stuks vee) van de producent, afgezien van bepalingen als bedoeld onder e., in een jaar na de basisperiode.

• c De hoogte van dergelijke betalingen in een jaar mag niet worden gekoppeld aan of gebaseerd op de prijzen, op de interne markt of de wereldmarkt, voor een produkt in een jaar na de basisperiode.

• d De betalingen worden slechts gedaan voor de periode die nodig is voor de uitvoering van de investeringen waarvoor ze worden gegeven.

• e De betalingen mogen voor de ontvangers geen verplichtingen inhouden, noch anderszins aanwijzingen omvatten wat betreft de te produceren landbouwprodukten, behalve de eis om een bepaald produkt niet te produceren.

• f De betalingen mogen niet hoger zijn dan nodig is om de structuurhandicap te compenseren.

12. Betalingen in het kader van milieubeschermingsprogramma’s

• a Het recht op dergelijke betalingen dient een onderdeel te zijn van een duidelijk overheidsprogramma voor milieubescherming of natuurbehoud en afhankelijk te worden gesteld van de naleving van specifieke voorwaarden in het kader van dat overheidsprogramma, waaronder voorwaarden wat betreft de produktiemethoden of de produktiebenodigdheden.

• b De betaling mag niet hoger zijn dan de extra kosten of de gederfde inkomsten als gevolg van naleving van het overheidsprogramma.

13. Betalingen in het kader van programma’s voor regionale bijstand

• a Het recht op dergelijke betalingen dient beperkt te blijven tot producenten in probleemgebieden. Dergelijke gebieden dienen duidelijk omschreven aaneengesloten geografische gebieden te zijn met een definieerbare economische en administratieve identiteit en moeten als probleemgebieden zijn aangemerkt aan de hand van neutrale en objectieve criteria die duidelijk zijn vastgelegd in wetten of verordeningen en waaruit blijkt dat de problemen van het gebied niet uitsluitend zijn toe te schrijven aan tijdelijke omstandigheden.

• b De hoogte van dergelijke betalingen in een jaar mag niet worden gekoppeld aan of gebaseerd op het type of de omvang van de produktie (waaronder het aantal stuks vee) van de producent in een jaar na de basisperiode, behalve aan de eis om de produktie te verlagen.

• c De hoogte van dergelijke betalingen in een jaar mag niet worden gekoppeld aan of gebaseerd op de prijzen, op de interne markt of de wereldmarkt, voor een produkt in een jaar na de basisperiode.

• d Het recht op de betalingen geldt alleen voor producenten in de te ondersteunen gebieden, maar in die gebieden voor alle producenten.

• e Als de betalingen worden gekoppeld aan de produktiefactoren, zijn de bedragen degressief boven een bepaalde drempel voor de betrokken produktiefactor.

• f De betalingen mogen niet groter te zijn dan de extra kosten of de gederfde inkomsten als gevolg van de landbouw in het betrokken gebied.

Bijlage 3. INTERNE STEUN: BEREKENING VAN DE GEAGGREGEERDE STEUN

1.

Onverminderd de bepalingen van artikel 6 wordt de Geaggrereerde Steun (Aggregate Measurement of Support – AMS) produktgebonden berekend voor ieder referentielandbouwprodukt waarvoor marktprijsondersteuning, niet-vrijgestelde directe betalingen of enige andere niet van de verlagingsverbintenis vrijgestelde subsidie (andere „niet-vrijgestelde beleidsmaatregelen”) wordt toegekend. Voor de niet-produktgebonden steun wordt de niet-produktgebonden AMS berekend in een enkel totaalbedrag.

2.

De in punt 1 bedoelde subsidies omvatten zowel de begrotingsuitgaven als de gederfde inkomsten van de overheid of haar uitvoeringsorganen.

3.

Zowel de steun op nationaal als subnationaal niveau wordt meegerekend.

4.

Door de producenten betaalde specifieke landbouwheffingen of retributies worden in mindering gebracht op de AMS.

5.

De volgens het onderstaande berekende AMS voor de basisperiode vormt het basisniveau voor de uitvoering van de verbintenis tot verlaging van de interne steun.

6.

Voor ieder referentielandbouwprodukt wordt een specifieke AMS bepaald en uitgedrukt in een totaal geldbedrag.

7.

De AMS wordt berekend voor het produkt dat zo kort mogelijk volgt op de eerste verkoop van het betrokken referentielandbouwprodukt. Maatregelen ten gunste van de verwerkers van landbouwprodukten worden meegerekend voor zover zij ten goede komen aan de producenten van de referentielandbouwprodukten.

8.

Marktprijsondersteuning: de ondersteuning van de marktprijzen wordt berekend door het verschil tussen een vaste externe referentieprijs en de toegepaste regelingsprijs te vermenigvuldigen met de geproduceerde hoeveelheid die in aanmerking komt voor de regelingsprijs. Begrotingsuitgaven om dit verschil te handhaven, zoals de opkoopkosten of de opslagkosten, worden niet meegerekend voor de AMS.

9.

De externe referentieprijs wordt gebaseerd op de jaren 1986 tot en met 1988 en wordt in het algemeen de gemiddelde f.o.b.-prijs per gewichtseenheid voor het betrokken referentielandbouwprodukt in een netto-exporterend land en de gemiddelde c.i.f.-prijs per gewichtseenheid voor het betrokken referentielandbouwprodukt in een netto-importerend land tijdens de basisperiode. De referentieprijs kan, zonodig, worden aangepast in verband met kwaliteitsverschillen.

10.

Niet-vrijgestelde directe betalingen: niet-vrijgestelde directe betalingen die afhankelijk zijn van een prijsverschil, worden berekend door het verschil tussen de referentieprijs en de toegepaste regelingsprijs te vermenigvuldigen met de geproduceerde hoeveelheid die in aanmerking komt voor de regelingsprijs of worden berekend aan de hand van de begrotingsuitgaven.

11.

De referentieprijs wordt gebaseerd op de jaren 1986 tot en met 1988 en is in het algemeen de prijs waarvan wordt uitgegaan voor de bepaling van het niveau van de directe betalingen.

12.

Het bedrag van de niet-vrijgestelde directe betalingen die gebaseerd worden op andere factoren dan de prijs, wordt berekend aan de hand van de begrotingsuitgaven.

13.

Andere niet-vrijgestelde maatregelen, waaronder inputsubsidies en andere maatregelen zoals maatregelen tot verlaging van de afzetkosten: de waarde van dergelijke maatregelen wordt berekend aan de hand van de begrotingsuitgaven van de overheid of, wanneer de volle omvang van de subsidie niet uit de begrotingsuitgaven blijkt, het verschil tussen de prijs van het gesubsidieerde produkt of de gesubsidieerde dienst en een representatieve marktprijs voor een soortgelijk produkt of een soortgelijke dienst, vermenigvuldigd met de hoeveelheid produkten of diensten.

Bijlage 4. INTERNE STEUN: BEREKENING VAN AMS-EQUIVALENT

1.

Onverminderd de bepalingen van artikel 6 worden AMS-equivalenten berekend voor alle referentielandbouwprodukten waarvoor de in Bijlage 3 gedefinieerde marktprijsondersteuning bestaat, maar waarvoor berekening van deze component van de AMS niet uitvoerbaar is. Voor dergelijke produkten omvat het basisniveau waarvan wordt uitgegaan voor de uitvoering van de verbintenissen inzake verlaging van de interne steun, een marktprijsondersteuningscomponent uitgedrukt in AMS-equivalenten als bedoeld in punt 2, alsmede eventuele niet-vrijgestelde directe betalingen en andere niet-vrijgestelde steun, die wordt geraamd overeenkomstig het bepaalde in punt 3. Zowel op nationaal als subnationaal niveau toegekende steun moet worden meegerekend.

2.

De in punt 1 bedoelde AMS-equivalenten worden voor alle referentielandbouwprodukten waarvoor marktprijsondersteuning wordt toegekend en waarvoor de berekening van de marktprijsondersteuningscomponent van de AMS niet uitvoerbaar is, produktgebonden berekend voor het produkt dat zo kort mogelijk volgt op de eerste verkoop. Voor deze referentielandbouwprodukten wordt het equivalent van de marktprijsondersteuning berekend met gebruikmaking van de toegepaste regelingsprijs en de geproduceerde hoeveelheid die in aanmerking komt voor die prijs of, als dit niet uitvoerbaar is, de begrotingsuitgaven voor ondersteuning van de producentenprijs.

3.

Als voor onder punt 1 vallende referentielandbouwprodukten niet-vrijgestelde directe betalingen of andere produktgebonden, niet van de verlagingsverbintenis vrijgestelde subsidies worden toegekend, worden de AMS-equivalenten voor deze maatregelen berekend zoals de overeenkomstige AMS-componenten (zie de punten 10 t/m 13 van Bijlage 3).

4.

De AMS-equivalenten worden berekend aan de hand van de subsidie voor het produkt dat zo kort mogelijk volgt op de eerste verkoop van het betrokken referentielandbouwprodukt. Maatregelen ten gunste van de verwerkers van landbouwprodukten worden meegerekend voor zover zij ten goede komen aan de producenten van de referentielandbouwprodukten. Voor specifieke landbouwheffingen of retributies die door de producenten zijn betaald, worden de AMS-equivalenten dienovereenkomstig verlaagd.

Bijlage 5. BIJZONDERE BEHANDELING OP GROND VAN ARTIKEL 4, LID 2.

Sectie A

1.

De bepalingen van artikel 4, lid 2, zijn niet met ingang van de inwerkingtreding van de WTO-Overeenkomst van toepassing op primaire landbouwprodukten en verwerkte en/of bereide produkten daarvan („aangeduide produkten”) waarvoor aan de onderstaande voorwaarden is voldaan (deze behandeling wordt hierna „bijzondere behandeling” genoemd):

• a. de invoer van de aangeduide produkten bedroeg in de basisperiode 1986-1988 (hierna „de basisperiode” genoemd) minder dan 3% van het betrokken interne verbruik;

• b. sinds het begin van de basisperiode zijn voor de aangeduide produkten geen uitvoersubsidies toegekend;

• c. er worden doeltreffende produktiebeperkende maatregelen toegepast voor het primaire landbouwprodukt;

• d. dergelijke produkten worden, in Sectie I-B van Deel I van de Lijst van een Lid die als bijlage is gehecht aan het Protocol van Marrakesj, aangeduid met de vermelding „ST-Annex 5” als produkten waarvoor een bijzondere behandeling geldt in verband met niet-commerciële overwegingen, zoals waarborging van de continuïteit van de voedselvoorziening en milieubescherming, en

• e. de minimumtoegang voor de aangeduide produkten, zoals gespecificeerd in Sectie I-B van Deel I van de Lijst van het betrokken Lid, bedraagt vanaf het begin van het eerste jaar van de uitvoeringsperiode 4% van het interne verbruik van de aangeduide produkten tijdens de basisperiode en wordt vervolgens per resterend jaar van de uitvoeringsperiode verhoogd met 0,8% van het betrokken interne verbruik in de basisperiode.

2.

Een Lid mag aan het begin van elk jaar van de uitvoeringsperiode door het bepaalde in punt 6 toe te passen een einde maken aan de bijzondere behandeling voor de aangeduide produkten. In dat geval dient het betrokken Lid de op dat tijdstip reeds geldende minimumtoegang te behouden en de minimumtoegang per resterend jaar van de uitvoeringsperiode te verhogen met 0,4% van het betrokken interne verbruik in de basisperiode. Daarna moet de minimumtoegang die op grond van deze formule geldt voor het laatste jaar van de uitvoeringsperiode, behouden blijven in de Lijst van het betrokken Lid.

3.

Onderhandelingen over de vraag of de in punt 1 vermelde bijzondere behandeling kan blijven gelden na de uitvoeringsperiode, moeten binnen deze uitvoeringsperiode worden afgerond in het kader van de in artikel 20 van deze Overeenkomst bedoelde onderhandelingen, daarbij rekening houdende met niet-commerciële overwegingen.

4.

Indien als resultaat van de in punt 3 bedoelde onderhandelingen wordt overeengekomen dat een Lid de bijzondere behandeling mag blijven toepassen, verleent dat Lid de aanvullende en acceptabele concessies die tijdens die onderhandelingen zijn vastgesteld.

5.

Als de bijzondere behandeling aan het einde van de uitvoeringsperiode niet langer van toepassing blijft, past het betrokken Lid de bepalingen van punt 6 toe. In dat geval moet na de uitvoeringsperiode de minimumtoegang voor de aangeduide produkten 8% blijven van het betrokken interne verbruik in de basisperiode dat is gespecificeerd in de Lijst van het betrokken Lid.

6.

Op de andere voor de aangeduide produkten toegepaste grensbeschermingsmaatregelen dan gewone douanerechten worden de bepalingen van artikel 4, lid 2, van toepassing vanaf het begin van het jaar waarin de bijzondere behandeling niet meer wordt toegepast. Voor dergelijke produkten worden gewone douanerechten toegepast die worden geconsolideerd in de Lijst van het betrokken Lid en die, vanaf het begin van het jaar waarin de bijzondere behandeling wordt beëindigd en daarna, worden toegepast op het niveau dat van toepassing zou zijn geweest als tijdens de uitvoeringsperiode in gelijke jaarlijkse stappen een verlaging met minstens 15% zou zijn toegepast. Deze douanerechten worden bepaald aan de hand van tariefequivalenten die worden berekend overeenkomstig de richtlijnen in het aanhangsel bij deze Bijlage.

Sectie B

7.

De bepalingen van artikel 4, lid 2, zijn ook niet met ingang van de inwerkingtreding van de WTO-Overeenkomst van toepassing op een primair landbouwprodukt dat traditioneel het belangrijkste voedingsmiddel is in een Lid dat een ontwikkelingsland is en waarvoor, behalve aan de in punt 1 a. tot en met d. vermelde voorwaarden, voor zover van toepassing, wordt voldaan aan de volgende voorwaarden:

• a. de minimumtoegang voor de betrokken produkten, zoals gespecificeerd in Sectie I-B van Deel I van de Lijst van het betrokken lid dat een ontwikkelingsland is, bedraagt vanaf het begin van het eerste jaar van de uitvoeringsperiode 1% van het interne verbruik van de betrokken produkten tijdens de basisperiode en wordt tot het begin van het vijfde jaar van de uitvoeringsperiode in gelijke stappen verhoogd tot 2% van het betrokken interne verbruik in de basisperiode. Vanaf het begin van het zesde jaar van de uitvoeringsperiode bedraagt de minimumtoegang voor de betrokken produkten 2% van het betrokken interne verbruik in de basisperiode en wordt deze toegang tot het begin van het tiende jaar in gelijke stappen verhoogd tot 4% van het betrokken interne verbruik in de basisperiode. Daarna moet de minimumtoegang die op grond van deze formule geldt voor het tiende jaar van de uitvoeringsperiode, behouden blijven in de Lijst van het betrokken Lid dat een ontwikkelingsland is;

• b. er moet adequate markttoegang zijn verleend voor andere produkten die onder deze Overeenkomst vallen.

8.

Onderhandelingen over de vraag of de in punt 7 vermelde bijzondere behandeling kan blijven gelden na het tiende jaar na het begin van de uitvoeringsperiode, moeten worden begonnen en afgerond binnen dit tiende jaar.

9.

Indien als resultaat van de in punt 8 bedoelde onderhandelingen wordt overeengekomen dat een Lid de bijzondere behandeling mag blijven toepassen, verleent dat Lid de aanvullende en acceptabele concessies die tijdens die onderhandelingen zijn vastgesteld.

10.

Als de bijzondere behandeling op grond van punt 7 aan het einde van het tiende jaar na het begin van de uitvoeringsperiode niet langer van toepassing blijft, worden voor de betrokken produkten gewone douanerechten toegepast die worden vastgesteld aan de hand van tariefequivalenten die worden berekend overeenkomstig de richtlijnen in het aanhangsel bij deze Bijlage en die worden geconsolideerd in de Lijst van het betrokken Lid. Voor het overige worden de bepalingen van punt 6 toegepast overeenkomstig de wijzigingen die zijn overeengekomen in het kader van de bijzondere en afwijkende behandeling die op grond van deze Overeenkomst is toegestaan voor Leden die ontwikkelingslanden zijn.

Aanhangsel bij Bijlage 5

Richtlijnen voor de berekening van tariefequivalenten in verband met het bepaalde in punt 6 en punt 10 van deze Bijlage.

1.

De tariefequivalenten worden, ongeacht of ze worden uitgedrukt in ad valorem-rechten of specifieke rechten, verifieerbaar berekend aan de hand van het verschil tussen de interne en de externe prijzen. Daarbij wordt uitgegaan van gegevens over de jaren 1986 tot en met 1988. De tariefequivalenten

• a. worden in beginsel vastgesteld voor viercijferige tariefposten van het GS;

• b. worden zonodig vastgesteld op zescijferig of nog gedetailleerder niveau van het GS;

• c. worden voor verwerkte en/of bereide produkten in het algemeen vastgesteld door vermenigvuldiging van het (de) specifieke tariefequivalent(en) voor het (de) primaire landbouwprodukt(en) met het aandeel (de aandelen), naargelang van het geval, in waarde of fysiek, van het (de) primaire landbouwprodukt(en) in het verwerkte en/of bereide produkt, daarbij, zonodig, rekening houdende met bestaande additionele elementen ter bescherming van de industrie.

2.

Als externe prijzen worden in het algemeen gemiddelde c.i.f.-prijzen per eenheid genomen voor het invoerende land. Als geen of geen adequate gemiddelde c.i.f.-prijzen beschikbaar zijn, worden als externe prijzen genomen

• a. adequate gemiddelde c.i.f.-prijzen per eenheid van een nabij land, of

• b. worden de externe prijzen geraamd aan de hand van gemiddelde f.o.b.-prijzen per eenheid van een adequaat belangrijk exporterend land of adequate belangrijke exporterende landen, welke prijzen worden aangepast door daarbij een geraamd bedrag voor verzekering, vracht en andere kosten naar het land van invoer op te stellen.

3.

De externe prijzen worden in het algemeen in de nationale valuta omgerekend met gebruikmaking van het jaargemiddelde van de marktwisselkoers voor dezelfde periode als de periode waarover prijsgegevens beschikbaar zijn.

4.

Als interne prijs wordt in het algemeen een prijs genomen die representatief is voor de groothandelsprijs op de interne markt of, als geen adequate gegevens beschikbaar zijn, een raming van die prijs.

5.

De oorspronkelijke tariefequivalenten kunnen, zonodig, met gebruikmaking van een passende coëfficiënt, worden aangepast in verband met verschillen in kwaliteit of soort.

6.

Als een op grond van deze richtlijnen berekend tariefequivalent negatief is of lager is dan het huidige geconsolideerde recht, kan het initiële tariefequivalent worden vastgesteld op het huidige geconsolideerde recht of op grond van een aanbod van het betrokken land voor dat produkt.

7.

Als het tariefequivalent dat volgens bovenstaande richtlijnen zou moeten worden toegepast, wordt aangepast, geeft het betrokken Lid, op verzoek, alle gelegenheid voor overleg om via onderhandelingen tot een passende oplossing te komen.

Overeenkomst inzake sanitaire en fytosanitaire maatregelen

De Leden,

Nogmaals verklarend dat ieder Lid de voor de bescherming van het leven of de gezondheid van mens, dier of plant noodzakelijke maatregelen mag vaststellen of toepassen, op voorwaarde dat de toepassing van deze maatregelen niet zo gebeurt dat zij een instrument zijn voor willekeurig of ongerechtvaardigd onderscheid tussen Leden in wier landen de omstandigheden gelijk zijn of een instrument voor een verkapte beperking van de internationale handel;

Geleid door de wens om de gezondheidssituatie van mens, dier en plant in de landen van alle Leden te verbeteren;

Vaststellende dat sanitaire en fytosanitaire maatregelen vaak worden toegepast op grond van bilaterale overeenkomsten of protocollen;

Geleid door de wens om een multilateraal kader van regels en disciplines vast te stellen voor de opstelling, vaststelling en toepassing van sanitaire en fytosanitaire maatregelen ten einde de negatieve effecten van deze maatregelen op de handel zoveel mogelijk te beperken;

Erkennend dat internationale normen, richtlijnen en aanbevelingen in dit opzicht een belangrijke bijdrage kunnen leveren;

Geleid door de wens om te bevorderen dat de Leden geharmoniseerde sanitaire en fytosanitaire maatregelen toepassen die zijn gebaseerd op internationale normen, richtlijnen en aanbevelingen van de relevante internationale organisaties, waaronder de Codex Alimentarius Commissie, het Internationaal Bureau voor Besmettelijke Veeziekten (OIE), en de relevante internationale en regionale organisaties in het kader van het Internationaal Verdrag voor de Bescherming van Planten, zonder daarbij echter van de Leden te eisen om het voor hen adequate niveau van bescherming van het leven of de gezondheid van mens, dier of plant te veranderen;

Erkennend dat Leden die ontwikkelingslanden zijn bijzondere moeilijkheden kunnen ondervinden om zich te houden aan de sanitaire of fytosanitaire maatregelen van Leden die importlanden zijn en daardoor om toegang te krijgen tot de markten, maar ook om in hun eigen land sanitaire of fytosanitaire maatregelen vast te stellen en toe te passen, en geleid door de wens de Leden die ontwikkelingslanden zijn te helpen bij hun inspanningen in dit opzicht;

Geleid daarom door de wens om regels op te stellen voor de toepassing van de bepalingen van de GATT 1994 die betrekking hebben op het gebruik van sanitaire of fytosanitaire maatregelen, en met name de bepalingen van artikel XX, b.223;

Komen het volgende overeen:

Artikel 1. Algemene bepalingen

• 1 Deze Overeenkomst geldt voor alle sanitaire en fytosanitaire maatregelen die, direct of indirect, van invloed kunnen zijn op de internationale handel. Dergelijke maatregelen moeten worden opgesteld en toegepast overeenkomstig de bepalingen van deze Overeenkomst.

• 2 In het kader van deze Overeenkomst gelden de in Bijlage A vastgestelde definities.

• 3 De Bijlagen zijn een integrerend deel van deze Overeenkomst.

• 4 Deze Overeenkomst doet geen afbreuk aan de rechten die de Leden kunnen doen gelden op grond van de Overeenkomst inzake technische handelsbelemmeringen, voor zover het gaat om maatregelen die niet binnen de werkingssfeer van deze Overeenkomst vallen.

Artikel 2. Fundamentele rechten en verplichtingen

• 1 De Leden hebben het recht de sanitaire en fytosanitaire maatregelen te nemen die nodig zijn voor de bescherming van het leven of de gezondheid van mens, dier of plant, op voorwaarde dat dergelijke maatregelen niet in strijd zijn met de bepalingen van deze Overeenkomst.

• 2 De Leden zorgen ervoor dat sanitaire of fytosanitaire maatregelen alleen worden toegepast voor zover nodig voor de bescherming van het leven of de gezondheid van mens, dier of plant, dat dergelijke maatregelen worden gebaseerd op wetenschappelijke uitgangspunten en niet van kracht worden gelaten zonder voldoende wetenschappelijk bewijs, tenzij in de gevallen als bedoeld in artikel 5, lid 7.

• 3 De Leden zorgen ervoor dat hun sanitaire en fytosanitaire maatregelen niet leiden tot een willekeurig of ongerechtvaardigd onderscheid tussen Leden in wier landen de omstandigheden gelijk of gelijkaardig zijn, en ook niet tussen hun eigen grondgebied en dat van andere Leden. Sanitaire en fytosanitaire maatregelen mogen niet zo worden toegepast dat zij een verkapte beperking van de internationale handel vormen.

• 4 Sanitaire of fytosanitaire maatregelen die in overeenstemming zijn met de relevante bepalingen van deze Overeenkomst worden geacht in overeenstemming te zijn met de verplichtingen van de Leden op grond van de bepalingen van de GATT 1994 die betrekking hebben op het gebruik van sanitaire of fytosanitaire maatregelen, en met name de bepalingen van artikel XX, b.

Artikel 3. Harmonisatie

• 1 Om ervoor te zorgen dat de sanitaire en fytosanitaire maatregelen op een zo breed mogelijke grondslag worden geharmoniseerd, baseren de Leden hun sanitaire of fytosanitaire maatregelen op internationale normen, richtlijnen of aanbevelingen, voor zover die bestaan, tenzij anders is bepaald in deze Overeenkomst en met name in lid 3.

• 2 Sanitaire of fytosanitaire maatregelen die in overeenstemming zijn met internationale normen, richtlijnen of aanbevelingen worden geacht noodzakelijk te zijn voor de bescherming van het leven of de gezondheid van mens, dier of plant, en worden geacht niet in strijd te zijn met de relevante bepalingen van deze Overeenkomst en van de GATT 1994.

• 3 De Leden hebben het recht sanitaire of fytosanitaire maatregelen in te voeren of toe te passen die resulteren in een hoger niveau van sanitaire of fytosanitaire bescherming dan maatregelen gebaseerd op de relevante internationale normen, richtlijnen of aanbevelingen, als dat wetenschappelijk kan worden verantwoord of dat samenhangt met het niveau van sanitaire of fytosanitaire bescherming dat een Lid adequaat acht overeenkomstig de relevante bepalingen van artikel 5, lid 1 tot en met lid 8224. Desalniettemin mogen maatregelen die resulteren in een ander niveau van sanitaire of fytosanitaire bescherming dan het niveau dat zou resulteren uit maatregelen op grond van internationale normen, richtlijnen of aanbevelingen, niet strijdig zijn met enige andere bepaling van deze Overeenkomst. Desalniettemin mogen maatregelen die resulteren in een ander niveau van sanitaire of fytosanitaire bescherming dan het niveau dat zou resulteren uit maatregelen op grond van internationale normen, richtlijnen of aanbevelingen, niet strijdig zijn met enige andere bepaling van deze Overeenkomst.

• 4 De Leden werken in de relevante internationale organisaties en hun ondersteunende organen, in het bijzonder de Codex Alimentarius Commissie, het Internationaal Bureau voor Besmettelijke Veeziekten (OIE), en de internationale en regionale organisaties in het kader van het Internationaal Verdrag voor de Bescherming van Planten, binnen hun mogelijkheden ten volle mee om in deze organisaties te bevorderen dat normen, richtlijnen en aanbevelingen met betrekking tot alle aspecten van sanitaire en fytosanitaire maatregelen worden opgesteld en periodiek opnieuw worden bekeken.

• 5 De in artikel 12, lid 1 en lid 4, bedoelde Commissie voor sanitaire en fytosanitaire maatregelen (in deze Overeenkomst de „Commissie” genoemd) stelt een procedure op om de internationale harmonisatie te volgen en de inspanningen terzake met de relevante internationale organisaties te coördineren.

Artikel 4. Gelijkwaardigheid

• 1 De Leden aanvaarden de gelijkwaardigheid van de veterinaire of fytosanitaire maatregelen van andere Leden, zelfs als deze maatregelen verschillen van hun eigen maatregelen of van de maatregelen die worden toegepast door andere Leden die in hetzelfde produkt handelen, als het exporterende Lid het importerende Lid objectief aantoont dat zijn maatregelen resulteren in het adequate niveau van sanitaire of fytosanitaire bescherming van het importerende Lid. Daartoe wordt aan het importerende Lid, op diens verzoek, redelijke toegang gegeven wat betreft inspectie, proeven en andere relevante procedures.

• 2 De Leden aanvaarden, op verzoek, overleg met het oog op bilaterale en multilaterale overeenkomsten over de erkenning van de gelijkwaardigheid van gespecificeerde sanitaire of fytosanitaire maatregelen.

Artikel 5. Risico-evaluatie en bepaling van het adequate niveau van sanitaire of fytosanitaire bescherming

• 1 De Leden baseren hun sanitaire of fytosanitaire maatregelen op een aan de omstandigheden beantwoordende evaluatie van de risico's voor het leven of de gezondheid van mens, dier of plant, en houden daarbij rekening met de risico-evaluatiemethoden van de relevante internationale organisaties.

• 2 Bij de evaluatie van de risico's houden de Leden rekening met wetenschappelijk bewijs, relevante produktieprocessen en produktiemethoden, relevante inspectie-, bemonsterings- en beproevingsmethoden, prevalentie van specifieke ziekten of plagen; bestaan van ziekte- of plagenvrije gebieden, relevante omstandigheden wat betreft de ecologische situatie of het milieu, en quarantaineregelingen of andere behandelingen.

• 3 Bij de evaluatie van het risico voor het leven of de gezondheid van dier of plant, en bij de bepaling van de toe te passen maatregel om het adequate niveau van sanitaire of fytosanitaire bescherming tegen een dergelijk risico te bereiken, worden door de Leden als relevante economische factoren in aanmerking genomen: de mogelijke schade in de vorm van verliezen aan produktie of verkoop als een plaag of ziekte wordt binnengebracht, gevestigd raakt of zich verspreidt, de kosten van bestrijding of uitroeiing op het grondgebied van het importerende Lid, en de kosten-batenverhouding van andere methoden om de risico's te beperken.

• 4 De Leden behoren bij het bepalen van het adequate niveau van sanitaire of fytosanitaire bescherming rekening houden met het doel de negatieve effecten op de handel zo klein mogelijk te houden.

• 5 Met het oog op een samenhangende toepassing van het adequate niveau van sanitaire of fytosanitaire bescherming tegen risico's voor het leven of de gezondheid van de mens, dier of plant dient ieder Lid willekeurige of ongerechtvaardigde verschillen in de niveaus die hij in verschillende situaties adequaat acht te vermijden, als die verschillen resulteren in discriminatie of in een verkapte beperking van de internationale handel. De Leden werken, overeenkomstig artikel 12, leden 1, 2 en 3, in de Commissie samen voor het opstellen van richtlijnen om de praktische toepassing van deze bepaling te bevorderen. Bij het opstellen van de richtlijnen houdt de Commissie rekening met alle relevante factoren, waaronder het feit dat mensen slechts bij uitzondering opzettelijk risico's nemen ten aanzien van hun gezondheid.

• 6 Onverminderd het bepaalde in artikel 3, lid 2, zorgen de Leden ervoor dat sanitaire of fytosanitaire maatregelen die door hen vastgesteld of toegepast worden met het oog op hun adequate niveau van sanitaire of fytosanitaire bescherming, de handel niet meer beperken dan nodig is om dat niveau te bereiken; ze houden daarbij rekening met de technische en economische uitvoerbaarheid225.

• 7 Wanneer onvoldoende wetenschappelijk bewijs beschikbaar is, mag een Lid voorlopige sanitaire of fytosanitaire maatregelen vaststellen op grond van de beschikbare relevante gegevens, waaronder gegevens van de betrokken internationale organisaties en gegevens in verband met sanitaire of fytosanitaire maatregelen die worden toegepast door andere Leden. In die situatie moeten de Leden ernaar streven om de bijkomende gegevens te verzamelen die nodig zijn voor een objectievere risico-evaluatie en om de betrokken sanitaire of fytosanitaire maatregel binnen een redelijke termijn dienovereenkomstig opnieuw te bekijken.

• 8 Wanneer een Lid reden heeft om aan te nemen dat een specifieke sanitaire of fytosanitaire maatregel die door een ander Lid is ingevoerd of wordt toegepast, zijn uitvoer beperkt of kan beperken en de betrokken maatregel niet gebaseerd is op de relevante internationale normen, richtlijnen of aanbevelingen of dergelijke normen, richtlijnen of aanbevelingen niet bestaan, mag uitleg over de redenen voor deze sanitaire of fytosanitaire maatregel worden gevraagd en moet het Lid dat de maatregel toepast, die uitleg verstrekken.

Artikel 6. Aanpassing aan de regionale omstandigheden, waaronder ziekte- of plagenvrije gebieden of gebieden met een lage ziekte- of plagenprevalentie

• 1 De Leden zorgen ervoor dat hun sanitaire of fytosanitaire maatregelen aangepast zijn aan de sanitaire of fytosanitaire kenmerken van het gebied, hetzij een land of een gedeelte van een land, hetzij enkele landen of gedeelten van enkele landen, waaruit het produkt afkomstig is en waarvoor het produkt is bestemd. Bij de evaluatie van de sanitaire of fytosanitaire kenmerken van een gebied houden de Leden onder andere rekening met de prevalentie van specifieke ziekten of plagen, eventuele uitroeiings- of bestrijdingsprogramma's en eventuele adequate criteria of richtlijnen van de relevante internationale organisaties.

• 2 De Leden aanvaarden met name de concepten ziekte- of plagenvrije gebieden en gebieden met een lage prevalentie van ziekten of plagen. Dergelijke gebieden worden bepaald aan de hand van factoren zoals geografische situatie, ecosystemen, epidemiologisch toezicht, en doeltreffendheid van sanitaire of fytosanitaire controles.

• 3 Exporterende Leden die stellen dat gebieden binnen hun grondgebied vrij van ziekten of plagen zijn of een lage prevalentie van ziekten of plagen hebben, dienen terzake de nodige bewijzen te leveren om het importerende Lid objectief aan te tonen dat dergelijke gebieden ziekte- of plagenvrije gebieden zijn en waarschijnlijk zullen blijven, respectievelijk gebieden met een lage prevalentie van ziekten of plagen zijn of waarschijnlijk zullen blijven. Daartoe wordt aan het importerende Lid, op diens verzoek, redelijke toegang gegeven wat betreft inspectie, proeven en andere relevante procedures.

Artikel 7. Openheid

De Leden zorgen voor kennisgeving van de wijzigingen in hun sanitaire of fytosanitaire maatregelen en verstrekken gegevens over hun sanitaire of fytosanitaire maatregelen overeenkomstig de bepalingen in Bijlage B.

Artikel 8. Controle-, inspectie- en goedkeuringsprocedures

De Leden houden zich bij de toepassing van controle-, inspectie- en goedkeuringsprocedures, waaronder nationale regelingen voor de goedkeuring van het gebruik van additieven of voor de vaststelling van toleranties voor contaminanten in voedingsmiddelen, drank of diervoeder, aan de bepalingen in bijlage C, en zorgen er ook overigens voor dat hun procedures niet in strijd zijn met de bepalingen van deze Overeenkomst.

Artikel 9. Technische bijstand

• 1 De Leden komen overeen de technische bijstand aan andere Leden, met name Leden die ontwikkelingslanden zijn, te vergemakkelijken hetzij op bilateraal niveau, hetzij via de betrokken internationale organisaties. Dergelijke assistentie kan onder andere worden verleend op het vlak van procestechnologie, onderzoek en infrastructuur, daaronder begrepen de oprichting van nationale regelgevende instanties, en kan worden verleend in de vorm van adviezen, kredieten, schenkingen en subsidies, ook voor het bekostigen van technische deskundigheid, opleidingen en apparatuur om deze landen in staat te stellen zich aan te passen aan het niveau van en uitvoering te geven aan de sanitaire of fytosanitaire maatregelen die nodig zijn om het adequate niveau van sanitaire of fytosanitaire bescherming op hun uitvoermarkten te bereiken.

• 2 Als aanzienlijke investeringen nodig zijn om een Lid dat een uitvoerend ontwikkelingsland is in staat te stellen om te voldoen aan de sanitaire of fytosanitaire eisen van een importerend Lid, dient laatstgenoemd Lid te overwegen om die technische bijstand te verlenen die het ontwikkelingsland in staat stelt zijn markttoegang voor het betrokken produkt te handhaven of te vergroten.

Artikel 10. Bijzondere en afwijkende behandeling

• 1 Bij de voorbereiding en de toepassing van sanitaire of fytosanitaire maatregelen houden de Leden rekening met de bijzondere behoeften van de Leden die ontwikkelingslanden zijn en met name van de Leden die minstontwikkelde landen zijn.

• 2 Wanneer in het kader van het adequate niveau van sanitaire of fytosanitaire bescherming een gefaseerde invoering van nieuwe sanitaire of fytosanitaire maatregelen mogelijk is, behoren langere invoeringstermijnen te worden toegestaan voor produkten die van belang zijn voor Leden die ontwikelingslanden zijn, ten einde hun uitvoermogelijkheden niet te verminderen.

• 3 Om ervoor te zorgen dat Leden die ontwikkelingslanden zijn, in staat zijn om aan de bepalingen van deze Overeenkomst te voldoen, wordt de Commissie gemachtigd deze landen, rekening houdende met de situatie van hun financiën, handel en ontwikkeling, op hun verzoek gespecificeerde en tijdelijke uitzonderingen toe te staan wat betreft alle of een gedeelte van hun verplichtingen op grond van deze Overeenkomst.

• 4 De Leden behoren Leden die ontwikkelingslanden zijn aan te moedigen om actief mee te werken in de betrokken internationale organisaties en hun dit ook te vergemakkelijken.

Artikel 11. Overleg en beslechting van geschillen

• 1 De bepalingen van de artikelen XXII en XXIII van de GATT 1994, zoals uitgewerkt en toegepast in het Memorandum van Overeenstemming inzake Geschillenbeslechting zijn van toepassing op het overleg en de beslechting van geschillen in het kader van deze Overeenkomst, tenzij hierin uitdrukkelijk anders is bepaald.

• 2 Bij een geschil op het gebied van deze Overeenkomst dat handelt over wetenschappelijke of technische kwesties behoort een panel advies te vragen van deskundigen die het kiest in overleg met de partijen bij het geschil. Daartoe kan het panel, wanneer het dit dienstig acht, een adviesgroep van technische deskundigen vormen of de betrokken internationale organisaties raadplegen, een en ander op verzoek van een van de partijen bij het geschil of op zijn eigen initiatief.

• 3 Niets in deze Overeenkomst doet afbreuk aan de rechten van de Leden op grond van andere internationale overeenkomsten, daaronder begrepen het recht om gebruik te maken van de goede diensten of regelingen voor geschillenbeslechting die bestaan in het kader van andere internationale organisaties of als uitvloeisel van een internationale overeenkomst.

Artikel 12. Administratie

• 1 Hierbij wordt als forum voor regelmatig overleg een Commissie voor sanitaire en fytosanitaire maatregelen opgericht. De Commissie vervult de functies die nodig zijn om de uitvoering van de bepalingen van deze Overeenkomst en de doelstellingen daarvan, met name op het vlak van de harmonisatie, te bevorderen. De Commissie beslist bij consensus.

• 2 De Commissie stimuleert en vergemakkelijkt ad hoc-overleg of ad hoc-onderhandelingen tussen de Leden over specifieke sanitaire of fytosanitaire kwesties. De Commissie stimuleert de toepassing van internationale normen, richtlijnen of aanbevelingen door de Leden en verstrekt in dit verband financiële bijdragen voor technisch overleg en onderzoek dat gericht is op sterkere coördinatie en integratie van internationale en nationale regelingen en methodes voor de goedkeuring van het gebruik van voedingsmiddelenadditieven of voor de vaststelling van toleranties voor contaminanten in voedingsmiddelen, drank of diervoeder.

• 3 De Commissie onderhoudt nauwe contacten met de relevante internationale organisaties op het gebied van sanitaire en fytosanitaire bescherming, met name met de Codex Alimentarius Commissie, het Internationaal Bureau voor Besmettelijke Dierziekten, en het Secretariaat van het Internationaal Verdrag voor de Bescherming van Planten, ten einde zich met het oog op het beheer van deze Overeenkomst te verzekeren van de beste wetenschappelijke en technische adviezen die beschikbaar zijn en ervoor te zorgen dat dubbel werk wordt voorkomen.

• 4 De Commissie stelt een procedure op voor het volgen van de internationale harmonisatie en de toepassing van internationale normen, richtlijnen of aanbevelingen. Daartoe behoort de Commissie in samenwerking met de relevante internationale organisaties een lijst op te stellen van internationale normen, richtlijnen of aanbevelingen inzake sanitaire of fytosanitaire maatregelen die volgens haar belangrijke consequenties hebben voor de handel. In deze lijst behoort te worden opgenomen een door de Leden verstrekte opgave van de internationale normen, richtlijnen of aanbevelingen die zij als voorwaarden voor invoer hanteren of op grond waarvan ingevoerde produkten die aan deze normen beantwoorden toegang hebben tot hun markten. Als een Lid een internationale norm, richtlijn of aanbeveling niet als voorwaarde voor invoer toepast, behoort het de reden daarvoor op te geven en met name of het van mening is dat de norm niet streng genoeg is met het oog op het adequate niveau van sanitaire of fytosanitaire bescherming. Als een Lid, na te hebben opgegeven dat het een norm, richtlijn of aanbeveling als voorwaarde voor invoer toepast, zijn standpunt herziet, behoort het zijn veranderde houding toe te lichten en het Secretariaat van de WTO en de relevante internationale organisaties daarvan in kennis te stellen, tenzij de kennisgeving en toelichting gebeuren volgens de procedures in Bijlage B.

• 5 Om dubbel werk te voorkomen, kan de Commissie, zonodig, besluiten de gegevens te gebruiken die beschikbaar komen via de procedures, met name de kennisgevingsprocedures, die worden toegepast bij de relevante internationale organisaties.

• 6 De Commissie kan, op initiatief van een van de Leden, via passende kanalen de relevante internationale organisaties of hun ondersteunende organen verzoeken specifieke punten met betrekking tot een bepaalde norm, richtlijn of aanbeveling te onderzoeken, daaronder begrepen de grondslag van de in het kader van lid 4 verstrekte toelichting waarom een specifieke norm, richtlijn of aanbeveling niet wordt gebruikt.

• 7 De werking en de uitvoering van deze Overeenkomst worden door de Commissie onderzocht drie jaar na de inwerkingtreding van de WTO-Overeenkomst en vervolgens steeds als dat nodig is. De Commissie mag, zonodig, aan de Raad voor de handel in goederen voorstellen voor wijziging van deze Overeenkomst voorleggen; zij houdt daarbij onder andere rekening met de bij de uitvoering opgedane ervaring.

Artikel 13. Uitvoering

Op grond van deze Overeenkomst zijn de Leden ten volle verantwoordelijk voor de naleving van alle hierin vastgelegde verplichtingen. De Leden stellen maatregelen en regelingen vast om te bevorderen dat de bepalingen van deze Overeenkomst ook worden nageleefd door andere instanties dan die van de centrale overheid en geven uitvoering aan deze maatregelen en regelingen. Zij nemen alle redelijke in hun vermogen liggende maatregelen om ervoor te zorgen dat andere instanties op hun grondgebied dan overheidsinstanties, evenals de regionale instanties waartoe de relevante instanties op hun grondgebied behoren, de relevante bepalingen van deze Overeenkomst naleven. Voorts nemen de Leden geen maatregelen die, rechtstreeks of onrechtstreeks, dergelijke regionale instanties of andere instanties dan overheidsinstanties, of plaatselijke overheidsinstanties, verplichten of stimuleren tot handelingen die in strijd zijn met de bepalingen van deze Overeenkomst. De Leden zorgen ervoor dat zij voor de toepassing van sanitaire of fytosanitaire maatregelen alleen andere instanties dan overheidsinstanties inschakelen, als deze instanties de bepalingen van deze Overeenkomst naleven.

Artikel 14. Slotbepalingen

Leden die minstontwikkelde landen zijn mogen voor hun sanitaire of fytosanitaire maatregelen met betrekking tot invoer of ingevoerde produkten de toepassing van de bepalingen van deze Overeenkomst uitstellen tot het zesde jaar na de inwerkingtreding van de WTO-Overeenkomst. Leden die ontwikkelingslanden zijn, mogen de toepassing van de andere bepalingen van deze Overeenkomst dan artikel 5, lid 8, en artikel 7 uitstellen tot het derde jaar na de datum van inwerkingtreding van de WTO-Overeenkomst voor zover het gaat om bestaande sanitaire of fytosanitaire maatregelen met betrekking tot invoer of ingevoerde produkten en voor zover bovenbedoelde bepalingen niet kunnen worden toegepast als gevolg van een tekort aan technische deskundigheid, aan technische infrastructuur of aan middelen.

Bijlage A. DEFINITIES226

1. Sanitaire of fytosanitaire maatregel

– Iedere maatregel die wordt toegepast

• a. om het leven of de gezondheid van dieren of planten binnen het grondgebied van het Lid te beschermen tegen de risico's als gevolg van het binnenbrengen, gevestigd raken of de verspreiding van plagen, ziekten, vectororganismen of pathogene organismen;

• b. om het leven of de gezondheid van mens of dier binnen het grondgebied van het Lid te beschermen tegen de risico's van additieven, contaminanten, toxines of pathogene organismen in levensmiddelen, drank of diervoeder;

• c. om het leven of de gezondheid van de mens binnen het grondgebied van het Lid te beschermen tegen de risico's als gevolg van ziekten met als vector dieren, planten of produkten daarvan, of als gevolg van het binnenbrengen, gevestigd raken of de verspreiding van plagen, of

• d. om andere schade binnen het grondgebied van het Lid als gevolg van het binnenbrengen, gevestigd raken of de verspreiding van plagen te voorkomen of te beperken.

Tot de sanitaire of fytosanitaire maatregelen worden gerekend alle relevante wetten, besluiten, regelingen, eisen en procedures, waaronder, inter alia, criteria voor het eindprodukt; produktieprocessen en -methodes; onderzoek-, inspectie-, certificerings- en goedkeuringsprocedures; quarantaineregelingen, waaronder de eisen aangaande het vervoer van dieren of planten, of de stoffen die nodig zijn voor het overleven van deze dieren of planten tijdens het vervoer; bepalingen inzake relevante statistische methodes, bemonsteringsprocedures en methodes voor risico-evaluatie; eisen inzake verpakking en etikettering die rechtstreeks verband houden met de veiligheid van voedingsmiddelen.

2. Harmonisatie

– De vaststelling, erkenning en toepassing van gemeenschappelijke sanitaire en fytosanitaire maatregelen door verschillende Leden.

3. Internationale normen, richtlijnen en aanbevelingen

• a. wat betreft voedselveiligheid: de normen, richtlijnen en aanbevelingen van de Codex Alimentarius Commissie inzake voedingsmiddelenadditieven, residuen van diergeneesmiddelen en gewasbeschermingsmiddelen, contaminanten, analyse- en bemonsteringsmethodes, en gedrags- codes en richtlijnen voor hygiënische werkwijzen;

• b. wat betreft diergezondheid en zoönosen: de normen, richtlijnen en aanbevelingen die zijn opgesteld onder auspiciën van het Internationaal Bureau voor Besmettelijke Dierziekten;

• c. wat betreft de gezondheid van planten: de internationale normen, richtlijnen en aanbevelingen die zijn opgesteld onder auspiciën van het Secretariaat van het Internationaal Verdrag voor de Bescherming van Planten in samenwerking met de regionale organisaties in het kader van het Internationaal Verdrag voor de Bescherming van Planten, en

• d. wat betreft aangelegenheden die niet onder bovengenoemde organisaties vallen: adequate door de Commissie voor sanitaire en fytosanitaire maatregelen opgegeven normen, richtlijnen en aanbevelingen van andere bevoegde internationale organisaties waarvan het lidmaatschap openstaat voor alle Leden.

4. Risico-evaluatie

– Beoordeling van de waarschijnlijkheid, naargelang van de sanitaire of fytosanitaire maatregelen die zouden kunnen worden toegepast, dat een ziekte of plaag op het grondgebied van een invoerend land wordt binnengebracht, gevestigd raakt of zich verspreidt, alsmede van de mogelijke biologische en economische consequenties daarvan; beoordeling van de mogelijke negatieve effecten op de gezondheid van mens of dier als gevolg van additieven, contaminanten, toxines of pathogene organismen in voedingsmiddelen, drank of diervoeder.

5. Adequaat niveau van sanitaire of fytosanitaire bescherming

– Het niveau van bescherming dat door het Lid dat een sanitaire of fytosanitaire maatregel vaststelt adequaat wordt geacht voor de bescherming van het leven of de gezondheid van mens, dier of plant op zijn grondgebied.

AANTEKENING: Veel Leden duiden dit begrip aan met de term „aanvaardbaar risiconiveau”.

6. Ziekte- of plagenvrij gebied

– Een gebied, hetzij een heel land of een gedeelte van een land, hetzij enkele landen of gedeelten van enkele landen, dat door de bevoegde autoriteiten is gedefinieerd en waarbinnen een bepaalde plaag of ziekte niet voorkomt.

AANTEKENING: Een ziekte- of plagenvrij gebied mag zich uitstrekken rond, omgeven zijn door of grenzen aan een gebied, ongeacht of dit een gedeelte van een land is of een geografisch gebied dat gedeelten van of enkele landen in hun totaliteit omvat, waarvan bekend is dat daar een bepaalde ziekte of plaag voorkomt, maar waarvoor regionale bestrijdingsmaatregelen gelden zoals beschermings-, toezicht- en bufferzones waardoor de verspreiding van de betrokken ziekte of plaag beperkt blijft of deze wordt uitgeroeid.

7. Gebied met een lage prevalentie van ziekten of plagen

– Een gebied, hetzij een land of een gedeelte van een land, hetzij een aantal landen of gedeelten van een aantal landen, dat door de bevoegde autoriteiten is gedefinieerd en waar een bepaalde ziekte of plaag in lage mate voorkomt en waar ten aanzien van de betrokken ziekte of plaag efficiënte maatregelen worden toegepast op het vlak van toezicht, bestrijding of uitroeiing.

Bijlage B. OPENHEID OVER SANITAIRE EN FYTOSANITAIRE REGELINGEN

Bekendmaking van de regelingen

1.

De Leden zorgen ervoor dat alle sanitaire en fytosanitaire regelingen227 die zij vaststellen, onverwijld zo worden bekendgemaakt dat belanghebbende Leden er kennis van kunnen nemen.

2.

Dringende gevallen uitgezonderd, zorgen de Leden ervoor dat er een redelijke termijn ligt tussen de bekendmaking van een sanitaire of fytosanitaire regeling en de inwerkingtreding daarvan, ten einde de producenten in exporterende Leden, en met name in Leden die ontwikkelingslanden zijn, de tijd te geven om hun produkten en produktiemethoden aan te passen aan de eisen van het importerende Lid.

Informatiepunten

3.

Ieder Lid zorgt ervoor dat er één informatiepunt is dat verantwoordelijk is voor het beantwoorden van alle redelijke vragen van belanghebbende Leden en voor het verstrekken van relevante documenten met betrekking tot:

• a. alle voor zijn grondgebied vastgestelde of voorgestelde sanitaire of fytosanitaire regelingen;

• b. alle op zijn grondgebied toegepaste controle- en inspectieprocedures; regelingen voor produktie en quarantaine; procedures voor de vaststelling van toleranties voor gewasbeschermingsmiddelen en goedkeuringsprocedures voor voedingsmiddelenadditieven;

• c. risico-evaluatieprocedures, de factoren waarmee daarbij rekening wordt gehouden, alsmede de vaststelling van het adequate niveau van sanitaire of fytosanitaire bescherming;

• d. het lidmaatschap en de medewerking, anders gezegd de betrokkenheid van het Lid of van bevoegde instanties op zijn grondgebied bij internationale en regionale sanitaire en fytosanitaire organisaties en systemen, alsmede bij bilaterale en multilaterale overeenkomsten en arrangementen op het vlak van deze Overeenkomst, alsmede de teksten van dergelijke overeenkomsten en arrangementen.

4.

De Leden zorgen ervoor dat, als belanghebbende Leden om exemplaren van documenten vragen, deze documenten, in het geval dat daarvoor een prijs wordt gevraagd, worden geleverd tegen dezelfde prijs, afgezien van de verzendkosten, als die welke wordt gevraagd aan de onderdanen228 van het betrokken Lid.

Kennisgevingsprocedures

5.

Als er geen internationale norm, richtlijn of aanbeveling bestaat of een voorgestelde sanitaire of fytosanitaire regeling qua strekking niet nagenoeg gelijk is aan een internationale norm, richtlijn of aanbeveling, en als een regeling aanzienlijke gevolgen kan hebben voor de handel van andere Leden, moeten de Leden

• a. in een vroeg stadium op dusdanige wijze een kennisgeving publiceren dat belanghebbende Leden kennis kunnen nemen van het voorstel om een bepaalde regeling in te voeren;

• b. de andere Leden, via het Secretariaat van de WTO, in kennis stellen van de produkten waarop de regeling betrekking zal hebben en daarbij in het kort het doel en de reden van de voorgestelde regeling aangeven. Deze kennisgevingen moeten worden gedaan in een vroeg stadium, wanneer nog wijzigingen kunnen worden aangebracht en nog rekening kan worden gehouden met opmerkingen;

• c. de andere Leden op hun verzoek exemplaren van de voorgestelde regeling verstrekken en, zo mogelijk, de gedeelten aangeven die op essentiële punten verschillen van internationale normen, richtlijnen of aanbevelingen;

• d. zonder te discrimineren, aan de andere Leden een redelijke termijn geven om schriftelijk opmerkingen te maken, deze opmerkingen, indien daarom wordt verzocht, met hen bespreken en rekening houden met de opmerkingen en de resultaten van de besprekingen.

6.

Als zich voor een Lid dringende problemen op het vlak van gezondheidsbescherming voordoen of dreigen voor te doen, mag dat Lid echter, naar eigen inzicht, een of meer van de in punt 5 van deze Bijlage opgesomde stappen achterwege laten, op voorwaarde dat het

• a. de andere Leden, via het Secretariaat van de WTO, onmiddellijk in kennis stelt van de specifieke regeling en de produkten en daarbij in het kort het doel en de reden van de regeling vermeldt, en ook de aard van het (de) urgente probleem (problemen);

• b. de andere Leden op hun verzoek exemplaren van de regeling verstrekt;

• c. de andere Leden de gelegenheid geeft schriftelijk hun opmerkingen te maken, deze opmerkingen, op hun verzoek, met hen bespreekt en rekening houdt met de opmerkingen en de resultaten van de besprekingen.

7.

De kennisgevingen aan het Secretariaat van de WTO moeten worden opgesteld in het Engels, Frans of Spaans.

8.

Leden die ontwikkelde landen zijn verstrekken, als andere Leden daarom verzoeken, in het Engels, Frans of Spaans, exemplaren of, als het omvangrijke documenten betreft, samenvattingen van de documenten waarover een kennisgeving is gedaan.

9.

Het Secretariaat van de WTO zendt de tekst van de kennisgeving onverwijld aan alle Leden en belanghebbende internationale organisaties en vestigt de aandacht van Leden die ontwikkelingslanden zijn op alle kennisgevingen met betrekking tot produkten die voor hen van bijzonder belang zijn.

10.

De Leden stellen één enkele instantie van de centrale overheid aan die verantwoordelijk is voor de nationale uitvoering van de bepalingen inzake kennisgevingsprocedures overeenkomstig de punten 5, 6, 7 en 8 van deze Bijlage.

Algemene reserves

11.

Niets in deze Overeenkomst mag worden uitgelegd

• a. als een verplichting om details of exemplaren van ontwerp-teksten te verstrekken of teksten bekend te maken in een andere taal dan de taal van het Lid, behoudens het bepaalde in punt 8 van deze Bijlage, of

• b. als een verplichting voor de Leden om vertrouwelijke informatie bekend te maken die de rechtshandhaving wat betreft de sanitaire of fytosanitaire wetgeving zou bemoeilijken of die de rechtmatige handelsbelangen van specifieke bedrijven zou schaden.

Bijlage C. PROCEDURES VOOR CONTROLE, INSPECTIE EN GOEDKEURING229

1.

Wat betreft de procedures om de naleving van sanitaire of fytosanitaire maatregelen te controleren en te waarborgen, zorgen de Leden ervoor

• a. dat deze procedures zonder onnodig tijdverlies worden begonnen en uitgevoerd, op een wijze die voor ingevoerde produkten niet ongunstiger is dan voor soortgelijke binnenlandse produkten;

• b. dat de normale duur van iedere procedure wordt bekendgemaakt of dat, op verzoek van de betrokkene, de verwachte duur van de procedure wordt meegedeeld; dat, wanneer de bevoegde instantie een aanvraag ontvangt, onverwijld wordt onderzocht of de verstrekte documentatie compleet is en de betrokkene nauwkeurig en volledig wordt ingelicht over alle fouten en tekortkomingen; dat de bevoegde instantie de uitkomsten van de procedure zo spoedig mogelijk nauwkeurig en volledig aan de betrokkene meedeelt, zodat, zonodig, voor correcties kan worden gezorgd; dat, zelfs in geval van fouten en tekortkomingen in de aanvraag, de procedure, als de betrokkene dat wenst, door de bevoegde instanties zover mogelijk wordt afgewerkt, en dat, op verzoek van de betrokkene, deze wordt ingelicht over het stadium van de procedure en over eventuele oorzaken van vertraging;

• c. dat slechts inlichtingen worden gevraagd voor zover die nodig zijn voor passende controle-, inspectie- en goedkeuringsprocedures, waaronder procedures voor de goedkeuring van het gebruik van additieven in voedingsmiddelen, drank of diervoeder of voor de vaststelling van toleranties voor contaminanten daarin;

• d. dat de vertrouwelijkheid van informatie over ingevoerde produkten die afkomstig is van of verstrekt is in samenhang met controle, inspectie en goedkeuring, niet minder wordt gerespecteerd dan voor binnenlandse produkten en zo dat rechtmatige handelsbelangen worden beschermd;

• e. dat de eisen in verband met controle, inspectie en goedkeuring van individuele exemplaren van een produkt beperkt blijven tot hetgeen redelijk en noodzakelijk is;

• f. dat eventuele rechten voor de procedures voor ingevoerde produkten billijk zijn in verhouding tot eventuele rechten die in rekening worden gebracht voor soortgelijke binnenlandse produkten of produkten van oorsprong uit het land van andere Leden, met dien verstande dat deze rechten niet hoger behoren te zijn dan de feitelijke kosten;

• g. dat voor zover mogelijk dezelfde criteria worden gebruikt voor de bepaling van de plaats van vestiging van diensten of installaties die worden gebruikt bij procedures en het selecteren van monsters van ingevoerde produkten als bij de bepaling van die plaats voor binnenlandse produkten, zodat de hinder voor aanvragers, invoerders, uitvoerders of hun agenten tot een minimum beperkt blijft;

• h. dat als, nadat een produkt in het kader van de toepasselijke regelingen is gecontroleerd en geïnspecteerd, de specificaties van dit produkt worden gewijzigd, de procedure voor het gewijzigde produkt beperkt blijft tot hetgeen noodzakelijk is om te bepalen of er adequate zekerheid bestaat dat het produkt nog steeds voldoet aan de betrokken regelingen, en

• i. dat er een procedure bestaat voor het onderzoek van klachten over de werking van deze procedures en om corrigerende maatregelen te nemen in geval van een gerechtvaardigde klacht.

Als een Lid dat een land van invoer is een regeling voor de goedkeuring van het gebruik van voedingsmiddelenadditieven of voor de vaststelling van toleranties voor contaminanten in voedingsmiddelen, drank of diervoeder toepast in het kader waarvan de toegang tot zijn interne markt wordt verboden of beperkt voor produkten waarvoor geen goedkeuring is verleend, moet dat Lid overwegen een relevante internationale norm als basis te nemen voor het verlenen van toegang voor produkten totdat een eindbeslissing wordt genomen.

2.

Als een sanitaire of fytosanitaire maatregel voorziet in controle in het produktiestadium, verleent het Lid op wiens grondgebied de produktie plaatsvindt de nodige bijstand om deze controle en het werk van de controlerende instanties te vergemakkelijken.

3.

Niets in deze Overeenkomst belet dat de Leden binnen hun eigen grondgebied redelijke inspecties uitvoeren.

Overeenkomst inzake textiel- en kledingprodukten

De Leden,

Eraan herinnerende dat de Ministers te Punta del Este zijn overeengekomen dat „de onderhandelingen over de textiel- en kledingsector erop gericht dienen te zijn de voorwaarden te formuleren waarop deze sector uiteindelijk op basis van versterkte GATT-regels en -disciplines in de GATT kan worden geïntegreerd, waardoor tevens het doel van een verdere liberalisering van de handel naderbij zal worden gebracht";

Tevens eraan herinnerende dat bij het Besluit van de Commissie Handelsbesprekingen van april 1989 was overeengekomen dat het integratieproces na afsluiting van de multilaterale handelsbesprekingen in het kader van de Uruguay-Ronde moest beginnen en progressief van aard moest zijn;

Voorts eraan herinnerende dat werd overeengekomen dat de Leden die minstontwikkelde landen zijn voor een speciale behandeling in aanmerking moesten komen;

Komen als volgt overeen:

Artikel 1

• 1 Deze Overeenkomst bevat de bepalingen die de Leden tijdens de overgangsperiode voor de integratie van de textiel- en kledingsector in de GATT 1994 dienen toe te passen.

• 2 De Leden komen overeen artikel 2, lid 18 en artikel 6, lid 6, onder b) zo toe te passen dat kleine leveranciers duidelijk meer toegangsmogelijkheden en dat nieuwkomers op het gebied van de handel in textiel en kleding commercieel significante mogelijkheden kunnen verkrijgen.230

• 3 De Leden besteden de nodige aandacht aan de situatie van de Leden die de sinds 1986 gesloten Protocollen tot verlenging van de Internationale Textiel Overeenkomst (in deze Overeenkomst „MVO” genoemd) niet hebben aanvaard en geven deze zoveel mogelijk een speciale behandeling bij de toepassing van het bepaalde in deze Overeenkomst.

• 4 De Leden komen overeen, bij de toepassing van het bepaalde in deze Overeenkomst, rekening te houden met de bijzondere belangen van de katoenproducerende, exporterende Leden, zulks in overleg met deze Leden.

• 5 Met het oog op de integratie van de textiel- en kledingsector in de GATT 1994 dienen de Leden rekening te houden met het continue, autonome proces van industriële aanpassing en de steeds sterkere concurrentie op hun markten.

• 6 Tenzij in deze Overeenkomst anders bepaald, heeft deze geen invloed op de rechten en plichten van Leden op grond van de bepalingen van de WTO-Overeenkomst en de multilaterale handelsovereenkomsten.

• 7 In de bijlage is de lijst opgenomen van de textiel- en kledingprodukten waarop deze Overeenkomst van toepassing is.

Artikel 2

• 1 De gegevens over alle kwantitatieve beperkingen krachtens bilaterale overeenkomsten die op grond van artikel 4 worden toegepast of die op grond van artikel 7 of 8 van de MVO zijn medegedeeld en die van kracht zijn op de dag vóór de inwerkingtreding van de WTO-Overeenkomst, worden door de Leden die deze beperkingen handhaven binnen 60 dagen na deze inwerkingtreding medegedeeld aan het Orgaan Supervisie Textielprodukten (hierna „OST” genoemd) dat bij artikel 8 is ingesteld. Onder meer moeten het niveau van de beperkingen, de groeipercentages en de flexibiliteitsbepalingen worden medegedeeld. De Leden komen overeen dat alle beperkingen tussen de Partijen bij de GATT 1947 die van kracht zijn op de dag vóór de inwerkingtreding van deze Overeenkomst, onder het bepaalde in deze Overeenkomst vallen.

• 2 Het OST doet deze gegevens, ter informatie, aan alle Leden toekomen die hierover, binnen 60 dagen na toezending, bij het OST alle op- en aanmerkingen kunnen maken die zij nuttig achten. Deze op- of aanmerkingen worden, ter informatie, aan alle Leden medegedeeld. Het OST kan, indien het dit nuttig acht, de betrokken Leden aanbevelingen doen.

• 3 Wanneer de twaalfmaandelijkse toepassingsperiode van de beperkingen die op grond van lid 1 worden medegedeeld, niet samenvalt met de periode van twaalf maanden die onmiddellijk aan de inwerkingtreding van de WTO-Overeenkomst voorafgaat, dienen de betrokken Leden, met het oog op de toepassing van dit artikel, in onderling overleg regelingen te treffen om de toepassingsperiode van de beperkingen en het toepassingsjaar van de Overeenkomst 231 met elkaar in overeenstemming te brengen, en om de theoretische basisniveaus voor deze beperkingen vast te stellen. De betrokken Leden komen overeen op verzoek onmiddellijk overleg te plegen ten einde zulke regelingen te treffen. Hierbij dient, onder meer, rekening te worden gehouden met de seizoenstructuur van de leveranties in de laatste jaren. De resultaten van dit overleg worden het OST medegedeeld, die de betrokken Leden de aanbevelingen doet die het dienstig acht.

• 4 De op grond van lid 1 medegedeelde beperkingen worden geacht het totaal te zijn van dit soort beperkingen die door de respectieve Leden worden toegepast op de dag vóór de inwerkingtreding van de WTO-Overeenkomst. Tenzij in deze Overeenkomst of in de GATT 1994 anders bepaald, worden er geen nieuwe beperkingen ten aanzien van produkten of Leden ingevoerd.232 Beperkingen die binnen 60 dagen na de inwerkingtreding van de WTO-Overeenkomst niet zijn medegedeeld, komen onmiddellijk te vervallen.

• 5 Unilaterale maatregelen die op grond van artikel 3 van de MVO zijn genomen vóór de datum van inwerkingtreding van de WTO-Overeenkomst mogen van kracht blijven voor de daarin vermelde duur, die echter niet meer dan 12 maanden mag bedragen, indien deze door het bij de MVO opgerichte Orgaan voor Toezicht op Textielprodukten (in deze Overeenkomst „OTT” genoemd) zijn onderzocht. Mocht het OTT niet in de gelegenheid zijn geweest dergelijke unilaterale maatregelen te onderzoeken, dan worden deze door de OST onderzocht overeenkomstig de regels en procedures die gelden voor maatregelen die op grond van artikel 3 van de MVO zijn genomen. Maatregelen die op grond van artikel 4 van de MVO vóór de datum van inwerkingtreding van de WTO-Overeenkomst zijn toegepast en waarover een geschil bestaat dat het OTT niet heeft kunnen onderzoeken, worden ook door het OST onderzocht overeenkomstig de daarvoor geldende MVO-regels en -procedures.

• 6 Op de datum van inwerkingtreding van de WTO-Overeenkomst integreert ieder Lid in de GATT 1994 de produkten die ten minste 16% uitmaakten van de totale hoeveelheid van de in de bijlage genoemde produkten (per GS-post of -categorie) die het in 1990 heeft ingevoerd. De te integreren produkten omvatten produkten uit elk van de volgende vier groepen: tops en garens, weefsels, geconfectionneerde artikelen en kledingartikelen.

• 7 Volledige gegevens over de op grond van lid 6 te nemen maatregelen, worden door de betrokken Leden als volgt medegedeeld:

  • a. Leden die op grond van lid 1 beperkingen handhaven, verbinden zich ertoe, ongeacht de datum van inwerkingtreding van de WTO-Overeenkomst, deze gegevens het Secretariaat van de GATT uiterlijk mede te delen op de datum vastgesteld bij het Ministeriële Besluit van 15 april 1994. Het Secretariaat van het GATT geeft deze gegevens, ter informatie, aan de andere deelnemers door. Deze gegevens zullen het OST, zodra het is ingesteld, beschikbaar worden gesteld voor de in lid 21 genoemde doeleinden.

  • b. Leden die, op grond van artikel 6, lid 1, het recht hebben behouden van artikel 6 gebruik te maken delen deze gegevens aan het OST mede binnen de 60 dagen na de datum van inwerkingtreding van de WTO-Overeenkomst of, wat de Leden betreft waarop artikel 1, lid 3, van toepassing is, ten laatste aan het einde van de twaalfde maand dat deze Overeenkomst van kracht is. Het OST deelt deze gegevens, ter informatie, aan de andere Leden mede en onderzoekt ze als in lid 21 is aangegeven.

• 8 De overige produkten, dat wil zeggen de produkten die niet op grond van lid 6 hierboven in de GATT 1994 zijn geïntegreerd, worden, per GS-post of -categorie, in drie fasen, als volgt, geïntegreerd:

  • a. Op de eerste dag van de 37e maand dat de WTO-Overeenkomst van kracht is, de produkten die ten minste 17% uitmaakten van de totale hoeveelheid van de in de Bijlage genoemde produkten dat het Lid in 1990 heeft ingevoerd. De door de Leden te integreren produkten omvatten produkten uit elk van de volgende vier groepen: tops en garens, weefsels, geconfectionneerde artikelen en kledingartikelen.

  • b. Op de eerste dag van de 85e maand dat de WTO-Overeenkomst van kracht is, de produkten die ten minste 18% uitmaakten van de totale hoeveelheid van de in de Bijlage genoemde produkten dat het Lid in 1990 heeft ingevoerd. De door de Leden te integreren produkten omvatten produkten uit elk van de volgende vier groepen: tops en garens, weefsels, geconfectionneerde artikelen en kledingartikelen.

  • c. Op de eerste dag van de 121e maand dat de WTO-Overeenkomst van kracht is, is de textiel- en kledingsector geheel in de GATT 1994 geïntegreerd, daar alle beperkingen op grond van deze Overeenkomst dan zullen zijn opgeheven.

• 9 Leden die, op grond van artikel 6, lid 1, hun voornemen bekend hebben gemaakt af te zien van het recht gebruik te maken van het bepaalde in artikel 6, worden, voor de toepassing van deze Overeenkomst, beschouwd hun textiel- en kledingprodukten in de GATT 1994 te hebben geïntegreerd. Deze Leden zijn vrijgesteld van de verplichting het bepaalde in de leden 6 tot en met 8 en 11 in acht te nemen.

• 10 Geen enkele bepaling in deze Overeenkomst vormt een belemmering voor een Lid dat op grond van de leden 6 of 8 een integratieprogramma heeft voorgelegd produkten eerder in de GATT 1994 te integreren dan in een dergelijk programma voorzien. Een dergelijke integratie van produkten wordt van kracht aan het begin van een toepassingsjaar van de overeenkomst, en bijzonderheden hierover worden ten minste drie maanden van tevoren aan het OST medegedeeld, dat deze aan alle Leden doorgeeft.

• 11 Bijzonderheden over de overeenkomstig lid 8 opgestelde integratieprogramma's worden ten minste 12 maanden voor hun inwerkingtreding medegedeeld aan het OST, dat deze aan alle Leden doorgeeft.

• 12 De basisniveaus van de beperkingen die op de in lid 8 bedoelde overige produkten van toepassing zijn, zijn de in lid 1 bedoelde beperkingsniveaus.

• 13 Gedurende de eerste fase van deze Overeenkomst (vanaf de datum van inwerkingtreding van de WTO-Overeenkomst tot en met de 36e maand dat deze van kracht is) wordt het niveau van elke beperking die op grond van bilaterale MVO-overeenkomsten van toepassing was in de periode van twaalf maanden voorafgaande aan de inwerkingtreding van de WTO-Overeenkomst jaarlijks verhoogd met ten minste het groeipercentage dat voor de verschillende beperkingen is vastgesteld, vermeerderd met 16%.

• 14 Tenzij de Raad voor de Handel in Goederen of het Orgaan Geschillenbeslechting op grond van artikel 8, lid 12, anders besluit, wordt het niveau van de overige beperkingen, in de daaropvolgende fasen van deze Overeenkomst elk jaar ten minste als volgt verhoogd:

  • a. in de tweede fase (van de 37e tot en met de 84e maand dat de WTO-Overeenkomst van kracht is), het groeipercentage voor de verschillende beperkingen in de eerste fase, vermeerderd met 25%;

  • b. in de derde fase (van de 85e tot en met de 120e maand dat de WTO-Overeenkomst van kracht is), het groeipercentage voor de verschillende beperkingen in de tweede fase, vermeerderd met 27%.

• 15 Geen enkele bepaling in deze Overeenkomst vormt een belemmering voor een Lid, in de overgangsperiode en met ingang van het begin van een toepassingsjaar van de overeenkomst, beperkingen op te heffen die op grond van dit artikel zijn gehandhaafd, mits het betrokken exporterende Lid en het OST ten minste drie maanden voordat deze opheffing in werking treedt daarvan in kennis worden gesteld. De periode van voorafgaande kennisgeving kan, met de toestemming van het Lid waarop de beperking van toepassing is, tot 30 dagen worden ingekort. Het OST geeft deze kennisgevingen aan alle Leden door. Wordt de opheffing van beperkingen, overeenkomstig dit lid, overwogen, dan houdt het betrokken Lid rekening met de behandeling van soortgelijke export uit andere Leden.

• 16 Voor alle beperkingen die op grond van dit artikel van kracht zijn gelden dezelfde flexibiliteitsbepalingen inzake overboeking, overdracht en vervroegde benutting als die welke, op grond van de bilaterale MVO-overeenkomsten, gelden in de periode van twaalf maanden die aan de inwerkingtreding van de WTO-Overeenkomst voorafgaat. Op de gecombineerde mogelijkheden van overboeking, overdracht en vervroegde benutting worden geen kwantitatieve beperkingen ingesteld of gehandhaafd.

• 17 Administratieve regelingen die met het oog op de uitvoering van enige bepaling in dit artikel noodzakelijk worden geacht, worden tussen de betrokken Leden overeengekomen en aan het OST medegedeeld.

• 18 Bij de inwerkingtreding van de WTO-Overeenkomst en tijdens de looptijd van deze Overeenkomst krijgen Leden, op de export waarvan, op de dag vóór de inwerkingtreding van de WTO-Overeenkomst, beperkingen van toepassing zijn die 1,2% of minder uitmaken van het totale volume van de beperkingen die door een importerend Lid per 31 december 1991 werd toegepast en op grond van dit artikel medegedeeld, duidelijk betere toegangsmogelijkheden voor hun export, door de in de leden 13 en 14 bedoelde groeipercentages met één fase te vervroegen, of door in onderling overleg ten minste gelijkwaardige wijzigingen overeen te komen ten aanzien van een andere samenstelling van basisniveaus, groeipercentages en flexibiliteitsbepalingen. Deze betere toegangsmogelijkheden worden het OST medegedeeld.

• 19 Voert een Lid, tijdens de looptijd van deze Overeenkomst, op grond van artikel XIX van de GATT 1994, een vrijwaringsmaatregel in ten aanzien van een bepaald produkt tijdens het jaar dat onmiddellijk volgt op de integratie van dat produkt in de GATT 1994 overeenkomstig het bepaalde in dit artikel, dan is artikel XIX van toepassing, zoals geïnterpreteerd in de Overeenkomst inzake vrijwaring, behoudens het bepaalde in lid 20.

• 20 Wordt een dergelijke maatregel door middel van niet-tarifaire middelen toegepast, dan past het betrokken importerende Lid de maatregel toe op de in lid 2, onder d. van artikel XIII van de GATT 1994 omschreven wijze op verzoek van elk exporterend Lid, op de export waarvan van het betrokken produkt, op grond van deze Overeenkomst, op een bepaald tijdstip tijdens het onmiddellijk aan de invoering van de vrijwaringsmaatregel voorafgaande jaar beperkingen van toepassing waren. Het betrokken exporterende Lid beheert deze maatregel. Het toe te passen niveau doet de betrokken export niet dalen tot onder het niveau van een recente representatieve periode die normalerwijze het gemiddelde is van de export van het betrokken Lid in de laatste drie representatieve jaren waarover statistieken beschikbaar zijn. Wanneer de vrijwaringsmaatregel langer dan een jaar wordt toegepast, wordt het toe te passen niveau in de toepassingsperiode met regelmatige tussenpozen geleidelijk geliberaliseerd. In dergelijke gevallen maakt het betrokken exporterende Lid geen gebruik van zijn recht vrijwel equivalente concessies of andere verplichtingen te schorsen, zoals voorzien in lid 3, onder a. van artikel XIX van de GATT 1994.

• 21 Het OST ziet toe op de uitvoering van dit artikel. Op verzoek van een Lid zal het elke kwestie in verband met de toepassing van dit artikel onderzoeken. Het deelt binnen de 30 dagen de nodige aanbevelingen of constateringen aan het betrokken Lid of de betrokken Leden mede, na deze(n) tot deelname aan de werkzaamheden te hebben uitgenodigd.

Artikel 3

• 1 Binnen de 60 dagen na de inwerkingtreding van de WTO-Overeenkomst, doen de Leden die beperkingen 233 op textiel- en kledingprodukten handhaven (andere dan die welke op grond van de MVO zijn gehandhaafd en die onder het bepaalde in artikel 2 vallen), of deze nu verenigbaar zijn met de GATT 1994 of niet, het volgende: a. ze delen de bijzonderheden hierover aan het OST mede of, b. ze delen het OST mede welke kennisgevingen hierover aan een ander WTO-orgaan zijn gedaan. Indien van toepassing bevatten deze kennisgevingen informatie over de motivering van deze beperkingen in verband met de GATT 1994, met inbegrip van de bepalingen van de GATT 1994 waarop ze zijn gebaseerd.

• 2 Leden die op grond van lid 1 beperkingen handhaven, behalve die welke op een bepaling van de GATT 1994 zijn gebaseerd,

  • a. brengen deze binnen een jaar na de inwerkingtreding van de WTO-Overeenkomst in overeenstemming met de GATT 1994, en delen dit aan het OST ter informatie mede; of

  • b. schaffen deze geleidelijk af overeenkomstig een programma dat door het Lid dat de beperking handhaaft binnen de zes maanden na de inwerkingtreding van de WTO-Overeenkomst aan het OST wordt voorgelegd. Volgens dit programma worden alle beperkingen geleidelijk afgeschaft over een periode die de duur van deze Overeenkomst niet overschrijdt. Het OST kan het betrokken Lid aanbevelingen doen over dit programma.

• 3 Tijdens de looptijd van deze Overeenkomst doen de Leden het OST, ter informatie, alle kennisgevingen toekomen die zij andere WTO-organen hebben gedaan over nieuwe beperkingen of wijzigingen in de bestaande beperkingen ten aanzien van textiel- en kledingprodukten op grond van een bepaling van de GATT 1994, en dit binnen de 60 dagen na hun inwerkingtreding.

• 4 Elk lid heeft het recht, ter informatie, tegengestelde kennisgevingen aan het OST te doen over de motivering van beperkingen op grond van de GATT 1994 of over beperkingen die niet zouden zijn medegedeeld op grond van dit artikel. Elk Lid kan bij het bevoegde WTO-orgaan een actie instellen ten aanzien van deze kennisgevingen, overeenkomstig de desbetreffende bepalingen of procedures van de GATT 1994.

• 5 Het OST geeft de op grond van dit artikel gedane kennisgevingen ter informatie door aan alle leden.

Artikel 4

• 1 De in artikel 2 bedoelde beperkingen en de beperkingen die op grond van artikel 6 worden toegepast, worden door de exporterende Leden beheerd. De importerende Leden zijn niet verplicht leveringen te aanvaarden die de beperkingen overschrijden waarvan op grond van artikel 2 mededeling is gedaan of die op grond van artikel 6 worden toegepast.

• 2 De Leden komen overeen dat de uitvoering en het beheer van de beperkingen die op grond van deze Overeenkomst zijn medegedeeld of worden toegepast door de invoering van wijzigingen, zoals wijzigingen in de praktijk, regels, procedures of de indeling van textiel- en kledingprodukten, met inbegrip van de wijzigingen die verband houden met het Geharmoniseerd Systeem, het evenwicht tussen rechten en plichten van de betrokken Leden op grond van deze Overeenkomst niet mag verstoren; dat deze wijzigingen evenmin van nadelige invloed mogen zijn op de toegangsmogelijkheden waarover een Lid beschikt en op de volledige benutting van deze toegangsmogelijkheden noch de handel op grond van deze Overeenkomst mogen verstoren.

• 3 De Leden komen overeen dat wanneer een produkt dat slechts deel uitmaakt van een beperking op grond van artikel 2 voor integratie wordt aangemeld, een eventuele wijziging in het niveau van die beperking het evenwicht tussen de rechten en plichten van de betrokken Leden op grond van deze Overeenkomst niet mag verstoren.

• 4 De Leden komen overeen dat, wanneer de in de leden 2 en 3 genoemde wijzigingen noodzakelijk zijn, het Lid dat deze wijzigingen invoert het betrokken Lid of de betrokken Leden daarvan in kennis stelt en vóór de inwerkingtreding van deze wijzigingen zo mogelijk overleg pleegt met het getroffen Lid of de getroffen Leden, ten einde een voor alle partijen bevredigende oplossingen te vinden over passende en billijke aanpassingen. De Leden komen voorts overeen dat wanneer het niet mogelijk is vóór de inwerkingtreding van de wijziging overleg te plegen, het Lid dat deze wijziging invoert, op verzoek van het getroffen Lid, zo mogelijk binnen 60 dagen overleg zal plegen met de betrokken Leden om een voor alle partijen bevredigende oplossing te vinden over passende en billijke aanpassingen. Wordt geen voor alle partijen bevredigende oplossing gevonden, dan kan een betrokken Lid de zaak aan het OST voorleggen dat, overeenkomstig artikel 8, aanbevelingen kan doen. Mocht het OTT geen gelegenheid hebben gehad een geschil over dergelijke wijzigingen te onderzoeken die voor de inwerkingtreding van de WTO-Overeenkomst zijn ingevoerd, dan wordt de zaak door het OST onderzocht overeenkomstig de desbetreffende MVO-regels en -procedures.

Artikel 5

• 1 De Leden komen overeen dat ontduiking van de regels door middel van overlading, wederverzending, valse verklaringen over het land of de plaats van oorsprong en vervalsing van officiële documenten de uitvoering van deze Overeenkomst tot integratie van de textiel- en kledingsector in de GATT 1994 in de weg staat. De Leden dienen derhalve de nodige wettelijke voorschriften en/of administratieve procedures vast te stellen om ontduiking van de regels te voorkomen en te bestrijden. Voorts komen de leden overeen dat zij overeenkomstig hun nationale wetten en procedures volledig zullen samenwerken om de problemen die uit ontduiking voortvloeien op te lossen.

• 2 Is een Lid van oordeel dat de regels van deze Overeenkomst worden ontdoken door overlading, wederverzending, valse verklaringen inzake het land of de plaats van oorsprong of de vervalsing van officiële documenten en dat geen of onvoldoende maatregelen worden genomen om hiertegen op te treden, dan pleegt dat Lid overleg met het betrokken Lid of de betrokken Leden om een voor alle partijen bevredigende oplossing te vinden. Een dergelijk overleg dient terstond plaats te vinden, en indien mogelijk, binnen de 30 dagen. Wordt geen oplossing gevonden die voor alle partijen bevredigend is, dan kan de kwestie door een betrokken Lid aan het OST voor een aanbeveling worden voorgelegd.

• 3 De Leden komen overeen, overeenkomstig hun nationale wetten en procedures, de nodige maatregelen te nemen om ontduikingspraktijken op hun grondgebied te voorkomen en te onderzoeken en daartegen, zo nodig, wettelijke en/of administratieve maatregelen te nemen. De Leden komen overeen in gevallen van ontduiking of vermoede ontduiking van de regels van deze Overeenkomst, overeenkomstig hun nationale wetten en procedures, volledig samen te werken om de ter zake dienende feiten op de plaatsen van invoer, uitvoer en, wanneer van toepassing, overlading vast te stellen. Overeengekomen wordt dat deze samenwerking, overeenkomstig nationale wetten en procedures, onder meer het volgende omvat: onderzoek naar de ontduikingspraktijken die de beperkte export naar het Lid dat deze beperkingen handhaaft doen toenemen; uitwisseling van documenten, brieven, verslagen en andere relevante gegevens voor zover beschikbaar; het vergemakkelijken van bezoeken aan fabrieken en van contacten, op verzoek en per geval. De Leden streven ernaar de omstandigheden waarin ontduiking plaatsvindt of wordt vermoed zoveel mogelijk op te helderen, met inbegrip van de rol die de betrokken exporteurs of importeurs hierbij spelen.

• 4 De Leden komen overeen dat wanneer na onderzoek genoegzaam bewezen is dat ontduiking heeft plaatsgevonden (bijv. wanneer er bewijsmateriaal is betreffende het land of de plaats van de werkelijke oorsprong, en de omstandigheden waarin de ontduiking plaatsvindt), voor zover noodzakelijk passende maatregelen dienen te worden genomen om het probleem op te lossen. Deze maatregelen kunnen bestaan uit een verbod op de invoer van de goederen of, wanneer de goederen reeds zijn ingevoerd en gelet op de werkelijke omstandigheden en de betrokkenheid van het land of de plaats van werkelijke oorsprong, een aanpassing van de afboekingen van de beperkingsniveaus van het land of de plaats van werkelijke oorsprong. Voorts, indien gebleken is dat Leden op het grondgebied waarvan de goederen zijn overgeladen ook bij de ontduiking zijn betrokken, kunnen de maatregelen ook de invoering inhouden van beperkingen ten aanzien van die Leden. Deze maatregelen kunnen worden genomen, evenals de en besluiten over het tijdstip waarop zij worden genomen en de draagwijdte ervan, na overleg tussen de betrokken partijen ten einde een voor beide partijen bevredigende oplossing te vinden en worden met een volledige motivatie aan het OST voorgelegd. De betrokken Leden kunnen in overleg overeenstemming bereiken over andere oplossingen. De overeengekomen oplossing wordt ook aan het OST voorgelegd en het OST kan de betrokken Leden de aanbevelingen doen die het nuttig acht. Wordt geen wederzijds bevredigende oplossing gevonden, dan kan een betrokken Lid de zaak voor een spoedig onderzoek en aanbevelingen aan het OST voorleggen.

• 5 De Leden nemen er nota van dat sommige gevallen van ontduiking zendingen kunnen betreffen die via landen of plaatsen worden vervoerd zonder dat er in de plaatsen van doorvoer iets veranderd wordt aan de goederen die zich in deze zendingen bevinden. Ze nemen er nota van dat het in het algemeen niet praktisch uitvoerbaar kan zijn dat in deze doorvoerplaatsen toezicht op dergelijke zendingen wordt uitgeoefend.

• 6 De Leden komen overeen dat valse verklaringen inzake vezelsamenstelling, hoeveelheden, aard of indeling van de goederen eveneens een beletsel vormen om de doelstellingen van deze overeenkomst te bereiken. De Leden komen overeen dat, wanneer blijkt dat dergelijke valse verklaringen zijn opgesteld met het doel de regels te ontduiken, de nodige maatregelen tegen de betrokken exporteurs of importeurs genomen dienen te worden, overeenkomstig de nationale wetten en procedures. Mocht een Lid van oordeel zijn dat de regels van de Overeenkomst door middel van dergelijke valse verklaringen worden ontdoken en dat geen of onvoldoende maatregelen worden genomen om hiertegen op te treden, dan kan dat Lid terstond overleg plegen met het betrokken Lid om te trachten tot een voor beide partijen bevredigende oplossing te komen. Wordt zulk een oplossing niet gevonden, dan kan de zaak door een betrokken Lid aan het OST voor een aanbeveling worden voorgelegd. Deze bepaling heeft niet ten doel te voorkomen dat Leden technische aanpassingen aanbrengen indien per vergissing fouten zijn gemaakt bij het opstellen van verklaringen.

Artikel 6

• 1 De Leden erkennen dat het tijdens de overgangsperiode nodig kan zijn speciale vrijwaringsmaatregelen (in deze Overeenkomst „overgangsvrijwaringsmaatregelen” genoemd) te nemen. De overgangsvrijwaringsmaatregelen kunnen door een Lid worden toegepast op produkten die onder de Bijlage vallen, met uitzondering van de produkten die op grond van artikel 2 in de GATT 1994 zijn geïntegreerd. De Leden die geen beperkingen op grond van artikel 2 handhaven, delen het OST binnen 6O dagen na de datum van inwerkingtreding van de WTO-Overeenkomst mede of zij het recht wensen te behouden de bepalingen van dat artikel toe te passen. De Leden die de Protocollen tot verlenging van de MVO die sinds 1986 tot stand zijn gekomen niet hebben aanvaard, doen een dergelijke mededeling binnen zes maanden na de inwerkingtreding van de WTO-Overeenkomst. De overgangsvrijwaringsmaatregelen dienen zo min mogelijk te worden toegepast, overeenkomstig het bepaalde in dit artikel en de daadwerkelijke integratie op grond van deze Overeenkomst.

• 2 Vrijwaringsmaatregelen kunnen op grond van dit artikel worden genomen wanneer een Lid heeft vastgesteld 234 dat gebleken is dat een bepaald produkt in zulke toegenomen hoeveelheden in zijn gebied wordt ingevoerd dat de bedrijfstak in het binnenland die een soortgelijk en/of rechtstreeks concurrerend produkt vervaardigt daardoor ernstige schade lijdt of dreigt te lijden. Ernstige schade of dreigende ernstige schade moet aantoonbaar worden veroorzaakt door de toegenomen hoeveelheid van de totale invoer van dat produkt en niet door andere factoren zoals technologische veranderingen en veranderingen in consumentenvoorkeur.

• 3 Bij de vaststelling van ernstige schade of dreigende ernstige schade als bedoeld in lid 2, onderzoekt het Lid de gevolgen van deze invoer op de situatie van de betrokken bedrijfstak die tot uiting komt in de wijziging van economische variabelen zoals produktie, produktiviteit, benuttingsgraad, voorraden, marktaandeel, export, lonen, werkgelegenheid, prijzen op de binnenlandse markt, winsten en investeringen, waarvan geen enkele, op zich genomen of in combinatie met andere, noodzakelijkerwijs doorslaggevend is.

• 4 Maatregelen die op grond van dit artikel worden genomen worden per Lid toegepast. Of een Lid of Leden ernstige schade veroorzaken of dreigen te veroorzaken wordt vastgesteld aan de hand van de plotselinge en sterk stijgende invoer uit dat bepaalde Lid of die bepaalde Leden, welke invoer reeds heeft plaatsgevonden of die in de onmiddellijk toekomst dreigt plaats te vinden235, zoals blijkt uit het niveau van de invoer in vergelijking met de invoer uit andere bronnen, marktaandeel, importprijzen en prijzen op de binnenlandse markt op een vergelijkbaar handelsniveau, waarbij geen van deze factoren, op zich of in combinatie met andere, noodzakelijkerwijs doorslaggevend is. Deze vrijwaringsmaatregelen worden niet genomen ten aanzien van de export van een Lid die op grond van deze Overeenkomst reeds aan beperkingen is onderworpen.

• 5 De vaststelling van ernstige schade of dreigende ernstige schade met het oog op het nemen van vrijwaringsmaatregelen is niet meer dan 90 dagen geldig vanaf de in lid 7 bedoelde datum van eerste kennisgeving.

• 6 Bij de toepassing van overgangsvrijwaringsmaatregelen, wordt met name rekening gehouden met de belangen van exporterende Leden als hieronder aangegeven:

  • a. De Leden die minstontwikkelde landen zijn krijgen een aanmerkelijk gunstiger behandeling, bij voorkeur op alle onderdelen maar ten minste in het algemeen, dan de andere in dit punt genoemde groepen.

  • b. De Leden waarvan het totale exportvolume van textiel- en kledingprodukten gering is in vergelijking met het totale volume van de export van andere Leden en die slechts een klein percentage van de totale import van dat produkt in het importerende Lid voor hun rekening nemen, krijgen een gedifferentieerde en gunstiger behandeling bij het vaststellen van de economische termen als bedoeld in de leden 8, 13 en 14. Voor deze leveranciers zal met name rekening worden gehouden, gelet op de leden 2 en 3 van artikel 1, met de toekomstige ontwikkelingsmogelijkheden van hun handel en de noodzaak hen commercieel betekenisvolle invoerhoeveelheden toe te staan.

  • c. Bij het vaststellen van het niveau van de contingenten, van groeipercentages en flexibiliteitsbepalingen wordt speciale aandacht geschonken aan de behoeften aan export van wolprodukten van wolproducerende ontwikkelingslanden die Lid zijn, waarvan de economie en de textiel- en kledinghandel van de wolsector afhankelijk zijn, waarvan de totale textiel- en kledingexport vrijwel uitsluitend uit wolprodukten bestaat en die een relatief klein aandeel van de textiel- en kledingmarkt van de importerende Leden in handen hebben.

  • d. Een gunstiger behandeling wordt toegestaan aan de wederinvoer door een Lid van textiel- en kledingprodukten die dat Lid naar een ander Lid heeft uitgevoerd voor bewerking en wederinvoer, in de zin van de wetten en praktijken van het importerende Lid, mits bij deze wederinvoer deugdelijke controle- en certificatieprocedures worden gevolgd, wanneer deze produkten worden geïmporteerd uit een Lid waarvoor dit soort handel een aanmerkelijk aandeel van zijn totale export van textiel- en kledingprodukten vertegenwoordigt.

• 7 Het Lid dat voornemens is vrijwaringsmaatregelen te nemen, vraagt overleg aan met het Lid of de Leden die door deze maatregelen getroffen zouden worden. Het verzoek om overleg gaat vergezeld van zo recent mogelijke, specifieke en ter zake dienende feitelijke informatie, met name ten aanzien van: a. de in lid 3 genoemde factoren op grond waarvan het Lid dat maatregelen wenst te nemen het bestaan van ernstige schade of dreigende ernstige schade heeft afgeleid, en b. de in lid 4 genoemde factoren op grond waarvan het voornemens is vrijwaringsmaatregelen te nemen ten aanzien van het betrokken Lid of de betrokken Leden. De informatie in verzoeken om overleg op grond van dit lid heeft zo veel mogelijk betrekking op duidelijk afgebakende produktiesegmenten en de in lid 8 genoemde referentieperiode. Het Lid dat maatregelen voorstelt geeft ook aan tot welk niveau het voornemens is de invoer van het betrokken produkt uit het betrokken Lid of de betrokken Leden te beperken; dit niveau mag niet lager zijn dan het in lid 8 bedoelde niveau. Het Lid dat om overleg verzoekt deelt dit ook mede aan de Voorzitter van het OST, onder opgave van alle feitelijke gegevens als in de leden 3 en 4 vermeld en het voorgestelde niveau van de beperking. De Voorzitter deelt het verzoek om overleg aan de Leden van het OST mede, onder opgave van het Lid dat het verzoek heeft gedaan, het betrokken produkt en het Lid dat het verzoek heeft ontvangen. Het betrokken Lid of de betrokken Leden beantwoord(t)(en) dit verzoek zo spoedig mogelijk. Het overleg vindt zonder uitstel plaats en wordt normalerwijze binnen 60 dagen na de ontvangst van het verzoek afgesloten.

• 8 Indien bij het overleg overeenstemming wordt bereikt over het feit dat de export van het betrokken produkt uit het betrokken Lid of de betrokken Leden moet worden beperkt, wordt de export niet teruggebracht tot een lager niveau dan het niveau van de import uit het betrokken Lid in de periode van 12 maanden die twee maanden voor de indiening van het verzoek om overleg is verstreken.

• 9 Gegevens over de overeengekomen beperkingsmaatregel worden het OST binnen 60 dagen na sluiting van de Overeenkomst medegedeeld. Het OST bepaalt of de Overeenkomst met dit artikel verenigbaar is. Het OST beschikt in verband hiermee over de feitelijke gegevens die de Voorzitter overeenkomstig lid 7 werden medegedeeld alsmede over alle andere ter zake dienende informatie die de betrokken Leden hebben verstrekt. Het OST kan de betrokken Leden de aanbevelingen doen die het dienstig acht.

• 10 Indien de Leden 60 dagen nadat het verzoek om overleg werd ontvangen geen overeenstemming hebben bereikt, kan het Lid dat de vrijwaringsmaatregelen heeft voorgesteld, binnen de 30 dagen na de periode van 60 dagen die voor het overleg was voorbehouden, de beperking volgens de datum van import of export toepassen, overeenkomstig het bepaalde in dit artikel, en de zaak aan het OST voorleggen. Het staat elk van beide Leden vrij de zaak vóór het verstrijken van bedoelde periode van 60 dagen aan het OST voor te leggen. In beide gevallen onderzoekt het OST de zaak zo spoedig mogelijk, met inbegrip van de vaststelling van ernstige schade of dreigende ernstige schade en de oorzaken daarvan, en doet het de betrokken Leden binnen de 30 dagen passende aanbevelingen. Bij de uitvoering van het onderzoek beschikt het OST over de feitelijke gegevens die de Voorzitter van het OST, overeenkomstig lid 7, werden medegedeeld alsmede over alle andere ter zake dienende informatie die de betrokken Leden hebben verstrekt.

• 11 In zeer uitzonderlijke en kritische omstandigheden waarin uitstel moeilijk te herstellen schade zou kunnen veroorzaken, kunnen overeenkomstig lid 10 voorlopige maatregelen worden genomen, voor zover het verzoek om overleg en de kennisgeving aan het OST binnen vijf werkdagen nadat de maatregelen zijn genomen worden ingediend. Wordt bij het overleg geen overeenstemming bereikt, dan wordt het OST daarvan bij afsluiting van het overleg in kennis gesteld, en in elk geval binnen de 60 dagen nadat de maatregelen werden genomen. Het OST onderzoekt de zaak zo spoedig mogelijk en doet de betrokken Leden binnen de 30 dagen passende aanbevelingen. Wordt bij overleg wel overeenstemming bereikt, dan stellen de Leden het OST hiervan bij afsluiting van het overleg in kennis, en in elk geval binnen de 90 dagen nadat de maatregelen werden genomen. Het OST kan de betrokken Leden de aanbevelingen doen die het dienstig acht.

• 12 Een Lid kan de maatregelen die op grond van dit artikel zijn genomen handhaven: a. voor ten hoogste drie jaar, zonder verlenging, of b. tot het produkt in de GATT 1994 is geïntegreerd, indien dit eerder is.

• 13 Blijft de beperkingsmaatregel meer dan een jaar van kracht, dan is het niveau voor de volgende jaren het niveau van het eerste jaar vermeerderd met een groeipercentage van niet minder dan 6% per jaar, tenzij het OST kan worden aangetoond dat een ander percentage gerechtvaardigd is. Het beperkingsniveau voor het betrokken produkt mag in een van elke twee daaropvolgende jaren door vervroegde benutting en/of overdracht met 10% worden overschreden, waarbij de vervroegde benutting niet meer dan 5% mag bedragen. Op het gecombineerde gebruik van overdracht, vervroegde benutting en van het bepaalde in lid 14 worden geen kwantitatieve beperkingen gesteld.

• 14 Wanneer een Lid op meer dan één produkt van een ander Lid, op grond van dit artikel, beperkingen stelt, mag het niveau van de overeengekomen beperking, op grond van het bepaalde in dit artikel, voor elk van deze produkten met 7% worden overschreden, mits de totale export waarop beperkingen van toepassing zijn niet hoger is dan het totale niveau voor alle produkten waarop op grond van dit artikel beperkingen van toepassing zijn, op basis van overeengekomen gemeenschappelijke eenheden. Wanneer de perioden waarin beperkingen van toepassing zijn niet geheel met elkaar samenvallen, wordt deze bepaling naar evenredigheid op de overlappende perioden toegepast.

• 15 Worden op grond van dit artikel vrijwaringsmaatregelen toegepast op een produkt waarop voorheen, in de periode van twaalf maanden vóór de inwerkingtreding van de WTO-Overeenkomst, op grond van de MVO of op grond van artikel 2 of artikel 6 een beperking van toepassing was, dan is het niveau van de nieuwe beperking het in lid 8 bedoelde niveau, tenzij de nieuwe beperking in werking treedt binnen één jaar na:

  • a. de in artikel 2, lid 15, bedoelde datum van kennisgeving van de opheffing van de vroegere beperking; of

  • b. de datum van opheffing van de vroegere beperking op grond van het bepaalde in dit artikel of in de MVO,

    in welke gevallen het niveau niet lager is dan het hoogste van de twee hiernagenoemde niveaus: i) het niveau van de beperking in de laatste twaalfmaandelijkse periode waarin het produkt aan een beperking was onderworpen, ii) het in lid 8 bedoelde beperkingsniveau.

• 16 Wanneer een Lid dat geen beperkingen handhaaft op grond van artikel 2 besluit op grond van het bepaalde in dit artikel een beperking toe te passen, stelt het passende regelingen vast waarbij a. volledig rekening wordt gehouden met factoren zoals tariefindeling en kwantitatieve eenheden bij normale commerciële import- en exportpraktijken, zowel wat vezelsamenstelling betreft als in termen van concurrentie op hetzelfde segment van de binnenlandse markt, en b. een te ver doorgevoerde categorisering wordt vermeden. Het in lid 7 of lid 11 bedoelde verzoek om overleg bevat alle gegevens over dergelijke regelingen.

Artikel 7

• 1 Als onderdeel van het integratieproces en overeenkomstig de specifieke afspraken tussen Leden als resultaat van de Uruguay-Ronde, nemen alle Leden de nodige maatregelen om de regels en disciplines van de GATT 1994 in acht te nemen, zodat:

  • a. de markten meer toegankelijk worden voor textiel- en kledingprodukten door maatregelen zoals verlaging en consolidatie van douanerechten, vermindering of opheffing van niet-tarifaire belemmeringen, en vereenvoudiging van douaneformaliteiten, administratieve formaliteiten en de formaliteiten voor de afgifte van vergunningen;

  • b. het beleid ten aanzien van billijke handelsvoorwaarden voor textiel- en kledingprodukten op het gebied van bijv. dumping en anti-dumpingregels en -procedures, subsidies en compenserende maatregelen en de bescherming van intellectuele-eigendomsrechten kan worden uitgevoerd; en

  • c. bij de invoer van textiel- en kledingprodukten geen discriminatie plaatsvindt wanneer om algemene handelspolitieke overwegingen maatregelen worden genomen.

    Deze maatregelen doen geen afbreuk aan de rechten en plichten van de Leden op grond van de GATT 1994.

• 2 De Leden stellen het OST in kennis van de in lid 1 bedoelde maatregelen die van invloed zijn op de uitvoering van deze Overeenkomst. Indien deze reeds aan andere WTO-organen zijn medegedeeld, is een samenvatting van de oorspronkelijke kennisgeving voldoende om aan de eisen van dit lid te voldoen. Het staat de Leden vrij tegengestelde kennisgevingen aan het OST te doen.

• 3 Indien een Lid van oordeel is dat een ander Lid door het niet-nemen van de in lid 1 bedoelde maatregelen het evenwicht tussen rechten en plichten op grond van deze Overeenkomst heeft verstoord, kan eerstgenoemd Lid de zaak aan de desbetreffende WTO-organen voorleggen en het OST daarvan in kennis stellen. De bevindingen en conclusies van de betrokken WTO-organen vormen een onderdeel van het algemene verslag van het OST.

Artikel 8

• 1 Hierbij wordt het Orgaan Supervisie Textielprodukten („OST”) ingesteld dat tot taak heeft toe te zien op de uitvoering van deze Overeenkomst, de maatregelen op grond van deze Overeenkomst en de overeenstemming van deze maatregelen met de Overeenkomst te onderzoeken, en alle taken te vervullen waarmee het op grond van deze Overeenkomst speciaal is belast. Het OST bestaat uit een voorzitter en tien leden. De samenstelling van het OST is evenwichtig, grotendeels representatief voor de Leden en zitting in het OST wordt om toerbeurten waargenomen. De leden van het OST worden benoemd door de Leden die door de Raad voor de Handel in Goederen zijn aangewezen om zitting te hebben in het OST waarin zij hun functies op persoonlijke titel uitoefenen.

• 2 Het OST ontwikkelt zijn eigen werkmethoden, met dien verstande dat consensus in het OST niet afhangt van de toestemming of goedkeuring van leden die benoemd zijn door Leden die bij een niet-geregeld geschil zijn betrokken dat door het OST wordt onderzocht.

• 3 Het OST wordt als een permanent orgaan beschouwd en komt zo vaak bijeen als nodig is om de taken te vervullen waarmee het op grond van deze Overeenkomst is belast. Het baseert zich hierbij op informatie die Leden op grond van de relevante artikelen van deze Overeenkomst verstrekken en alle nadere inlichtingen en noodzakelijke verduidelijkingen die deze Leden kunnen mededelen of die het OST kan opvragen. Het OST kan zich ook baseren op mededelingen en verslagen van andere WTO-organen en andere bronnen indien het dit nuttig acht.

• 4 De Leden geven elkaar voldoende gelegenheid voor overleg over alle kwesties die met de uitvoering van deze Overeenkomst verband houden.

• 5 Wordt bij bilateraal overleg op grond van deze Overeenkomst geen oplossing gevonden waarmee beide partijen kunnen instemmen, dan doet het OST, op verzoek van een van de Leden, en na een prompt en diepgaand onderzoek van de kwestie, aanbevelingen aan de betrokken Leden.

• 6 Op verzoek van een Lid onderzoekt het OST zo spoedig mogelijk een kwestie die dit Lid met zijn belangen op grond van deze Overeenkomst strijdig acht en waarover bij overleg met het betrokken Lid of de betrokken Leden geen wederzijds bevredigende oplossing kon worden gevonden. Het OST maakt de betrokken Leden in dergelijke zaken alle opmerkingen die het dienstig acht, alsmede met het oog op het in lid 11 bedoelde onderzoek.

• 7 Alvorens aanbevelingen te doen of opmerkingen te maken, nodigt het OST de Leden uit die rechtstreeks bij de zaak betrokken kunnen zijn.

• 8 Wanneer het OST aanbevelingen of vaststellingen moet doen, doet het dit bij voorkeur binnen een termijn van 30 dagen, tenzij in deze Overeenkomst een andere termijn is bepaald. Deze aanbevelingen en vaststellingen worden aan de rechtstreeks betrokken Leden medegedeeld. Tevens worden deze, ter informatie, aan de Raad voor de Handel in Goederen medegedeeld.

• 9 De Leden streven ernaar de aanbevelingen van het OST volledig te aanvaarden. Het OST ziet toe op de uitvoering van deze aanbevelingen.

• 10 Indien een Lid van oordeel is dat het de aanbevelingen van het OST niet kan opvolgen, dan deelt dit Lid de redenen hiervan binnen een maand na de ontvangst van deze aanbevelingen mede. Na een grondig onderzoek van de opgegeven redenen, doet het OST de verdere aanbevelingen die het dan dienstig acht. Indien het probleem na mededeling van deze verdere aanbevelingen onopgelost blijft, kan een van beide Leden de zaak voor het Orgaan voor Geschillenbeslechting brengen en zich daarbij beroepen op lid 2 van artikel XXIII van de GATT 1994 en de desbetreffende bepalingen van het Memorandum van Overeenstemming inzake de Beslechting van geschillen.

• 11 De Raad voor de Handel in Goederen oefent toezicht uit op de uitvoering van deze Overeenkomst en voert in verband hiermee vóór het einde van elke integratiefase een diepgaand onderzoek uit. Het OST doet de Raad voor de Handel in Goederen met het oog op dit onderzoek, ten minste vijf maanden voor het einde van iedere fase, een algemeen verslag toekomen over de uitvoering van deze Overeenkomst gedurende de te onderzoeken fase, met name wat het verloop van het integratieproces betreft, de toepassing van overgangsvrijwaringsmaatregelen en de toepassing van de regels en disciplines van de GATT 1994 als respectievelijk in de artikelen 2, 3, 6 en 7 omschreven. Het OST kan in het algemeen verslag de aanbevelingen aan de Raad voor de Handel in Goederen opnemen die het dienstig acht.

• 12 In het licht van dit onderzoek neemt de Raad voor de Handel in Goederen bij consensus de door hem dienstig geachte besluiten tot handhaving van het evenwicht tussen rechten en plichten zoals in deze Overeenkomst voorzien. Voor de regeling van geschillen over de in artikel 7 bedoelde kwesties, kan het Orgaan Geschillenbeslechting een aanpassing toestaan van artikel 2, lid 14, voor de fase die op het onderzoek volgt, onverminderd de in artikel 9 genoemde einddatum, ten aanzien van alle Leden waarvan wordt vastgesteld dat zij hun verplichtingen op grond van deze Overeenkomst niet nakomen.

Artikel 9

Deze Overeenkomst en alle beperkingen op grond van deze Overeenkomst worden beëindigd op de eerste dag van de 121e maand dat de WTO-Overeenkomst van kracht is, op welke dag de textiel- en kledingsector volledig in de GATT 1994 zal zijn geïntegreerd. Deze Overeenkomst kan niet worden verlengd.

Bijlage LIJST VAN PRODUKTEN WAAROP DEZE OVEREENKOMST BETREKKING HEEFT

1.

Deze bijlage geeft de lijst van textiel- en kledingprodukten volgens de zescijfercodes van het Geharmoniseerde Systeem voor de Omschrijving en Codering van Goederen (GS).

2.

Maatregelen op grond van de vrijwaringsbepalingen van artikel 6 worden ten aanzien van bepaalde textiel- en kledingprodukten genomen en niet noodzakelijkerwijs ten aanzien van een bepaalde GS-post.

3.

Maatregelen op grond van de vrijwaringsbepalingen van artikel 6 van de Overeenkomst zijn niet van toepassing op:

• a. weefsels uit Leden die ontwikkelingslanden zijn, die in de huisindustrie op manueel bediende getouwen zijn vervaardigd, op produkten die in de huisindustrie uit dergelijke weefsels zijn vervaardigd, en op traditionele, folkloristische, ambachtelijk vervaardigde textiel- en kledingprodukten, mits deze vergezeld gaan van certificaten zoals in overeenkomsten tussen de betrokken Leden bepaald;

• b. traditioneel verhandelde textielprodukten waarvan de internationale handel vóór 1982 van commerciële betekenis was, zoals tassen, zakken, tapijtruggen, touwwerk, bagages, matten en tapijten die kenmerkend van vezels zoals jute, kokos, sisal, abaca, maguey en henequen worden vervaardigd;

• c. produkten van zuivere zijde.

  Voor dergelijke produkten zijn de bepalingen van artikel XIX van de GATT 1994, zoals bij de Overeenkomst inzake Vrijwaringsmaatregelen geïnterpreteerd, van toepassing.

Produkten die onder Afdeling XI (Textielstoffen en textielwaren) van het Geharmoniseerde Systeem voor de Omschrijving en Codering van Goederen (GS-nomenclatuur) vallen

GS-nr.	Omschrijving
Hfdst. 50	Zijde
5004.00	Garens van zijde (andere dan garens van zijdeafval), niet opgemaakt voor de verkoop in het klein
5005.00	Garens van afval van zijde, niet opgemaakt voor de verkoop in het klein
5006.00	Garens van zijde&zijdeafval, opgemaakt voor de verkoop in het klein; poil de Messine
5007.10	Weefsels van bourrette
5007.20	Weefsels van zijde&zijdeafval, andere dan bourrette, >/=85% zijde/zijdeafval
5007.90	Weefsels van zijde, niet elders genoemd
Hfdst. 51	Wol, fijn/grof haar, garens en weefsels van paardehaar
5105.10	Gekaarde wol
5105.21	Gekamde wol in bulk
5105.29	Tops van wol en andere gekamde wol, andere dan gekamde wol in bulk
5105.30	Fijn haar, gekaard of gekamd
5106.10	Kaardgaren van wol,>/=85% gewicht aan wol, niet opg.voor verkoop in het klein
5106.20	Kaardgaren van wol,<85% gewicht aan wol, niet opg.voor verkoop in het klein
5107.10	Kamgaren van wol,>/=85% gewicht aan wol, niet opg. voor verkoop in het klein
5107.20	Kamgaren van wol,<85% gewicht aan wol, niet opg. voor verkoop in het klein
5108.10	Garens van gekaard fijn haar, niet opg.voor verkoop in het klein
5108.20	Garens van gekamd fijn haar, niet opg.voor verkoop in het klein
5109.10	Garens van wol/fijn haar, >/=85% gewicht aan zulke vezels, opg. voor verkoop in het klein
5109.90	Garens van wol/fijn haar, <85% gewicht aan zulke vezels, opg. voor verkoop in het klein
5110.00	Garens van grof haar of paardehaar
5111.11	Weefsels van gekaarde wol/fijn haar,>/=85% aan gewicht,</=300 g/m2
5111.19	Weefsels van gekaarde wol/fijn haar,>/=85% aan gewicht,>300 g/m2
5111.20	Weefsels van gekaarde wol/fijn haar, >/=85% aan gew., met synth.fil.gemengd
5111.30	Weefsels van gekaarde wol/fijn haar, >/=85% aan gew., met synth.vez.gemengd
5111.90	Weefsels van gekaarde wol/fijn haar, >/= 85% aan gew., niet elders gen.
5112.11	Weefsels van gekamde wol/fijn haar,>/=85% aan gewicht,</=200 g/m2
5112.19	Weefsels van gekamde wol/fijn haar,>/=85% aan gewicht,>200 g/m2
5112.20	Weefsels van gekamde wol/fijn haar,<85% aan gew., met synth.fil.gemengd
5112.30	Weefsels van gekamde wol/fijn haar,<85% aan gew., met synth.vez.gemengd
5112.90	Weefsels van gekamde wol/fijn haar, <85% aan gewicht, niet elders gen.
5113.00	Weefsels van grof haar of van paardehaar
Hfdst. 52	Katoen
5204.11	Naaigarens van katoen >/=85% gewicht aan katoen, niet opg.voor verkoop in het klein
5204.19	Naaigarens van katoen,<85% gewicht aan katoen, niet opg.voor verkoop in het klein
5204.20	Naaigarens van katoen, opgemaakt voor verkoop in het klein
5205.11	Garens van katoen,>/=85%,eendraadsgarens, niet-gekamd,>/=714.29 dtex, niet opg. voor de verkoop in het klein
5205.12	Garens van katoen,>/=85%,eendraadsgarens, niet-gekamd, 714.29 >dtex>/=232.56, niet opg. voor de verkoop in het klein
5205.13	Garens van katoen,>/=85%,eendraadsgarens, niet-gekamd, 232.56>dtex>/=192.31, niet opg. voor verkoop in het klein
5205.14	Garens van katoen,>/=85%,eendraadsgarens, niet-gekamd, 192.31 >dtex>/=125, niet opg. voor verkoop in het klein
5205.15	Garens van katoen,>/=85%,eendraadsgarens, niet-gekamd,<125 dtex, niet opg. voor verkoop in het klein
5205.21	Garens van katoen,>/=85%, eendraadsgarens, gekamd,>/=714.29, niet opg. voor verkoop in het klein
5205.22	Garens van katoen,>/=85%,eendraadsgarens, gekamd, 714.29 >dtex>/=232.56, niet opg. voor verkoop in het klein
5205.23	Garens van katoen,>/=85%, eendraadsgarens, gekamd, 232.56 >dtex>/=192.31, niet opg. voor verkoop in het klein
5205.24	Garens van katoen,>/=85%, eendraadsgarens, gekamd, 192.31 >dtex>/=125, niet opg. voor verkoop in het klein
5205.25	Garens van katoen,>/=85%,eendraadsgarens, gekamd, <125 dtex, niet opg.voor verkoop in het klein
5205.31	Garens van katoen,>/=85%, getwijnd, niet-gekamd, >/=714.29 dtex, niet opg. voor verkoop in het klein, niet elders gen.
5205.32	Garens van katoen,>/=85%,getwijnd, niet-gekamd, 714.29 >dtex>/=232.56, niet opg. voor verkoop in het klein, niet elders gen.
5205.33	Garens van katoen,>/=85%,getwijnd, niet-gekamd, 232.56 >dtex>/=192.31, niet opg. voor verkoop in het klein, niet elders gen.
5205.34	Garens van katoen,>/=85%,getwijnd, niet-gekamd, 192.31 >dtex>/=125, niet opg. voor verkoop in het klein, niet elders gen.
5205.35	Garens van katoen,>/=85%,getwijnd, niet-gekamd, <125 dtex, niet opg. voor verkoop in het klein, niet elders gen.
5205.41	Garens van katoen,>/=85%, getwijnd, gekamd,>/=714.29 dtex, niet opg. voor verkoop in het klein, niet elders gen.
5205.42	Garens van katoen,>/=85%,getwijnd, gekamd, 714.29 >dtex>/=232.56, niet opg. voor verkoop in het klein, niet elders gen.
5205.43	Garens van katoen,>/=85%,getwijnd, gekamd, 232.56 >dtex>/=192.31, niet opg. voor verkoop in het klein, niet elders gen.
5205.44	Garens van katoen,>/=85%,getwijnd, gekamd, 192.31 >dtex>/=125, niet opg. voor verkoop in het klein, niet elders gen.
5205.45	Garens van katoen,>/=85%, getwijnd, gekamd, <125 dtex, niet opg. voor verkoop in het klein, niet elders gen.
5206.11	Garens van katoen, <85%, eendraadsgarens, niet-gekamd,>/=714.29, niet opg. voor verkoop in het klein
5206.12	Garens van katoen, <85%, eendraadsgarens, niet-gekamd, 714.29 >dtex>/=232.56, niet opg. voor verkoop in het klein
5206.13	Garens van katoen, <85%, eendraadsgarens, niet-gekamd, 232.56 >dtex>/=192.31, niet opg. voor verkoop in het klein
5206.14	Garens van katoen, <85%, eendraadsgarens, niet-gekamd, 192.31 >dtex>/=125, niet opg. voor verkoop in het klein
5206.15	Garens van katoen,<85%,eendraadsgarens, niet-gekamd,<125 dtex, niet opg.voor verkoop in het klein
5206.21	Garens van katoen, <85%, eendraadsgarens, gekamd,>/=714.29 dtex, niet opg. voor verkoop in het klein
5206.22	Garens van katoen, <85%, eendraadsgarens, gekamd, 714.29 >dtex>/=232.56, niet opg. voor verkoop in het klein
5206.23	Garens van katoen, <85%, eendraadsgarens, gekamd, 232.56 >dtex>/=192.31, niet opg. voor verkoop in het klein
5206.24	Garens van katoen, <85%, eendraadsgarens, gekamd, 192.31 >dtex>/=125, niet opg. voor verkoop in het klein
5206.25	Garens van katoen,<85%,eendraadsgarens, gekamd,<125 dtex, niet opg.voor verkoop in het klein
5206.31	Garens van katoen, <85%, getwijnd, niet-gekamd, >/=714.29, niet opg. voor verkoop in het klein, niet elders gen.
5206.32	Garens van katoen,<85%,getwijnd, niet-gekamd, 714.29 >dtex>/=232.56, niet opg. voor verkoop in het klein, niet elders gen.
5206.33	Garens van katoen,<85%,getwijnd, niet-gekamd, 232.56 >dex>/=192.31, niet opg. voor verkoop in het klein, niet elders gen.
5206.34	Garens van katoen,<85%,getwijnd, niet-gekamd, 192.31 >dtex>/=125, niet opg. voor verkoop in het klein, niet elders gen.
5206.35	Garens van katoen, <85%, getwijnd, niet-gekamd, <125 dtex, niet opg. voor verkoop in het klein, niet elders gen.
5206.41	Garens van katoen, <85%, getwijnd, gekamd,>/=714.29, niet opg. voor verkoop in het klein, niet elders gen.
5206.42	Garens van katoen,<85%,getwijnd, gekamd, 714.29 >dtex>/=232.56, niet opg. voor verkoop in het klein, niet elders gen.
5206.43	Garens van katoen,<85%,getwijnd, gekamd, 232.56 >dtex>/=192.31, niet opg. voor verkoop in het klein, niet elders gen.
5206.44	Garens van katoen,<85%,getwijnd, gekamd, 192.31 >dtex>/=125, niet opg. voor verkoop in het klein, niet elders gen.
5206.45	Garens van katoen, <85%, getwijnd, gekamd, <125 dtex, niet opg. voor verkoop in het klein, niet elders gen.
5207.10	Garens van katoen (andere dan naaigarens)>/=85% gewicht aan katoen, opg. voor verkoop in het klein
5207.90	Garens van katoen (andere dan naaigarens) <85% gew. aan katoen, opg. voor de verkoop in het klein
5208.11	Weefsels van katoen met platbinding,>/=85%, niet meer dan 100 g/m2, ongebleekt
5208.12	Weefsels van katoen met platbinding,>/=85%, >100 g/m2 to 200 g/m2, ongebleekt
5208.13	Weefsels van katoen met keperbinding,>/=85%, niet meer dan 200 g/m2, ongebleekt
5208.19	Weefsels van katoen,>/=85%, niet meer dan 200 g/m2, ongebleekt, niet elders gen.
5208.21	Weefsels van katoen met platbinding,>/=85%, niet meer dan 100 g/m2, gebleekt
5208.22	Weefsels van katoen met platbinding,>/=85%, >100 g/m2 to 200 g/m2, gebleekt
5208.23	Weefsels van katoen met keperbinding,>/=85%, niet meer dan 200 g/m2, gebleekt
5208.29	Weefsels van katoen,>/=85%, niet meer dan 200 g/m2, gebleekt, niet elders gen.
5208.31	Weefsels van katoen met platbinding,>/=85%, niet meer dan 100 g/m2, geverfd
5208.32	Weefsels van katoen met platbinding,>/=85%,>100g/m2= to 200g/m=, geverfd
5208.33	Weefsels van katoen met keperbinding,>/=85%, niet meer dan 200 g/m2, geverfd
5208.39	Weefsels van katoen,>/=85%, niet meer dan 200 g/m2, geverfd, niet elders gen.
5208.41	Weefsels van katoen met platbinding,>/=85%, niet meer dan 100 g/m2, gekl.garen
5208.42	Weefsels van katoen met platbinding,>/=85%, >100 g/m2 tot 200 g/m2, gekl.garen
5208.43	Weefsels van katoen met keperbinding,>/=85%, niet meer dan 200 g/m2, gekl.garen
5208.49	Weefsels van katoen,>/=85%,niet meer dan 200 g/m2, gekl.garen, niet elders gen.
5208.51	Weefsels van katoen met platbinding,>/=85%, niet meer dan 100 g/m2, bedrukt
5208.52	Weefsels van katoen met platbinding,>/=85%, >100 g/m2 tot 200 g/m2, bedrukt
5208.53	Weefsels van katoen met keperbinding,>/=85%, niet meer dan 200 g/m2, bedrukt
5208.59	Weefsels van katoen,>/=85%, niet meer dan 200 g/m2, bedrukt, niet elders gen.
5209.11	Weefsels van katoen met platbinding,>/=85%, meer dan 200 g/m2, ongebleekt
5209.12	Weefsels van katoen met keperbinding,>/=85%, meer dan 200 g/m2, ongebleekt
5209.19	Weefsels van katoen,>/=85%,meer dan 200 g/m2, ongebleekt, niet elders gen.
5209.21	Weefsels van katoen met platbinding,>/=85%, meer dan 200 g/m2, gebleekt
5209.22	Weefsels van katoen met keperbinding,>/=85%, meer dan 200 g/m2, gebleekt
5209.29	Weefsels van katoen,>/=85%, meer dan 200 g/m2, gebleekt, niet elders gen.
5209.31	Weefsels van katoen met platbinding,>/=85%, meer dan 200 g/m2, geverfd
5209.32	Weefsels van katoen met keperbinding,>/=85%, meer dan 200 g/m2, geverfd
5209.39	Weefsels van katoen,>/=85%, meer dan 200 g/m2, geverfd, niet elders gen.
5209.41	Weefsels van katoen met platbinding,>/=85%, meer dan 200 g/m2, gekl.garen
5209.42	Denim weefsels van katoen,>/=85%, meer dan 200 g/m2
5209.43	Weefsels van katoen met keperbinding, andere dan denim,>/=85%,meer dan 200 g/m2, gekl.garen
5209.49	Weefsels van katoen,>/=85%, meer dan 200 g/m2, gekl. garen, niet elders gen.
5209.51	Weefsels van katoen met platbinding,>/=85%, meer dan 200 g/m2, bedrukt
5209.52	Weefsels van katoen met keperbinding,>/=85%, meer dan 200 g/m2, bedrukt
5209.59	Weefsels van katoen,>/=85%, meer dan 200 g/m2, bedrukt, niet elders gen.
5210.11	Weefsels van katoen met keperbinding, <85% met kunstvez.gem., niet meer dan 200 g/m2, ongebl.
5210.12	Weefsels van katoen met keperbinding,<85% met kunstvez.gem., niet meer dan 200 g/m2, ongebl.
5210.19	Weefsels van katoen,<85% met kunstvez.gem.,</=200 g/m2, ongebl., niet elders gen.
5210.21	Weefsels van katoen met platbinding, <85% met kunstvez.gem., niet meer dan 200 g/m2, gebl.
5210.22	Weefsels van katoen met keperbinding,<85% met kunstvez.gem., niet meer dan 200 g/m2, gebl.
5210.29	Weefsels van katoen,<85% met kunstvez.gem.,</=200 g/m2, gebl., niet elders gen.
5210.31	Weefsels van katoen met platbinding,<85% met kunstvez.gem., niet meer dan 200 g/m2, geverfd
5210.32	Weefsels van katoen met keperbinding,<85% met kunstvez.gem., niet meer dan 200 g/m2, geverfd
5210.39	Weefsels van katoen,<85% met kunstvez.gem.,</=200 g/m2, geverfd, niet elders gen.
5210.41	Weefsels van katoen met platbinding,<85% met kunstvez.gem., niet meer dan 200g/m2, versch.gekl.garen
5210.42	Weefsels van katoen met keperbinding,<85% met kunstvez.gem., niet meer dan 200g/m2, versch.gekl.garen
5210.49	Weefsels van katoen,<85% met kunstsvez.gem.,</=200g/m2, versch.gekl.garen, niet elders gen.
5210.51	Weefsels van katoen met platbinding,<85% met kunstvez.gem., niet meer dan 200 g/m2, bedrukt
5210.52	Weefsels van katoen met keperbinding,<85% met kunstvez.gem., niet meer dan 200g/m2, bedrukt
5210.59	Weefsels van katoen,<85% met kunstvez.gem.,</=200g/m2, bedrukt, niet elders gen.
5211.11	Weefsels van katoen met platbinding,<85% met kunstvez.gem., meer dan 200 g/m2, ongebl.
5211.12	Weefsels van katoen met keperbinding,<85% met kunstvez.gem., meer dan 200 g/m2, ongebl.
5211.19	Weefsels van katoen,<85% met kunstvez.gem., meer dan 200g/m2, ongebl., niet elders gen.
5211.21	Weefsels van katoen met platbinding,<85% met kunstvez.gem., meer dan 200 g/m2, gebl.
5211.22	Weefsels van katoen met keperbinding,<85% met kunstvez.gem., meer dan 200 g/m2, gebl.
5211.29	Weefsels van katoen,<85% met kunstvez.gem., meer dan 200 g/m2, gebl., niet elders gen.
5211.31	Weefsels van katoen met platbinding,<85% met kunstvez.gem., meer dan 200 g/m2, geverfd
5211.32	Weefsels van katoen met keperbinding,<85% met kunstvez.gem., meer dan 200 g/m2, geverfd
5211.39	Weefsels van katoen,<85% met kunstvez.gem., meer dan 200 g/m2, geverfd, niet elders gen.
5211.41	Weefsels van katoen met platbinding,<85% met kunstvez.gem., meer dan 200 g/m2, versch.gekl.garens
5211.42	Denim weefsels van katoen, <85% met kunstvez.gem., meer dan 200 g/m2
5211.43	Weefsels van katoen met keperbinding, andere dan denim,<85% met kunstvez.gem.,>200g/m2, versch.gekl. garens
5211.49	Weefsels van katoen,<85% met kunstvez.gem.,>200 g/m2, versch.gekl.garen, niet elders gen.
5211.51	Weefsels van katoen met platbinding,<85% met kunstvez.gem., meer dan 200 g/m2, bedrukt
5211.52	Weefsels van katoen met keperbinding,<85% met kunstvez.gem., meer dan 200 g/m2, bedrukt
5211.59	Weefsels van katoen,<85% met kunstvez.gem., meer dan 200g/m2, bedrukt, niet elders gen.
5212.11	Weefsels van katoen, niet meer dan 200 g/m2, ongebl., niet elders gen.
5212.12	Weefsels van katoen, niet meer dan 200 g/m2, gebl., niet elders gen.
5212.13	Weefsels van katoen, niet meer dan 200 g/m2, geverfd, niet elders gen.
5212.14	Weefsels van katoen,</=200g/m2, versch.gekl.garens, niet elders gen.
5212.15	Weefsels van katoen, niet meer dan 200 g/m2, bedrukt, niet elders gen.
5212.21	Weefsels van katoen, meer dan 200 g/m2, ongebl., niet elders gen.
5212.22	Weefsels van katoen, meer dan 200 g/m2, gebl., niet elders gen.
5212.23	Weefsels van katoen, meer dan 200 g/m2, geverfd, niet elders gen.
5212.24	Weefsels van katoen, >200 g/m2, versch.gekl.garens, niet elders gen.
5212.25	Weefsels van katoen, meer dan 200 g/m2, bedrukt, niet elders gen.
Hfdst. 53	Andere plantaardige vezels; papiergarens en weefsels daarvan
5306.10	Garens van vlas, eendraadsgarens
5306.20	Garens van vlas, getwijnd of gekabeld
5307.10	Garens van jute of van andere bastvezels, eendraadsgarens
5307.20	Garens van jute of van andere bastvezels, getwijnd of gekabeld
5308.20	Garens van hennep
5308.90	Garens van andere plantaardige vezels
5309.11	Weefsels, bevattende 85% of meer gewichtsperc. vlas, ongebl. of gebl.
5309.19	Weefsels, bevattende 85% of meer gewichtsperc.vlas, andere dan ongebl. of gebl.
5309.21	Weefsels, bevattende <85% gewichtsperc.vlas, ongebl. of gebl.
5309.29	Weefsels, bevattende <85% gewichtsperc.vlas, andere dan ongebl. of gebl.
5310.10	Weefsels van jute of van andere bastvezels, ongebl.
5310.90	Weefsels van jute of van andere bastvezels, andere dan ongebl.
5311.00	Weefsels van andere plantaardige vezels; weefsels van papiergarens
Hfdst. 54	Synthetische of kunstmatige filamenten
5401.10	Naaigarens van synthetische filamenten
5401.20	Naaigarens van kunstmatige filamenten
5402.10	Garens met hoge sterktegraad (andere dan naaigarens), van nylon of andere polyamiden, niet opg. voor verkoop in het klein
5402.20	Garens met hoge sterktegraad (andere dan naaigarens), van polyesters, niet opg. voor verkoop in het klein
5402.31	Getext.garens, niet elders gen., van nylon of andere polyamiden, </=50tex/enkelv.draad,niet opg. voor verkoop in het klein
5402.32	Getext.garens, niet elders gen., van nylon of andere polyamiden, >=50tex/enkelv.draad,niet opg. voor verkoop in het klein
5402.33	Getext.garens, niet elders gen., van polyesters, niet opg. voor verkoop in het klein
5402.39	Getext.garens van synthetische filamenten, niet elders gen., niet opg. voor verkoop in het klein
5402.41	Garens van nylon of andere polyamiden, eendraads, niet-getwist, niet elders gen., niet opg. voor verkoop in het klein
5402.42	Garens van polyesters, gedeeltelijk verstrekt, eendraads, niet elders gen., niet opg. voor verkoop in het klein
5402.43	Garens van polyesters, eendraads, niet-getwist, niet elders gen., niet opg. voor verkoop in het klein
5402.49	Garens van synthetische filamenten, eendraads, niet-getwist, niet elders gen., niet opg. voor verkoop in het klein
5402.51	Garens van nylon of andere polyamiden, eendraads, met een twist van >50 toeren/m, niet opg. voor verkoop in het klein
5402.52	Garens van polyesters, eendraads, met een twist van >50 toeren/m, niet opg. voor verkoop in het klein
5402.59	Garens van synthetische filamenten, eendraads,met een twist van >50 toeren/m, niet elders gen., niet opg. voor verkoop in het klein
5402.61	Garens van nylon of andere polyamiden, getwijnd, niet elders gen., niet opg. voor verkoop in het klein
5402.62	Garens van polyesters, getwijnd, niet elders gen., niet opg. voor verkoop in het klein
5402.69	Garens van synthetische filamenten, getwijnd, niet elders gen., niet opg. voor verkoop in het klein
5403.10	Garens met hoge sterktegraad (andere dan naaigarens), van viscoserayon, niet opg. voor verkoop in het klein
5403.20	Getext. garens niet elders gen., van kunstmatige filamenten, niet opg.voor verkoop in het klein
5403.31	Garens van viscoserayon, eendraads, niet-getwist, niet elders gen., niet opg. voor verkoop in het klein
5403.32	Garens van viscoserayon, eendraads,>120 toeren/m, niet elders gen., niet opg. voor verkoop in het klein
5403.33	Garens van celluloseacetaat, eendraads, niet elders gen., niet opg. voor verkoop in het klein
5403.39	Garens van kunstmatige filamenten, eendraads, niet elders gen., niet opg. voor verkoop in het klein
5403.41	Garens van viscoserayon, getwijnd, niet elders gen., niet opg. voor verkoop in het klein
5403.42	Garens van celluloseacetaat, getwijnd, niet elders gen., niet opg. voor verkoop in het klein
5403.49	Garens van kunstmatige filamenten, getwijnd, niet elders gen., niet opg. voor verkoop in het klein
5404.10	Synthetische monofil.,>/=67dtex, grootste dwarsdoorsnede niet meer dan 1mm
5404.90	Strippen e.d. van synth.mat. met een schijnb.breedte van niet meer dan 5mm
5405.00	Kunstm.monofil., 67 dtex, dwarsdoorsn.>1mm; strippen van kunstmat. </=5mm
5406.10	Garens van synth.filamenten (andere dan naaigarens), opg.voor verkoop in klein
5406.20	Garens van kunstm.filamenten (andere dan naaigarens), opg.voor verkoop in klein
5407.10	Weefsels van fil.garens met hoge sterktegraad van nylon of andere polyamiden/polyesters
5407.20	Weefsels vervaardigd uit strips e.d. van synth.mat.
5407.30	Weefsels bedoeld bij Aant.9 Hfdst. XI (parallelle lagen synth.garens)
5407.41	Weefsels,>/=85% van nylon/andere polyamiden, ongebl. or gebl., niet elders gen.
5407.42	Weefsels,>/=85% van nylon/andere polyamiden, geverfd, niet elders gen.
5407.43	Weefsels,>/=85% van nylon/andere polyamiden, gekl.garen, niet elders gen.
5407.44	Weefsels,>/=85% van nylon/andere polyamiden, bedrukt, niet elders gen.
5407.51	Weefsels,>/=85% van getext. polyesterfil., ongebl. or gebl., niet elders gen.
5407.52	Weefsels,>/=85% van getext. polyesterfil., geverfd, niet elders gen.
5407.53	Weefsels,>/=85% van getext. polyesterfil., gekl.garen, niet elders gen.
5407.54	Weefsels,>/=85% van getext. polyesterfil., bedrukt, niet elders gen.
5407.60	Weefsels,>/=85% van niet-getext. polyesterfil., niet elders gen.
5407.71	Weefsels,>/=85% van synth. filamenten, ongebl. or gebl., niet elders gen.
5407.72	Weefsels,>/=85% van synth. filamenten, geverfd, niet elders gen.
5407.73	Weefsels,>/=85% van synth. filamenten, gekl.garen, niet elders gen.
5407.74	Weefsels,>/=85% van synth. filamenten, bedrukt, niet elders gen.
5407.81	Weefsels van synth.fil.,<85% gem.m katoen, ongebl. of gebl., niet elders gen.
5407.82	Weefsels van synth.fil.,<85% gem.m katoen, geverfd, niet elders gen.
5407.83	Weefsels van synth.fil.,<85% gem.m katoen, garens geverfd, niet elders gen.
5407.84	Weefsels van synth.fil.,<85% gem.m katoen, bedrukt, niet elders gen.
5407.91	Weefsels van synth.fil., ongebl. of gebl., niet elders gen.
5407.92	Weefsels van synth.fil., geverfd, niet elders gen.
5407.93	Weefsels van synth.fil., gekl.garen, niet elders gen.
5407.94	Weefsels van synth.fil., bedrukt, niet elders gen.
5408.10	Weefsels van fil.garens van viscoserayon met hoge sterktegraad
5408.21	Weefsels,>/=85% van kunstm.fil. of strippen van kunstmat.textielst., ongebl./gebl., niet elders gen.
5408.22	Weefsels,>/=85% van kunstm.fil. of strippen van kunstmat.textielst., niet elders gen.
5408.23	Weefsels,>/=85% van kunstm.fil. of strippen van kunstmat. textielst.,versch.gekl.garens, niet elders gen.
5408.24	Weefsels,>/=85% van kunstm.fil. of strippen van kunstmat. textielst., bedrukt, niet elders gen.
5408.31	Weefsels van kunstmatige filamenten, ongebl. or gebl., niet elders gen.
5408.32	Weefsels van kunstmatige filamenten, geverfd, niet elders gen.
5408.33	Weefsels van kunstmatige filamenten, gekl.garen, niet elders gen.
5408.34	Weefsels van kunstmatige filamenten, bedrukt, niet elders gen.
Hfdst. 55	Synth. of kunstm. vezels
5501.10	Kabel van nylon- of andere polyamidefil.
5501.20	Kabel van polyesterfil.
5501.30	Kabel van acryl- of modacrylfil.
5501.90	Kabel van synth. filamenten, niet elders gen.
5502.00	Kabel van kunstm. filamenten
5503.10	Stapelvezels van nylon of andere polyamiden, niet gekaard of gekamd
5503.20	Stapelvezels van polyesters, niet gekaard of gekamd
5503.30	Stapelvezels van acryl of modacryl, niet gekaard of gekamd
5503.40	Stapelvezels of polypropyleen, niet gekaard of gekamd
5503.90	Synth. stapelvezels, niet gekaard of gekamd, niet elders gen.
5504.10	Stapelvezels van viscose, niet gekaard of gekamd
5504.90	Kunstmat. stapelvezels, andere dan viscose, niet gekaard of gekamd
5505.10	Afval van synth. fibres
5505.20	Afval van kunstmat. fibres
5506.10	Stapelvezels van nylon of andere polyamiden, gekaard of gekamd
5506.20	Stapelvezels van polyesters, gekaard of gekamd
5506.30	Stapelvezels van acryl of modacryl, gekaard of gekamd
5506.90	Synth. stapelvezels, gekaard of gekamd, niet elders gen.
5507.00	Kunstmat. stapelvezels, gekaard of gekamd
5508.10	Naaigarens van synth. stapelvezels
5508.20	Naaigarens van kunstmat. stapelvezels
5509.11	Garens,>/=85% stapelvezels van nylon of andere polyamiden, eendraads, niet opg. voor verkoop in het klein
5509.12	Garens,>/=85% stapelvezels van nylon of andere polyamiden, getwijnd, niet opg. voor verkoop in het klein, niet elders gen.
5509.21	Garens,>/=85% van polyester stapelvezels, eendraads, niet opg. voor verkoop in het klein
5509.22	Garens,>/=85% van polyester stapelvezels, getwijnd, niet opg. voor verkoop in het klein, niet elders gen.
5509.31	Garens,>/=85% stapelvezels van acryl of modacryl, eendraads, niet opg. voor verkoop in het klein
5509.32	Garens,>/=85% acryl/modacryl stapelvezels, getwijnd, niet opg. voor verkoop in het klein, niet elders gen.
5509.41	Garens,>/=85% van andere synth. stapelvezels, eendraads, niet opg. voor verkoop in het klein
5509.42	Garens,>/=85% van andere synth. stapelvezels, getwijnd, niet opg. voor verkoop in het klein, niet elders gen.
5509.51	Garens van polyester stapelvezels gem.m/ kunstm.stapelvez., niet opg. voor verkoop in het klein, niet elders gen.
5509.52	Garens van polyester stapelvez. gem.m wol/fijn haar, niet opg. voor verkoop in het klein, niet elders gen.
5509.53	Garens van polyester stapelvezels gem.m katoen, niet opg. voor verkoop in het klein, niet elders gen.
5509.59	Garens van polyester stapelvezels, niet opg. voor verkoop in het klein, niet elders gen.
5509.61	Garens van acryl stapelvez. gem.m wol/fijn haar, niet opg. voor verkoop in het klein, niet elders gen.
5509.62	Garens van acryl stapelvezels gem.m katoen, niet opg. voor verkoop in het klein, niet elders gen.
5509.69	Garens van acryl stapelvezels, niet opg. voor verkoop in het klein, niet elders gen.
5509.91	Garens van andere synth. stapelvezels gem.m/wol/fijn haar, niet elders gen.
5509.92	Garens van andere synth. stapelvezels gem.m katoen, niet opg. voor verkoop in het klein, niet elders gen.
5509.99	Garens van andere synth. stapelvezels, niet opg.voor verkoop in klein, niet elders gen.
5510.11	Garens,>/=85% of kunstmat. stapelvezels, eendraads, niet opg. voor verkoop in het klein
5510.12	Garens,>/=85% of kunstmat. stapelvezels, getwijnd, niet opg. voor verkoop in het klein, niet elders gen.
5510.20	Garens van kunstmat. stapelvez. gem.met wol/fijn haar, niet opg. voor verkoop in het klein, niet elders gen.
5510.30	Garens van kunstmat. stapelvezels gem.m katoen, niet opg. voor verkoop in het klein, niet elders gen.
5510.90	Garens van kunstmat. stapelvezels, niet opg. voor verkoop in het klein, niet elders gen.
5511.10	Garens,>/=85% van synth. stapelvezels, andere dan naaigarens, opg.verkoop klein
5511.20	Garens, <85% van synth. stapelvezels, opg.verkoop klein, niet elders gen.
5511.30	Garens van kunstmat. fibres (andere dan naaigarens), opg.verkoop klein
5512.11	Weefsels, bevattende>/=85% van polyester stapelvezels, ongebl. of gebl.
5512.19	Weefsels, bevattende>/=85% van polyester stapelvezels, andere dan ongebl. or gebl.
5512.21	Weefsels, bevattende>/=85% van acryl stapelvezels, ongebl. of gebl.
5512.29	Weefsels, bevattende>/=85% van acryl stapelvezels, andere dan ongebl. or gebl.
5512.91	Weefsels, bevattende>/=85% van andere synth. stapelvezels, ongebl./gebl.
5512.99	Weefsels, bevattende>/=85% van andere synth. stapelvez., andere dan ongebl./gebl.
5513.11	Weefsels met platbinding van polyest stapelvez.,<85%, gem.m katoen,</=170g/m2, ongebl./gebl.
5513.12	Weefsels met keperbinding van polyest stapelvez.,<85%, gem.m katoen,</=170g/m2, ongebl./gebl.
5513.13	Weefsels van polyest stapelvez.,<85% gem.m katoen, </=170g/m2, ongebl./gebl., niet elders gen.
5513.19	Weefsels van andere synth stapelvez.,<85%,gem.m katoen,</=170g/m2, ongebl./gebl.
5513.21	Weefsels met platbinding van polyester stapelvez.,<85%, gem.m katoen,</=170g/m2, geverfd
5513.22	Weefsels met keperbinding van polyest stapelvez.,<85%, gem.m katoen,</=170g/m2, geverfd
5513.23	Weefsels van polyester stapelvez.,<85%,gem.m katoen, </=170 g/m2, geverfd, niet elders gen.
5513.29	Weefsels van andere synth. stapelvez.,<85% gem.m katoen,</=170g/m2, geverfd
5513.31	Weefsels met platbinding van polyest stapelvez.,<85% gem.m katoen,</=170g/m2, versch.gekl.garens
5513.32	Weefsels met keperbinding van polyest stapelvez.,<85% gem.m katoen,</=170g/m2, versch.gekl.garens
5513.33	Weefsels van polyest stapelvez.,<85% gem.m katoen, </=170 g/m2, geverfd niet elders gen.
5513.39	Weefsels van andere synth. stapelvez.,<85% gem.m katoen,</=170g/m2, versch.gekl.garens
5513.41	Weefsels met platbinding van polyester stapelvez.,<85%, gem.m katoen,</=170g/m2, bedrukt
5513.42	Weefsels met keperbinding van polyest stapelvez.,<85%, gem.m katoen, <=/170g/m2, bedrukt
5513.43	Weefsels van polyester stapelvez.,<85%,gem.m katoen, </=170g/m2, bedrukt, niet elders gen.
5513.49	Weefsels van andere synth. stapelvez.,<85%,gem.m katoen,</=170g/m2, bedrukt
5514.11	Weefsels met platbinding van polyest stapelvez.,<85%, gem.m katoen,>170g/m2, ongebl./gebl.
5514.12	Weefsels met keperbinding van polyest stapelvez.,<85%, gem.m katoen,>170g/m2, ongebl./gebl.
5514.13	Weefsels van polyester stapelvez.,<85% gem.m katoen,>170g/m2, ongebl./gebl., niet elders gen.
5514.19	Weefsels van andere sunth. stapelvez.,<85%,gem.m. katoen,>170 g/m2, ongebl./gebl.
5514.21	Weefsels met platbinding van polyester stapelvez.,<85%, gem.m katoen,>170g/m2, geverfd
5514.22	Weefsels met keperbinding van polyester stapelvez.,<85%, gem.m katoen,>170g/m2, geverfd
5514.23	Weefsels van polyester stapelvez.,<85%,gem.m katoen,>170 g/m2, geverfd
5514.29	Weefsels van andere synth. stapelvez.,<85%,gem.m katoen,>170g/m2, geverfd
5514.31	Weefsels met platbinding van polyester stapelvez.,<85% gem.m katoen,>170g/m2, versch.gekl.garens
5514.32	Weefsels met keperbinding van polyester stapelvez.,<85% gem.m katoen,>170g/m2, versch.gekl.garens
5514.33	Weefsels van polyester stapelvez.,<85% gem.m katoen,>170g/m2, versch.gekl.garens, niet elders gen.
5514.39	Weefsels van andere synth. stapelvez.,<85% gem.m katoen,>170 g/m2, versch.gekl.garens
5514.41	Weefsels met platbinding van polyester stapelvez.,<85%, gem.m katoen,>170g/m2, bedrukt
5514.42	Weefsels met keperbinding van polyester stapelvez.,<85%, gem.m katoen,>170g/m2, bedrukt
5514.43	Weefsels van polyester stapelvezels <85%,gem.m katoen,>170g/m2, bedrukt, niet elders gen.
5514.49	Weefsels van andere synth. stapelvez.,<85%,gem.m. katoen,>170 g/m2, bedrukt
5515.11	Weefsels van polyester stapelvez. gem.m viscoserayon stapelvez., niet elders gen.
5515.12	Weefsels van polyester stapelvezels gem.m. kunstm.fil., niet elders gen.
5515.13	Weefsels van polyester stapelvezels gem.m/wol/fijn haar, niet elders gen.
5515.19	Weefsels van polyester stapelvezels, niet elders gen.
5515.21	Weefsels van acryl stapelvez., gem.m. kunstm.fil., niet elders gen.
5515.22	Weefsels van acryl stapelvezels, gem.m/wol/fijn haar, niet elders gen.
5515.29	Weefsels van acryl of modacryl stapelvezels, niet elders gen.
5515.91	Weefsels van andere synth. stapelvez., gem. met kunstm. fil., niet elders gen.
5515.92	Weefsels van andere synth. stapelvez., gem.m/wol of fijn haar, niet elders gen.
5515.99	Weefsels van synth. stapelvezels, niet elders gen.
5516.11	Weefsels, bevattende>/=85% of kunstmat. stapelvezels, ongebl./gebl.
5516.12	Weefsels, bevattende>/=85% of kunstmat. stapelvezels, geverfd
5516.13	Weefsels, bevattende>/=85% of kunstmat. stapelvez., versch.gekl.garen
5516.14	Weefsels, bevattende>/=85% of kunstmat. stapelvezels, bedrukt
5516.21	Weefsels van kunstmat. stapelvez.,<85%,gem.m kunstm. fil., ongebl./gebl.
5516.22	Weefsels van kunstmat. stapelvez.,<85%,gem.m kunstm. fil., geverfd
5516.23	Weefsels van kunstmat. stapelvez.,<85%,gem.m kunstm. fil., versch.gekl.garens
5516.24	Weefsels van kunstmat. stapelvez.,<85%,gem.m kunstm. fil., bedrukt
5516.31	Weefsels van kunstmat. stapelvez.,<85% gem.m/wol/fijn haar, ongebl./gebl.
5516.32	Weefsels van kunstmat. stapelvez.,<85% gem.m/wol/fijn haar, geverfd
5516.33	Weefsels van kunstmat. stapelvez.,<85% gem.m/wol/fijn haar, versch.gekl. garens
5516.34	Weefsels van kunstmat. stapelvez.,<85% gem.m/wol/fijn haar, bedrukt
5516.41	Weefsels van kunstmat. stapelvez.,<85% gem.m katoen, ongebl. of gebl.
5516.42	Weefsels van kunstmat. stapelvez., <85% gem.m katoen, geverfd
5516.43	Weefsels van kunstmat. stapelvez.,<85% gem.m katoen, versch.gekl.garens
5516.44	Weefsels van kunstmat. stapelvez.,<85% gem.m katoen, bedrukt
5516.91	Weefsels van kunstmat. stapelvezels, ongebl. or gebl., niet elders gen.
5516.92	Weefsels van kunstmat. stapelvezels, geverfd, niet elders gen.
5516.93	Weefsels van kunstmat. stapelvezels, versch. gekl.garens, niet elders gen.
5516.94	Weefsels van kunstmat. stapelvezels, bedrukt, niet elders gen.
Hfdst. 56	Watten, vilt & gebonden textielvlies; spec.garens; bindgaren, touw enz.
5601.10	Hyg.art.van watten van textielstof, m.n. maandverband, tampons
5601.21	Watten van katoen; andere art. daarvan, andere dan hyg.art.
5601.22	Watten van synth.of kunstm.vez. en art. daarvan, andere dan hyg.art.
5601.29	Watten van andere text.stof & art. daarvan, andere dan hyg.art.
5601.30	Scheerhaar en noppen van textielstof
5602.10	Naaldgetouwvilt en prod. doorstikt met naaibreisteek
5602.21	Ander dan naaldgetouwvilt, van wol of fijn haar, niet geïmpreg, bekleed, bedekt enz.
5602.29	Ander dan naaldgetouwvilt, van andere textielstof, niet geïmpreg, bekleed, bedekt enz.
5602.90	Vilt van text.stoffen, niet elders gen.
5603.00	Geb.textielvlies, ook indien geïmpreg., bekleed, bedekt of met inlagen
5604.10	Draad en koord van rubber, met textiel bedekt
5604.20	Garens met hoge sterktegraad van polyest, nylon, andere polyamiden, viscoserayon, bekl. enz.
5604.90	Textielgarens, -strippen e.d., geïmpreg bekl./bed. met rubber of plast., niet elders gen.
5605.00	Metaalgarens, best.uit textielgarens verbonden m. metaaldraad, -strippen/ -poeder
5606.00	Omwoeld garen niet elders gen.; chenillegaren; kettingsteekgaren
5607.10	Bindgaren, touw, kabel, van jute of andere bastvezels
5607.21	Bindtouw van sisal of andere textielvez. van agaven
5607.29	Bindgaren niet elders gen., touw, kabel, van sisal textielvez.
5607.30	Bindgaren, touw, kabel, van abaca of andere harde vezels
5607.41	Bindtouw, van polyethyleen of polypropyleen
5607.49	Bindgaren niet elders gen., touw, kabel, van polyethyleen of polypropyleen
5607.50	Bindgaren, touw, kabel, van andere synth. vezels
5607.90	Bindgaren, touw, kabel, van andere stoffen
5608.11	Geconfect. visnetten van synth. of kunstm. textielstoffen
5608.19	Geknoopte netten van bindgaren/touw/kabel en andere geconf. netten van kunstmat.
5608.90	Geknoopte netten van bindgaren/touw/kabel, niet elders gen., en geconf.netten van andere text.stoffen
5609.00	artikelen van garen, strippen, bindgaren, touw, kabel, niet elders gen.
Hfdst. 57	Tapijten
5701.10	Tapijten van wol of fijn haar, geknoopt
5701.90	Tapijten van andere textielst., geknoopt
5702.10	Kelim, Sumak, Karamanie en derg. handgewed. tapijten
5702.20	Tapijten van kokosvezel
5702.31	Tapijten van wol/fijn haar, met pool, niet geconf. niet elders gen.
5702.32	Tapijten van synth.of kunstm.text.st., met pool, niet geconf., niet elders gen.
5702.39	Tapijten van andere text.st., met pool, niet geconf., niet elders gen.
5702.41	Tapijten van wol/fijn haar, met pool, geconf., niet elders gen.
5702.42	Tapijten van kunstm. of synth.mat., met pool, geconf., niet elders gen.
5702.49	Tapijten van andere textielstoffen, met pool, geconf., niet elders gen.
5702.51	Tapijten van wol of fijn haar, geweven, niet geconf., niet elders gen.
5702.52	Tapijten van kunstm. of synth.mat., geweven, niet geconf., niet elders gen.
5702.59	Tapijten van andere textielstoffen, geweven, niet geconf., niet elders gen.
5702.91	Tapijten van wol of fijn haar, geweven, geconf., niet elders gen.
5702.92	Tapijten van kunstm. of synth.mat., geweven, geconf., niet elders gen.
5702.99	Tapijten van andere textielstoffen, geweven, geconf., niet elders gen.
5703.10	Tapijten van wol of fijn haar, getuft
5703.20	Tapijten van nylon of andere polyamiden, getuft
5703.30	Tapijten van andere kunst.of synth. textielst., getuft
5703.90	Tapijten van andere textielstoffen, getuft
5704.10	Tegels van vilt, met een oppervlakte van niet meer dan 0.3 m2
5704.90	Tapijten van vilt, niet elders gen.
5705.00	Andere tapijten, niet elders gen.
Hfdst. 58	Speciale weefsels; getufte textielst.; kant; tapisserieën enz.
5801.10	Fluweel, pluche en chenilleweefsel van wol/fijn haar, andere dan lussenweefsel en lint
5801.21	Ongesneden inslagfluweel en -pluche van katoen, andere dan lussenweefsel en lint
5801.22	Gesneden inslagfluweel en -pluche, andere dan lint
5801.23	Inslagfluweel en -pluche van katoen, niet elders gen.
5801.24	Kettingfluweel en pluche van katoen, épinglé, andere dan lussenweefsel en lint
5801.25	Gesneden kettingfluweel en -pluche van katoen, andere dan lussenweefsel en lint
5801.26	Chenilleweefsel van katoen, andere dan lint
5801.31	Ongesneden inslagfluweel van kunstm. of synth. vezels, andere dan lussenweefsel en lint.
5801.32	Gesneden inslagfluweel en -pluche, geribd (corduroy), van kunstm. of synth. vezels, andere dan lint
5801.33	Inslagfluweel en -pluche van kunstm. of synth. vezels, niet elders gen.
5801.34	Kettingfluweel en -pluche van kunstm. of synth. vezels, épinglé (ongesn.),andere dan lussenw. en lint
5801.35	Gesneden kettingfluweel en -pluche van kunstm. of synth. vezels, andere dan lussenw.&lint
5801.36	Chenilleweefsel van kunstm. of synth. vezels, andere dan lint
5801.90	Fluweel, pluche en chenilleweefs. van andere text.st, andere dan lussenw&lint
5802.11	Lussenweefs. (bad- of frott.st) van katoen, andere dan lint, ongebl.
5802.19	Lussenweefs. (bad- of frott.st) van katoen, andere dan ongebl.&andere dan lint
5802.20	Lussenweefs. (bad- of frott.st) van andere text.st., andere dan lint
5802.30	Getufte textielstoffen, andere dan produkt van postnr. 57.03
5803.10	Weefs. met gaasbinding van katoen, andere dan lint
5803.90	Weefs. met gaasbinding van andere textielstoffen, andere dan lint
5804.10	Tule, bobinettule en filetweefsel
5804.21	Mechanisch verv. kant van kunstm. of synth. vezels, aan het stuk, in banden/motieven
5804.29	Mechanisch verv. kant van andere text.st., aan het stuk, in banden/motieven
5804.30	Met de hand verv. kant, aan het stuk, in banden/motieven
5805.00	Met de hand gew. of met de naald verv. tapisserieën, ook indien geconf.
5806.10	Lint van fluweel, pluche, van chenille- en lussenweefsel
5806.20	Lint, bevattende aan gew.>/=5% elastomeergarens/rubberdraden, niet elders gen.
5806.31	Lint van katoen, niet elders gen.
5806.32	Lint van kunstm. of synth. vezels, niet elders gen.
5806.39	Lint van andere textielstoffen, niet elders gen.
5806.40	Bolduclint
5807.10	Etiketten, insignes en dergelijke geweven artikelen van text.st.
5807.90	Etiketten, insignes en dergelijke art., niet geweven, van textielst., niet elders gen.
5808.10	Vlechten aan het stuk
5808.90	Versieringsart. aan het stuk, andere dan gebreid; eikels, kwasten, pompons e.d. art.
5809.00	Weefsels van metaaldraad/metaalgarens, voor kleding enz, niet elders gen.
5810.10	Borduurwerk zonder zichtb.grondweefsel, aan het stuk, in strippen/ motieven
5810.91	Borduurwerk van katoen, aan het stuk, in strippen/motieven, niet elders gen.
5810.92	Borduurwerk van kunstm. of synth. vezels, aan het stuk, in strippen/motieven, niet elders gen.
5810.99	Borduurwerk van andere textielst., aan het stuk, in strippen/motieven, niet elders gen.
5811.00	Text.prod.bestaande uit lagen textielmat. samengev. met watten of ander opvulmat., aan het stuk
Hfdst. 59	Weefsels geïmpregn., bekleed, bedekt of met inlagen enz.
5901.10	Weefsels bedekt met lijm, van de soort gebr. voor boekbinden
5901.90	Calqueerlinnen, schilderdoek; stijflinnen (buckram), voor hoeden enz.
5902.10	Tire cord fabric van nylon- of andere polyamidegarens met hoge sterktegr.
5902.20	Tire cord fabric van polyestergarens met hoge sterktegr.
5902.90	Tire cord fabric viscoserayongarens met hoge sterktegr.
5903.10	Textielweefs. geïmpregn., bekleed, bedekt of met inlagen van polyvinyl-chloride, niet elders gen.
5903.20	Textielweefs. geïmpregn., bekleed, bedekt of met inlagen van polyurethaan, niet elders gen.
5903.90	Textielweefs. geïmpregn., bekleed, bedekt of met inlagen van kunststof, niet elders gen.
5904.10	Lineoleum, ook indien in bepaalde vorm gesneden
5904.91	Vloerbedekking, andere dan linoleum, met een drager van naaldgetouwvilt/geb.textielvlies
5904.92	Vloerbedekking, andere dan linoleum, met een drager van ander textiel
5905.00	Wandbekleding van textielstof
5906.10	Gegummeerde textiel plakband met een breedte van niet meer dan 20 cm
5906.91	Gegummeerd brei- of haakwerk, niet elders gen.
5906.99	Gegummeerde weefsels, niet elders gen.
5907.00	Weefsels, geïmpregn, bekl., bedekt, niet elders gen.; beschilderd doek( bijv. theatercoulissen)
5908.00	Kousen, pitten en wieken voor lampen, komforen enz.; gloeikousjes en rondgebr. buisjes voor gloeikousjes
5909.00	Brandslangen en derg. slangen van textielst.
5910.00	Drijfriemen, drijfsnaren en transportbanden van textielst.
5911.10	Weefsels gebr. voor kaardbeslag en ander technisch gebruik
5911.20	Builgaas, ook indien geconf.
5911.31	Weefsels van de soort gebr. voor papiermach. en derg. mach.,<650 g/m2
5911.32	Weefsels van de soort gebr. voor papiermach. en derg. mach.,>/=650 g/m2
5911.40	Persdoeken gebr. in oliepersen of derg., waaronder die van mensenhaar
5911.90	Weefsels en textielart. voor technisch gebruik, niet elders gen.
Hfdst. 60	Brei- en haakwerk aan het stuk
6001.10	Hoogpoligbrei- en haakwerk aan het stuk
6001.21	Poolbrei- en haakwerk van lussenstof, aan het stuk, van katoen
6001.22	Poolbrei- en haakwerk v. lussenstof, aan het stuk, van kunstm. of synth. vez.
6001.29	Poolbrei- en haakwerk v. lussenstof, aan het stuk, van andere textielstoffen
6001.91	Poolbrei- en haakwerk aan het stuk, van katoen, niet elders gen.
6001.92	Poolbrei- en haakwerk aan het stuk, van kunstm. of synth. vezels, niet elders gen.
6001.99	Poolbrei- en haakwerk aan het stuk, van andere textielstoffen, niet elders gen.
6002.10	Brei- en haakw. aan het stuk, br.</=30 cm,>/=5% elastomeer/rubber, niet elders gen.
6002.20	Brei- en haakw. aan het stuk, br. niet meer dan 30 cm, niet elders gen.
6002.30	Brei- of haakw. aan het stuk, br. > 30 cm,>/=5% elastomeer/rubber, niet elders gen.
6002.41	Kettingbreiwerk, van wol of fijn haar, niet elders gen.
6002.42	Kettingbreiwerk, van katoen, niet elders gen.
6002.43	Kettingbreiwerk, van kunstm. of synth. vezels, niet elders gen.
6002.49	Kettingbreiwerk, van ander materiaal, niet elders gen.
6002.91	Brei- en haakwerk aan het stuk, van wol of fijn haar, niet elders gen.
6002.92	Brei- en haakwerk aan het stuk, van katoen, niet elders gen.
6002.93	Brei- en haakwerk aan het stuk, van kunstm. of synth.vez., niet elders gen.
6002.99	Brei- en haakwerk aan het stuk, van andere mat., niet elders gen.
Hfdst. 61	Kleding en kledingtoebehoren van brei- of haakwerk
6101.10	Jassen, anoraks enz. v.heren/jongens, van wol of fijn haar, gebreid
6101.20	Jassen, anoraks enz. v.heren/jongens, van katoen, gebreid
6101.30	Jassen, anoraks enz. v.heren/jongens, van kunstm. of synth. vezels, gebreid
6101.90	Jassen, anoraks enz. v.heren/jongens, van andere textielstoffen, gebreid
6102.10	Jassen, anoraks enz. v.dames/meisjes, van wol of fijn haar, gebreid
6102.20	Jassen, anoraks enz. v.dames/meisjes, van katoen, gebreid
6102.30	Jassen, anoraks enz. v.dames/meisjes, van kunstm. of synth. vezels, gebreid
6102.90	Jassen, anoraks enz. v.dames/meisjes, van andere textielstoffen, gebreid
6103.11	Kostuums v.heren/jongens, van wol of fijn haar, gebreid
6103.12	Kostuums v.heren/jongens, van synth. vezels, gebreid
6103.19	Kostuums v.heren/jongens, van andere textielstoffen, gebreid
6103.21	Ensembles v.heren/jongens, van wol of fijn haar, gebreid
6103.22	Ensembles v.heren/jongens, van katoen, gebreid
6103.23	Ensembles v.heren/jongens, van synth. vezels, gebreid
6103.29	Ensembles v.heren/jongens, van andere textielstoffen, gebreid
6103.31	Colbertjasjes en blazers v.heren/jongens, van wol of fijn haar, gebreid
6103.32	Colbertjasjes en blazers v.heren/jongens, van katoen, gebreid
6103.33	Colbertjasjes en blazers v.heren/jongens, van synth. vezels, gebreid
6103.39	Colbertjasjes en blazers v.heren/jongens, van andere textielst., gebreid
6103.41	Lange en korte broeken v.heren/jongens, van wol of fijn haar, gebreid
6103.42	Lange en korte broeken v.heren/jongens, van katoen, gebreid
6103.43	Korte en lange broeken v.heren/jongens, van synth. vezels, gebreid
6103.49	Korte en lange broeken v.heren/jongens, van andere textielstoffen, gebreid
6104.11	Mantel-, broekpakken v.dames/meisjes, van wol of fijn haar, gebreid
6104.12	Mantel-, broekpakken v.dames/meisjes, van katoen, gebreid
6104.13	Mantel-, broekpakken v.dames/meisjes, van synth. vezels, gebreid
6104.19	Mantel-, broekpakken v.dames/meisjes, van andere textielstoffen, gebreid
6104.21	Ensembles v. dames of meisjes, van wol of fijn haar, gebreid
6104.22	Ensembles v. dames of meisjes, van katoen, gebreid
6104.23	Ensembles v. dames of meisjes, van synth. vezels, gebreid
6104.29	Ensembles v. dames of meisjes, van andere textielstoffen, gebreid
6104.31	Blazers, jasjes v.dames/meisjes, van wol of fijn haar, gebreid
6104.32	Blazers, jasjes v.dames/meisjes, van katoen, gebreid
6104.33	Blazers, jasjes v.dames/meisjes, van synth. vezels, gebreid
6104.39	Blazers, jasjes v.dames/meisjes, van andere textielstoffen, gebreid
6104.41	Japonnen v.dames/meisjes, van wol of fijn haar, gebreid
6104.42	Japonnen v.dames/meisjes, van katoen, gebreid
6104.43	Japonnen v.dames/meisjes, van synth. vezels, gebreid
6104.44	Japonnen v.dames/meisjes, van kunstmat. vezels, gebreid
6104.49	Japonnen v.dames/meisjes, van andere textielstoffen, gebreid
6104.51	Rokken v.dames/meisjes, van wol of fijn haar, gebreid
6104.52	Rokken v.dames/meisjes, van katoen, gebreid
6104.53	Rokken v.dames/meisjes, van synth. vezels, gebreid
6104.59	Rokken v.dames/meisjes, van andere textielstoffen, gebreid
6104.61	Korte en lange broeken v.dames/meisjes, van wol of fijn haar, gebreid
6104.62	Korte en lange broeken v.dames/meisjes, van katoen, gebreid
6104.63	Korte en lange broeken v.dames/meisjes, van synth. vezels, gebreid
6104.69	Korte en lange broeken v.dames/meisjes, van andere textielstoffen, gebreid
6105.10	Overhemden v.heren/jongens, van katoen, gebreid
6105.20	Overhemden v.heren/jongens, van kunstm. of synth. vezels, gebreid
6105.90	Overhemden v.heren/jongens, van andere textielstoffen, gebreid
6106.10	Blouses en hemdblouses v.dames/meisjes, van katoen, gebreid
6106.20	Blouses en hemdblouses v.dames/meisjes, van kunstm. of synth. vezels, gebreid
6106.90	Blouses en hemdblouses v. dames of meisjes, van andere textielst., gebreid
6107.11	Slips en onderbroeken v.heren/jongens, van katoen, gebreid
6107.12	Slips en onderbroeken v.heren/jongens, van kunstm. of synth. vezels, gebreid
6107.19	Slips en onderbroeken v.heren/jongens, van andere textielstoffen, gebreid
6107.21	Nachthemden en pyama's v.heren/jongens, van katoen, gebreid
6107.22	Nachthemden en pyama's v.heren/jongens, van kunstm. of synth. vezels, gebreid
6107.29	Nachthemden en pyama's v.heren/jongens, van andere textielstoffen, gebreid
6107.91	Badjassen, kamerjassen enz. v.heren/jongens, van katoen, gebreid
6107.92	Badjassen, kamerjassen enz. v.heren/jongens, van kunstm. of synth. vezels, gebreid
6107.99	Badjassen, kamerjassen enz. v.heren/jongens, van andere textielst., gebreid
6108.11	Onderjurken en -rokken v.dames/meisjes, van kunstm. of synth. vezels, gebreid
6108.19	Onderjurken en -rokken v.dames/meisjes, van andere textielstoffen, gebreid
6108.21	Slips en onderbroeken v.dames/meisjes, van katoen, gebreid
6108.22	Slips en onderbroeken v.dames/meisjes, van kunstm. of synth. vezels, gebreid
6108.29	Slips en onderbroeken v.dames/meisjes, van andere textielstoffen, gebreid
6108.31	Nachthemden en pyama's v.dames/meisjes, van katoen, gebreid
6108.32	Nachthemden en pyama's v.dames/meisjes, van kunstm. of synth. vezels, gebreid
6108.39	Nachthemden en pyjama's v.dames/meisjes, van andere textielst., gebreid
6108.91	Badjassen, kamerjassen enz. v.dames/meisjes, van katoen, gebreid
6108.92	Badjassen, kamerjassen enz. v.dames/meisjes, van kunstm. of synth. vezels, gebreid
6108.99	Badjassen, kamerjassen enz. v. dames of meisjes, van andere textielst., gebreid
6109.10	T-shirts, onderhemden enz., van katoen, gebreid
6109.90	T-shirts, onderhemden enz., van andere textielstoffen, gebreid
6110.10	Truien, vesten en derg.art., van wol of fijn haar, gebreid
6110.20	Truien, vesten en derg.art., van katoen, gebreid
6110.30	Truien, vesten en derg.art., van kunstm. of synth. vezels, gebreid
6110.90	Truien, vesten en derg.art., van andere textielstoffen, gebreid
6111.10	Kleding en kledingstoeb.v.baby's, van wol of fijn haar, gebreid
6111.20	Kleding en kledingstoeb.v.baby's, van katoen, gebreid
6111.30	Kleding en kledingstoeb.v.baby's, van synth. vezels, gebreid
6111.90	Kleding en kledingstoeb.v.baby's, van andere textielstoffen, gebreid
6112.11	Trainingspakken, van katoen, gebreid
6112.12	Trainingspakken, van synth. vezels, gebreid
6112.19	Trainingspakken, van andere textielstoffen, gebreid
6112.20	Skipakken, van textielstoffen, gebreid
6112.31	Badpakken en zwembroeken v. heren of jongens, van synth. vezels, gebreid
6112.39	Badpakken en zwembroeken v. heren of jongens, van andere textielst., gebreid
6112.41	Badpakken en zwembroeken v. dames of meisjes, van synth. vezels, gebreid
6112.49	Badpakken en zwembroeken v. dames of meisjes, van andere textielst., gebreid
6113.00	Kleding van breiwerk aan het stuk, geïmpregn., bekleed, bedekt of met inlagen
6114.10	Kleding, niet elders gen., van wol of fijn haar, gebreid
6114.20	Kleding, niet elders gen., van katoen, gebreid
6114.30	Kleding, niet elders gen., van kunstm. of synth. vezels, gebreid
6114.90	Kleding, niet elders gen., van andere textielstoffen, gebreid
6115.11	Kousenbroeken, van synth. garens <67 dtex/eendraadsgarens, gebreid
6115.12	Kousenbroeken, van synth. garens >/=67 dtex/eendraadsgarens, gebreid
6115.19	Kousenbroeken, van andere textielstoffen, gebreid
6115.20	Dameskousen en -kniekousen, van textielgarens<67 dtex/eendraadsgarens, gebreid
6115.91	Kousen, sokken e.d., niet elders gen., van wol of fijn haar, gebreid
6115.92	Kousen, sokken e.d., niet elders gen., van katoen, gebreid
6115.93	Kousen, sokken e.d., niet elders gen., van synth. vezels, gebreid
6115.99	Kousen, sokken e.d., niet elders gen., van andere textielstoffen, gebreid
6116.10	Handschoenen, geïmpregn., bekleed of bedekt met kunststof of rubber, gebreid
6116.91	Handschoenen, wanten e.d., niet elders gen., van wol of fijn haar, gebreid
6116.92	Handschoenen, wanten e.d., niet elders gen., van katoen, gebreid
6116.93	Handschoenen, wanten e.d., niet elders gen., van synth. vezels, gebreid
6116.99	Handschoenen, wanten e.d., niet elders gen., van andere textielst., gebreid
6117.10	Sjaals, hoofddoeken, sluiers e.d., van textielstoffen, gebreid
6117.20	Dassen, strikjes en sjaaldassen, van textielstoffen, gebreid
6117.80	Kledingtoebehoren, niet elders gen., van textielstoffen, gebreid
6117.90	Delen van kleding/kledingtoebehoren, van textielstoffen, gebreid
Hfdst. 62	Kleding en kledingtoebehoren, andere dan van brei- of haakwerk
6201.11	Overjassen e.d. v.heren/jongens, van wol/fijn haar, niet gebreid
6201.12	Overjassen e.d. v.heren/jongens, van katoen, niet gebreid
6201.13	Overjassen e.d. v.heren/jongens, van kunstm. of synth. vezels, niet gebreid
6201.19	Overjassen e.d. v.heren/jongens, van andere textielst., niet gebreid
6201.91	Anoraks e.d. v.heren/jongens, van wol/fijn haar, niet gebreid
6201.92	Anoraks e.d. v.heren/jongens, van katoen, niet gebreid
6201.93	Anoraks e.d. v.heren/jongens, van kunstm. of synth. vezels, niet gebreid
6201.99	Anoraks e.d. v.heren/jongens, van andere textielstoffen, niet gebreid
6202.11	Mantels e.d. v. dames of meisjes, van wol/fijn haar, niet gebreid
6202.12	Mantels e.d. v. dames of meisjes, van katoen, niet gebreid
6202.13	Mantels e.d. v. dames of meisjes, van kunstm. of synth. vezels, niet gebreid
6202.19	Mantels e.d. v. dames of meisjes, van andere textielst., niet gebreid
6202.91	Anoraks e.d. v. dames of meisjes, van wol/fijn haar, niet gebreid
6202.92	Anoraks e.d. v. dames of meisjes, van katoen, niet gebreid
6202.93	Anoraks e.d. v. dames of meisjes, van kunstm. of synth. vezels, niet gebreid
6202.99	Anoraks e.d. v. dames of meisjes, van andere textielstoffen, niet gebreid
6203.11	Kostuums v.heren/jongens, van wol of fijn haar, niet gebreid
6203.12	Kostuums v.heren/jongens, van synth. vezels, niet gebreid
6203.19	Kostuums v.heren/jongens, van andere textielstoffen, niet gebreid
6203.21	Ensembles v.heren/jongens, van wol of fijn haar, niet gebreid
6203.22	Ensembles v.heren/jongens, van katoen, niet gebreid
6203.23	Ensembles v.heren/jongens, van synth. vezels, niet gebreid
6203.29	Ensembles v.heren/jongens, van andere textielstoffen, niet gebreid
6203.31	Colbertjasjes en blazers v.heren/jongens, van wol of fijn haar, niet gebreid
6203.32	Colbertjasjes en blazers v.heren/jongens, van katoen, niet gebreid
6203.33	Colbertjasjes en blazers v.heren/jongens, van synth. vezels, niet gebreid
6203.39	Colbertjasjes en blazers v.heren/jongens, van andere textielstoffen, niet gebreid
6203.41	Korte en lange broeken v.heren/jongens, van wol of fijn haar, niet gebreid
6203.42	Korte en lange broeken v.heren/jongens, van katoen, niet gebreid
6203.43	Korte en lange broeken v.heren/jongens, van synth. vezels, niet gebreid
6203.49	Korte en lange broeken v.heren/jongens, van andere textielst., niet gebreid
6204.11	Mantel- en broekpakken v.dames/meisjes, van wol of fijn haar, niet gebreid
6204.12	Mantel- en broekpakken v.dames/meisjes, van katoen, niet gebreid
6204.13	Mantel- en broekpakken v.dames/meisjes, van synth. vezels, niet gebreid
6204.19	Mantel- en broekpakken v.dames/meisjes, van andere textielst., niet gebreid
6204.21	Ensembles v. dames of meisjes, van wol of fijn haar, niet gebreid
6204.22	Ensembles v. dames of meisjes, van katoen, niet gebreid
6204.23	Ensembles v. dames of meisjes, van synth. vezels, niet gebreid
6204.29	Ensembles v. dames of meisjes, van andere textielstoffen, niet gebreid
6204.31	Blazers/jasjes v.dames/meisjes, van wol of fijn haar, niet gebreid
6204.32	Blazers/jasjes v.dames/meisjes, van katoen, niet gebreid
6204.33	Blazers/jasjes v.dames/meisjes, van synth. vezels, niet gebreid
6204.39	Blazers/jasjes v.dames/meisjes, van andere textielstoffen, niet gebreid
6204.41	Japonnen v.dames/meisjes, van wol of fijn haar, niet gebreid
6204.42	Japonnen v.dames/meisjes, van katoen, niet gebreid
6204.43	Japonnen v.dames/meisjes, van synth. vezels, niet gebreid
6204.44	Japonnen v.dames/meisjes, van kunstmat. vezels, niet gebreid
6204.49	Japonnen v.dames/meisjes, van andere textielstoffen, niet gebreid
6204.51	Rokken v.dames/meisjes, van wol of fijn haar, niet gebreid
6204.52	Rokken v.dames/meisjes, van katoen, niet gebreid
6204.53	Rokken v.dames/meisjes, van synth. vezels, niet gebreid
6204.59	Rokken v.dames/meisjes, van andere textielstoffen, niet gebreid
6204.61	Korte en lange broeken v.dames/meisjes, van wol of fijn haar, niet gebreid
6204.62	Korte en lange broeken v.dames/meisjes, van katoen, niet gebreid
6204.63	Korte en lange broeken v.dames/meisjes, van synth. vezels, niet gebreid
6204.69	Korte en lange broeken v.dames/meisjes, van andere textielst., niet gebreid
6205.10	Overhemden v.heren/jongens, van wol of fijn haar, niet gebreid
6205.20	Overhemden v.heren/jongens, van katoen, niet gebreid
6205.30	Overhemden v.heren/jongens, van kunstm. of synth. vezels, niet gebreid
6205.90	Overhemden v.heren/jongens, van andere textielstoffen, niet gebreid
6206.10	Blouses en hemdblouses v.dames/meisjes, van zijde of zijdeafval, niet gebreid
6206.20	Blouses en hemdblouses v.dames/meisjes, van wol of fijn haar, niet gebreid
6206.30	Blouses en hemdblouses v.dames/meisjes, van katoen, niet gebreid
6206.40	Blouses en hemdblouses v.dames/meisjes, van kunstm. of synth. vezels, niet gebreid
6206.90	Blouses en hemdblouses v.dames/meisjes, van andere textielst., niet gebreid
6207.11	Slips en onderbroeken v.heren/jongens, van katoen, niet gebreid
6207.19	Slips en onderbroeken v.heren/jongens, van andere textielst., niet gebreid
6207.21	Nachthemden en pyama's v.heren/jongens, van katoen, niet gebreid
6207.22	Nachthemden en pyama's v.heren/jongens, van kunstm. of synth. vezels, niet gebreid
6207.29	Nachthemden en pyama's v.heren/jongens, van andere textielst., niet gebreid
6207.91	Badjassen, kamerjassen enz. v.heren/jongens, van katoen, niet gebreid
6207.92	Badjassen, kamerjassen enz. v.heren/jongens, van kunstm. of synth. vezels, niet gebreid
6207.99	Badjassen, kamerjassen enz. v.heren/jongens, van andere textielst., niet gebreid
6208.11	Onderjurken en -rokken v.dames/meisjes, van kunstm. of synth. vezels, niet gebreid
6208.19	Onderjurken en -rokken v.dames/meisjes, van andere textielst., niet gebreid
6208.21	Nachthemden en pyama's v.dames/meisjes, van katoen, niet gebreid
6208.22	Nachthemden en pyama's v.dames/meisjes, van kunstm. of synth. vezels, niet gebreid
6208.29	Nachthemden en pyama's v.dames/meisjes, van andere textielst., niet gebreid
6208.91	Slips, badjassen e.d. v.dames/meisjes, van katoen, niet gebreid
6208.92	Slips, badjassen e.d. v.dames/meisjes, van kunstm. of synth. vezels, niet gebreid
6208.99	Slips, badjassen e.d. v.dames/meisjes, van andere textielst., niet gebreid
6209.10	Kleding en kledingstoeb.v. baby's, van wol of fijn haar, niet gebreid
6209.20	Kleding en kledingstoeb.v. baby's, van katoen, niet gebreid
6209.30	Kleding en kledingstoeb.v. baby's, van synth. vezels, niet gebreid
6209.90	Kleding en kledingstoeb.v. baby's, van andere textielstoffen, niet gebreid
6210.10	Geconfect. kleding, van vilt of gebonden textielvlies
6210.20	Overjassen e.d. v.heren/jongens van geïmpregn, beklede, bedekte enz. weefsels
6210.30	Mantels e.d. v.dames/meisjes van geïmpregn., beklede, bedekte weefsels
6210.40	Kleding v.heren/jongens, niet elders gen., geconf. van geïmpregn., beklede, bedekte enz. textiele weefsels
6210.50	Kleding v.dames/meisjes, niet elders gen., van geïmpregn., beklede, bedekte enz. weefsels
6211.11	Badpakken en zwembroeken v.heren/jongens, van textielstoffen, niet gebreid
6211.12	Badpakken en zwembroeken v.dames/meisjes, van textielstoffen, niet gebreid
6211.20	Skipakken, van textielstoffen, niet gebreid
6211.31	Kleding v.heren/jongens, niet elders gen., van wol of fijn haar, niet gebreid
6211.32	Kleding v.heren/jongens, niet elders gen., van katoen, niet gebreid
6211.33	Kleding v.heren/jongens, niet elders gen., van kunstm. of synth. vezels, niet gebreid
6211.39	Kleding v.heren/jongens, niet elders gen., van andere textielst., niet gebreid
6211.41	Kleding v.dames/meisjes, niet elders gen., van wol of fijn haar, niet gebreid
6211.42	Kleding v.dames/meisjes, niet elders gen., van katoen, niet gebreid
6211.43	Kleding v.dames/meisjes, niet elders gen., van kunstm. of synth. vezels, niet gebreid
6211.49	Kleding v.dames/meisjes, niet elders gen., van andere textielst., niet gebreid
6212.10	Bustehouders en delen daarvan, van textielstoffen
6212.20	Gaines en gainebroeken en delen daarvan, van textielstoffen
6212.30	Corseletten en delen daarvan, van textielstoffen
6212.90	Korsetten, bretels e.d. en delen daarvan, van textielstoffen
6213.10	Zakdoeken, van zijde of zijdeafval, niet gebreid
6213.20	Zakdoeken, van katoen, niet gebreid
6213.90	Zakdoeken, van andere textielstoffen, niet gebreid
6214.10	Sjaals, hoofddoeken, sluiers e.d., van zijde of zijdeafval, niet gebreid
6214.20	Sjaals, hoofddoeken, sluiers e.d., van wol of fijn haar, niet gebreid
6214.30	Sjaals, hoofddoeken, sluiers e.d., van synth. vezels, niet gebreid
6214.40	Sjaals, hoofddoeken, sluiers e.d., van kunstmat. vezels, niet gebreid
6214.90	Sjaals, hoofddoeken, sluiers e.d., van andere textielstoffen, niet gebreid
6215.10	Dassen, strikjes en sjaaldassen, van zijde of zijdeafval, niet gebreid
6215.20	Dassen, strikjes en sjaaldassen, van kunstm. of synth. vezels, niet gebreid
6215.90	Dassen, strikjes en sjaaldassen, van andere textielstoffen, niet gebreid
6216.00	Handschoenen, wanten e.d., van textielstoffen, niet gebreid
6217.10	Kledingtoebehoren, niet elders gen., van textielstoffen, niet gebreid
6217.90	Delen van kleding of kledingtoebehoren, niet elders gen., van textielst., niet gebreid.
Hfdst. 63	Andere geconfect. artikelen van textiel; stellen of assortimenten, oude kleren e.d.
6301.10	Elektrische dekens, van textielstoffen
6301.20	Dekens (andere dan elektrische), van wol of fijn haar
6301.30	Dekens (andere dan elektrische), van katoen
6301.40	Dekens (andere dan elektrische), van synth. vezels
6301.90	Dekens (andere dan elektrische), van andere textielstoffen
6302.10	Bedlinnen, van brei- of haakwerk
6302.21	Bedlinnen, van katoen, bedrukt, niet gebreid
6302.22	Bedlinnen, van kunstm. of synth. vezels, bedrukt, niet gebreid
6302.29	Bedlinnen, van andere textielstoffen, bedrukt, niet gebreid
6302.31	Bedlinnen, van katoen, niet elders gen.
6302.32	Bedlinnen, van kunstm. of synth. vezels, niet elders gen.
6302.39	Bedlinnen, van andere textielstoffen, niet elders gen.
6302.40	Tafellinnen, van brei- of haakwerk
6302.51	Tafellinnen, van katoen, niet gebreid
6302.52	Tafellinnen, van vlas, niet gebreid
6302.53	Tafellinnen, van kunstm. of synth. vezels, niet gebreid
6302.59	Tafellinnen, van andere textielstoffen, niet gebreid
6302.60	Huishoudlinnen, van lussenstof, van katoen
6302.91	Huishoudlinnen, van katoen, niet elders gen.
6302.92	Huishoudlinnen, van vlas
6302.93	Huishoudlinnen, van kunstm. of synth. vezels
6302.99	Huishoudlinnen, van andere textielstoffen
6303.11	Vitrage, gordijnen, rolgordijn, bed- en gordijnvalletjes, van katoen, gebreid
6303.12	Vitrage, gordijnen, rolgordijn, bed- en gordijnvalletjes, van synth vezels, gebreid
6303.19	Vitrage, gordijnen, rolgordijn, bed- en gordijnvalletjes, van andere textielst., gebreid
6303.91	Vitrage, gordijnen, rolgordijn, bed- en gordijnvalletjes, van katoen, niet gebreid
6303.92	Vitrage, gordijnen, rolgordijn, bed- en gordijnvalletjes, van synth vezels, niet gebreid
6303.99	Vitrage, gordijnen, rolgordijn, bed- en gordijnvalletjes, van andere textielst., niet gebreid
6304.11	Bedspreien van textielstoffen, niet elders gen., van brei- of haakwerk
6304.19	Bedspreien van textielstoffen, niet elders gen., niet van brei- of haakwerk
6304.91	artikelen voor stoffering, niet elders gen., van textielstoffen, van brei- of haakwerk
6304.92	artikelen voor stoffering, niet elders gen., van katoen, niet van brei- of haakwerk
6304.93	artikelen voor stoffering, niet elders gen., van synth. vezels, niet van brei- of haakwerk
6304.99	artikelen voor stoffering, niet elders gen., van andere textielst., niet van brei- of haakwerk
6305.10	Zakken voor verpakkingsdoeleinden, van jute of andere bastvezels,
6305.20	Zakken voor verpakkingsdoeleinden, van katoen
6305.31	Zakken voor verpakkingsdoeleinden, van polyethyleen- of polypropyleenstrippen
6305.39	Zakken voor verpakkingsdoeleinden, van andere synth. of kunstm. textielst.
6305.90	Zakken voor verpakkingsdoeleinden, van andere textielstoffen
6306.11	Dekkleden en zonneschermen, van katoen
6306.12	Dekkleden en zonneschermen, van synth. vezels
6306.19	Dekkleden en zonneschermen, van andere textielstoffen
6306.21	Tenten, van katoen
6306.22	Tenten, van synth. vezels
6306.29	Tenten, van andere textielstoffen
6306.31	Zeilen voor schepen, van synth. vezels
6306.39	Zeilen voor schepen, van andere textielstoffen
6306.41	Luchtbedden, van katoen
6306.49	Luchtbedden, van andere textielstoffen
6306.91	Kampeerartikelen, niet elders gen., van katoen
6306.99	Kampeerartikelen, niet elders gen., van andere textielstoffen
6307.10	Dweilen, vaat-, stof-, poetsdoeken e.d., van textielstoffen
6307.20	Zwemgordels en zwemvesten, van textielstoffen
6307.90	Geconf. artikelen, van textielstof, niet elders gen., waaronder kledingpatronen
6308.00	Stellen of assortimenten, van weefsels & garen, voor de vervaardiging van tapijten, tapisserieën enz.
6309.00	Oude kleren en dergelijke

Overeenkomst inzake technische handelsbelemmeringen

Gelet op de Uruguay-Ronde van de multilaterale handelsbesprekingen;

Geleid door de wens de doelstellingen van de GATT 1994 te bevorderen;

Zich bewust van de belangrijke bijdrage die internationale normen en conformiteitsbeoordelingssystemen in dit verband kunnen leveren doordat zij de doelmatigheid van de produktie verbeteren en het internationale handelsverkeer vereenvoudigen;

Verlangende bijgevolg de ontwikkeling van dergelijke internationale normen en conformiteitsbeoordelingssystemen te bevorderen;

Verlangende evenwel ervoor te zorgen dat technische voorschriften en normen, onder meer wat het verpakken, merken en etiketteren van goederen en de procedures voor het beoordelen van de conformiteit met technische voorschriften en normen betreft geen onnodige belemmeringen voor de internationale handel vormen;

Erkennende dat geen enkel land mag worden verhinderd, op het niveau dat het passend acht, maatregelen te nemen ter bescherming van de kwaliteit van zijn uitvoer, van het milieu en van het leven en de gezondheid van mensen, dieren en planten of ter voorkoming van misleidende praktijken, op voorwaarde dat deze maatregelen niet op zodanige wijze worden toegepast dat zij een willekeurige of onverantwoorde discriminatie vormen tussen landen waar dezelfde omstandigheden heersen, zij geen verholen beperking van de internationale handel inhouden en zij anderszins in overeenstemming zijn met de bepalingen van deze Overeenkomst;

Erkennende dat geen enkel land mag worden verhinderd de maatregelen te nemen die nodig zijn voor de bescherming van zijn essentiële veiligheidsbelangen;

Zich bewust van de bijdrage die de internationale normalisatie kan leveren tot de overdracht van technologie van ontwikkelde landen naar ontwikkelingslanden;

Erkennende dat de ontwikkelingslanden bijzondere moeilijkheden kunnen ondervinden bij het opstellen en toepassen van technische voorschriften en normen en van procedures voor het beoordelen van de conformiteit met die technische voorschriften en normen, en geleid door de wens deze landen bijstand te verlenen op dit gebied;

Zijn de Leden het volgende overeengekomen:

Artikel 1. Algemeen

• 1.1 De algemene termen in verband met de normalisatie en de conformiteitsbeoordelingsprocedures hebben normaliter de betekenis die daaraan is gegeven in de definities die in het kader van het systeem van de Verenigde Naties en door de internationale normalisatie-instellingen zijn aangenomen, met inachtneming van het verband waarin zij voorkomen en met het doel van deze Overeenkomst.

• 1.2 Voor de toepassing van de onderhavige Overeenkomst hebben deze termen evenwel de betekenis die hieraan in bijlage 1 wordt gegeven.

• 1.3 Alle produkten, met inbegrip van industrie- en landbouwprodukten, vallen onder de bepalingen van deze Overeenkomst.

• 1.4 De door overheidsorganen opgestelde aankoopspecificaties ter voorziening in de produktie- of verbruiksbehoeften van die organen, vallen niet onder de bepalingen van deze Overeenkomst, maar onder die van de Overeenkomst inzake overheidsopdrachten, gezien het toepassingsgebied daarvan.

• 1.5 De bepalingen van deze Overeenkomst zijn niet van toepassing op sanitaire en fytosanitaire maatregelen als omschreven in bijlage A bij de Overeenkomst inzake sanitaire en fytosanitaire maatregelen.

• 1.6 Alle verwijzingen in deze Overeenkomst naar technische voorschriften, normen en conformiteitsbeoordelingsprocedures worden geacht eveneens betrekking te hebben op alle daarin aangebrachte wijzigingen en op alle aanvullingen op de bepalingen daarvan, alsmede op alle wijzigingen in verband met de produkten waarop deze Overeenkomst van toepassing is, met uitzondering van onbelangrijke wijzigingen of aanvullingen.

TECHNISCHE VOORSCHRIFTEN EN NORMEN

Artikel 2. Opstellen, aannemen en toepassen van technische voorschriften door centrale overheidsorganen

Wat hun centrale overheidsorganen betreft:

• 2.1 Zien de Leden erop toe dat produkten die uit het grondgebied van een ander Lid worden ingevoerd, bij de toepassing van technische voorschriften geen minder gunstige behandeling krijgen dan die welke geldt voor soortgelijke produkten van binnenlandse oorsprong of soortgelijke produkten van oorsprong uit een ander land.

• 2.2 Zien de Leden erop toe dat technische voorschriften niet worden opgesteld, aangenomen of toegepast met het doel onnodige belemmeringen voor de internationale handel te creëren en dat zij niet leiden tot het ontstaan van dergelijke belemmeringen. Daartoe mogen de technische voorschriften niet meer beperkingen voor het handelsverkeer inhouden dan nodig is om een legitiem doel te bereiken, rekening houdend met de risico's die aan het niet bereiken van dat doel verbonden zouden zijn. Zulke legitieme doestellingen zijn, onder meer, de nationale veiligheid, het voorkomen van misleidende praktijken, de bescherming van de gezondheid of de veiligheid van mensen en van het leven of de gezondheid van dieren of planten of van het milieu. Bij het beoordelen van dergelijke risico's wordt onder meer rekening gehouden met de beschikbare wetenschappelijke en technische informatie, de aanverwante verwerkingstechnieken of het voorgenomen eindgebruik van produkten.

• 2.3 Technische voorschriften worden niet gehandhaafd wanneer de omstandigheden of doelstellingen op grond waarvan zij zijn aangenomen niet langer aanwezig zijn of wanneer de door de gewijzigde omstandigheden of doelstellingen ontstane problemen kunnen worden opgelost door middel van maatregelen die het handelsverkeer minder sterk belemmeren.

• 2.4 Wanneer technische voorschriften vereist zijn en op het betrokken gebied internationale normen bestaan of op het punt staan te worden voltooid, nemen de Leden die normen of althans de relevante elementen daarvan tot grondslag van hun technische voorschriften, behalve wanneer die internationale normen of onderdelen ondoeltreffend of ongeschikt zouden zijn om de legitieme doelstellingen te bereiken, bij voorbeeld wegens fundamentele klimatologische of geografische factoren of fundamentele technologische problemen.

• 2.5 Een Lid dat een technisch voorschrift opstelt, aanneemt of toepast dat ernstige gevolgen kan hebben voor het handelsverkeer van andere Leden motiveert op verzoek van een ander Lid dat technisch voorschrift overeenkomstig de bepalingen van de leden 2, 3 en 4. Wanneer op grond van een uitdrukkelijk in lid 2 genoemde legitieme doelstelling een technisch voorschrift wordt opgesteld, aangenomen of toegepast dat in overeenstemming is met de desbetreffende internationale normen, wordt dat voorschrift geacht, tot het bewijs van het tegendeel is geleverd, geen onnodige belemmering voor het internationale handelsverkeer te vormen.

• 2.6 Met het oog op een zo ruim mogelijke harmonisatie van de technische voorschriften en normen nemen de Leden, binnen de grenzen van hun mogelijkheden, volledig deel aan het opstellen door de bevoegde internationale normalisatie-instellingen van internationale normen voor produkten waarvoor zij technische voorschriften of normen hebben aangenomen of voornemens zijn dit te doen.

• 2.7 De Leden verbinden zich ertoe de aanvaarding als equivalente maatregel van de in andere landen vastgestelde technische voorschriften in welwillende overweging te nemen, ook indien deze voorschriften van hun eigen voorschriften afwijken, mits zij de overtuiging zijn toegedaan dat de genoemde voorschriften in voldoende mate aan de doelstellingen van hun eigen voorschriften beantwoorden.

• 2.8 In alle gevallen waarin zulks wenselijk is, nemen de Leden bij het formuleren van op de produktvereisten gebaseerde technische voorschriften de werking van het produkt als uitgangspunt, veeleer dan het ontwerp of de beschrijving daarvan.

• 2.9 De Leden komen overeen, wanneer op een bepaald gebied geen internationale norm bestaat of de technische inhoud van een voorgesteld technisch voorschrift niet in overeenstemming is met de technische inhoud van de desbetreffende internationale normen en het technisch voorschrift aanzienlijke consequenties kan hebben voor het handelsverkeer van andere Leden:

  • 2.9.1 tijdig en op zodanige wijze dat belanghebbenden in andere Leden daarvan kennis kunnen nemen, een bericht te publiceren waarin zij mededelen dat zij voornemens zijn een bepaald technisch voorschrift in te voeren.

  • 2.9.2 de andere Leden via het Secretariaat mede te delen op welke produkten het voorgestelde technisch voorschrift betrekking heeft, met een beknopte omschrijving van het doel en de reden daarvan. Dergelijke kennisgevingen vinden voldoende tijdig plaats, zodat nog wijzigingen kunnen worden ingediend en rekening kan worden gehouden met commentaar;

  • 2.9.3 de andere Leden op hun verzoek bijzonderheden of de tekst van het voorgestelde technisch voorschrift te doen toekomen en, indien mogelijk, aan te geven op welke punten dit wezenlijk van de desbetreffende internationale normen afwijkt;

  • 2.9.4 de andere Leden, zonder onderscheid, een redelijke termijn toe te staan voor het geven van schriftelijke commentaar, op verzoek van gedachten te wisselen over deze commentaar en rekening te houden met deze commentaar en met het resultaat van de vorengenoemde gedachtenwisseling;

• 2.10 Behoudens het bepaalde in de aanhef van lid 9 kan een Lid dat met dringende problemen inzake veiligheid, gezondheid, milieubescherming of nationale veiligheid geconfronteerd wordt of dreigt te worden geconfronteerd, bepaalde van de in lid 9 bedoelde maatregelen voor zover het dit noodzakelijk oordeelt achterwege laten, op voorwaarde dat dit Lid bij het aannemen van een technisch voorschrift:

  • 2.10.1 de andere Leden via het Secretariaat onmiddellijk kennis geeft van dit technisch voorschrift en van de produkten waarop het betrekking heeft, met een beknopte omschrijving van het doel en de reden van het technisch voorschrift, met inbegrip van de aard van de dringende problemen;

  • 2.10.2 op daartoe strekkend verzoek de andere Leden de tekst van dit technisch voorschrift doet toekomen;

  • 2.10.3 de ander Leden, zonder discriminatie, in de gelegenheid stelt schriftelijke commentaar naar voren te brengen, desgevraagd van gedachten wisselt over deze commentaar en rekening houdt met het resultaat van deze gedachtenwisseling.

• 2.11 De Leden dragen zorg dat alle technische voorschriften die worden aangenomen onverwijld worden gepubliceerd of op zodanige wijze worden bekendgemaakt dat belanghebbenden in de andere Leden daarvan kennis kunnen nemen.

• 2.12 Behalve in de spoedeisende omstandigheden bedoeld in artikel 10 nemen de Leden een redelijke termijn in acht tussen de bekendmaking van een technisch voorschrift en de inwerkingtreding daarvan, ten einde de producenten in de exporterende Leden, in het bijzonder de Leden die ontwikkelingslanden zijn, voldoende gelegenheid te geven hun produkten of produktiemethoden aan de eisen van het importerende Lid aan te passen.

Artikel 3. Opstellen, aannemen en toepassing van technische voorschriften door lokale overheidsorganen en niet-gouvernementele organen

Wat de lokale overheidsorganen en de niet-gouvernementele organen op hun grondgebied betreft:

• 3.1 Nemen de Leden alle hun ter beschikking staande redelijke maatregelen om ervoor te zorgen dat de bepalingen van artikel 2, met uitzondering van de in artikel 2, leden 9.2 en 10.1 bedoelde verplichting tot kennisgeving, door deze organen worden nageleefd.

• 3.2 Dragen de Leden zorg dat de technische voorschriften van de rechtstreeks onder de centrale overheid ressorterende lokale overheden van de Leden overeenkomstig het bepaalde in artikel 2, leden 9.2. en 10.1 worden bekendgemaakt, met dien verstande dat deze kennisgeving niet vereist is voor technische voorschriften waarvan de technische inhoud in wezen dezelfde is als die van eerder bekendgemaakte technische voorschriften van centrale overheidsorganen van het betrokken Lid.

• 3.3 Kunnen de Leden bepalen dat de contacten met andere Leden, met inbegrip van kennisgevingen, het verstrekken van informatie, het naar voren brengen van commentaar en de gedachtenwisselingen bedoeld in artikel 2, lid 9 en lid 10, via de centrale overheid plaatsvinden.

• 3.4 Onthouden de Leden zich van maatregelen die lokale overheidsorganen of niet-gouvernementele organen op hun grondgebied ertoe verplichten of bewegen te handelen op een wijze die onverenigbaar is met de bepalingen van artikel 2.

• 3.5 Dragen de Leden uit hoofde van deze Overeenkomst de volledige verantwoordelijkheid voor de naleving van alle bepalingen van artikel 2. De Leden verbinden zich ertoe positieve maatregelen en mechanismen ter bevordering van de naleving van artikel 2 door andere dan centrale overheidsorganen vast te stellen en ten uitvoer te leggen.

Artikel 4. Opstellen, aannemen en toepassing van normen

• 4.1 De Leden dragen zorg dat de onder hun centrale overheid ressorterende normalisatie-instellingen de in bijlage 3 bij deze Overeenkomst opgenomen praktijkrichtlijn voor het opstellen, het aannemen en de toepassing van normen (hierna „praktijkrichtlijn" genoemd) aanvaarden en naleven. Zij nemen alle hun ter beschikking staande redelijke maatregelen om ervoor te zorgen dat onder de lokale autoriteiten ressorterende normalisatie-instellingen en niet-gouvernementele normalisatie-instellingen op hun grondgebied alsmede de regionale normalisatie-instellingen waarvan zij of één of meer organen op hun grondgebied lid zijn, deze praktijkrichtlijn aanvaarden en naleven. Voorts nemen de Leden geen maatregelen die dergelijke normalisatie-instellingen direct of indirect ertoe verplichten of bewegen te handelen op een wijze die onverenigbaar is met de praktijkrichtlijn. De verplichtingen van de Leden met betrekking tot de naleving van de praktijkrichtlijn door normalisatie-instellingen zijn van toepassing ongeacht of een normalisatie-instelling de praktijkrichtlijn heeft aanvaard of niet.

• 4.2 Normalisatie-instellingen die de praktijkrichtlijn hebben aanvaard en deze naleven worden door de Leden erkend als instellingen die de beginselen van deze Overeenkomst naleven.

OVEREENSTEMMING MET TECHNISCHE VOORSCHRIFTEN EN NORMEN

Artikel 5. Procedures voor het beoordelen van de conformiteit door centrale overheidsorganen

• 5.1 De Leden dragen zorg dat wanneer een uitdrukkelijke bevestiging van de overeenstemming met technische voorschriften of normen vereist is, hun centrale overheidsorganen ten aanzien van produkten van oorsprong uit het grondgebied van andere Leden de hiernavolgende bepalingen toepassen:

  • 5.1.1. conformiteitsbeoordelingsprocedures worden opgesteld, aangenomen en toegepast met het doel leveranciers van soortgelijke produkten van oorsprong uit het grondgebied van andere Leden toegang tot de markt te verschaffen onder voorwaarden die niet minder gunstig zijn dan die welke onder vergelijkbare omstandigheden voor leveranciers van soortgelijke produkten van nationale oorsprong of van oorsprong uit enig ander land gelden. Deze toegang houdt voor de leverancier het recht in op conformiteitsbeoordeling overeenkomstig de procedurevoorschriften, met inbegrip van, wanneer deze procedure daarin voorziet, de mogelijkheid de conformiteit in zijn bedrijfsruimten te doen beoordelen en zijn produkten het conformiteitsmerk te doen verlenen.

  • 5.1.2. het opstellen, het aannemen en de toepassing van conformiteitsbeoordelingsprocedures mag niet ten doel noch ten gevolge hebben dat onnodige belemmeringen voor het internationale handelsverkeer worden gecreëerd. Dit betekent onder meer dat conformiteitsbeoordelingsprocedures niet strikter mogen zijn, noch strikter mogen worden toegepast dan noodzakelijk is om het importerende Lid in staat te stellen zich ervan te overtuigen dat de betrokken produkten aan de technische voorschriften of normen beantwoorden, rekening houdend met de aan de niet conformiteit van deze produkten verbonden risico's.

• 5.2 Bij de tenuitvoerlegging van het bepaalde in lid 1 dragen de Leden zorg dat:

  • 5.2.1. de conformiteitsbeoordelingsprocedures zo snel mogelijk worden uitgevoerd en voltooid, zowel voor produkten van oorsprong uit het grondgebied van andere Leden als voor soortgelijke binnenlandse produkten;

  • 5.2.2. de normale duur van elke conformiteitsbeoordelingsprocedure wordt bekendgemaakt of de geraamde duur van de procedure de aanvrager op verzoek wordt medegedeeld. Bij ontvangst van een aanvraag gaat de bevoegde instantie onmiddellijk na of deze vergezeld gaat van alle noodzakelijke bescheiden en stelt zij de aanvrager nauwkeurig en volledig in kennis van alle onvolkomenheden. De bevoegde instantie deelt de aanvrager zo spoedig mogelijk de nauwkeurige en volledige resultaten van de conformiteitsbeoordeling mede, zodat, indien nodig, corrigerende maatregelen kunnen worden genomen. Zelfs wanneer de aanvraag leemten vertoont, legt de bevoegde instantie de beoordelingsprocedure op verzoek van de aanvrager in zoverre mogelijk ten uitvoer en wordt de aanvrager, indien hij daarom verzoekt, medegedeeld in welk stadium de procedure zich bevindt en worden alle vertragingen toegelicht.

  • 5.2.3. verzoeken om inlichtingen beperkt blijven tot hetgeen noodzakelijk is om de conformiteit te beoordelen en de omvang van de vergoedingen te bepalen;

  • 5.2.4. het vertrouwelijke karakter van de informatie betreffende produkten van oorsprong uit het grondgebied van andere leden die bij deze conformiteitsbeoordeling wordt verkregen of in verband daarmee wordt verstrekt op dezelfde wijze wordt gerespecteerd als het geval is voor binnenlandse produkten en op zodanige wijze dat de legitieme handelsbelangen van de betrokkenen worden beschermd;

  • 5.2.5. alle voor de conformiteitsbeoordeling van produkten van oorsprong uit het grondgebied van de andere Leden gevraagde vergoedingen billijk zijn in vergelijking met de vergoedingen die voor de conformiteitsbeoordeling van soortgelijke produkten van oorsprong uit het eigen land of van oorsprong uit enig ander land worden gevraagd, met inachtneming van de kosten van communicatie en vervoer en andere kosten die het gevolg zijn van het feit dat de bedrijfsruimten van de aanvrager en die van de met de conformiteitsbeoordeling belaste instantie op verschillende plaatsen gevestigd zijn.

  • 5.2.6. de vestigingsplaatsen van de voor de conformiteitsbeoordeling gebruikte installaties en de monsterneming de aanvragers of hun vertegenwoordigers geen onnodige moeilijkheden bezorgen;

  • 5.2.7. wanneer de specificaties van een produkt worden gewijzigd nadat de conformiteit daarvan met technische voorschriften of normen werd vastgesteld, de conformiteitsbeoordelingsprocedure voor het gewijzigde produkt beperkt blijft tot hetgeen noodzakelijk is om met voldoende zekerheid te bepalen dat het produkt nog steeds aan de betrokken technische voorschriften of normen voldoet;

  • 5.2.8. er een procedure is voor het onderzoek van klachten in verband met de werking van een conformiteitsbeoordelingsprocedure en voor het nemen van corrigerende maatregelen wanneer een klacht gegrond wordt bevonden.

• 5.3 Geen enkele bepaling van de leden 1 en 2 vormt voor de Leden een beletsel om, binnen redelijke grenzen, op hun grondgebied steekproefcontroles uit te voeren.

• 5.4 In gevallen waarin uitdrukkelijk moet worden bevestigd dat produkten in overeenstemming zijn met de technische voorschriften of normen en hieromtrent leidraden of aanbevelingen van internationale normalisatie-instellingen bestaan of dergelijke leidraden of aanbevelingen over korte tijd beschikbaar zullen zijn, dragen de Leden zorg dat de centrale overheidsorganen deze leidraden of aanbevelingen, of althans de relevante delen daarvan, als grondslag voor hun conformiteitsbeoordelingsprocedures gebruiken, tenzij dergelijke leidraden of aanbevelingen, zoals op verzoek uitvoerig wordt toegelicht, voor de betrokken Leden ongeschikt zijn om redenen in verband met, onder meer: de nationale veiligheid, de voorkoming van misleidende praktijken, de bescherming van de gezondheid of de veiligheid van mensen en van het leven of de gezondheid van dieren of planten of van het milieu; fundamentele klimatologische of andere geografische factoren en fundamentele technologische of infrastructurele problemen.

• 5.5 Met het oog op een zo ruim mogelijke harmonisatie van de conformiteitsbeoordelingsprocedures nemen de Leden, binnen de grenzen van hun mogelijkheden, volledig deel aan het opstellen van leidraden of aanbevelingen voor deze procedures door de bevoegde internationale normalisatie-instellingen.

• 5.6 De Leden verbinden zich ertoe, wanneer geen toepasselijke leidraad of aanbeveling van een internationale normalisatie-instelling voorhanden is of de technische inhoud van een voorgestelde conformiteitsbeoordelingsprocedure niet in overeenstemming is met de desbetreffende leidraden of aanbevelingen van internationale normalisatie-instellingen en de conformiteitsbeoordelingsprocedure aanzienlijke consequenties kan hebben voor het handelsverkeer van ander Leden:

  • 5.6.1. tijdig en op zodanige wijze dat belanghebbenden in andere Leden daarvan kennis kunnen nemen, een bericht te publiceren waarin zij het voornemen te kennen geven een bepaalde conformiteitsbeoordelingsprocedure in te voeren;

  • 5.6.2. de andere Leden via het Secretariaat mede te delen op welke produkten de voorgestelde procedure betrekking heeft, met een beknopte omschrijving van het doel en van de redenen welke eraan ten grondslag liggen. Dergelijke kennisgevingen vinden in een voldoende vroeg stadium plaats, zodat nog wijzigingen kunnen worden aangebracht en rekening kan worden gehouden met commentaar;

  • 5.6.3. de andere Leden op hun verzoek bijzonderheden of de tekst van de voorgestelde procedure te doen toekomen en, indien mogelijk, aan te geven op welke punten deze wezenlijk van de leidraden of aanbevelingen van de internationale normalisatie-instellingen afwijkt;

  • 5.6.4. de andere Leden, zonder discriminatie, de gelegenheid te geven schriftelijke commentaar naar voren te brengen, op hun verzoek van gedachten te wisselen over deze commentaar en rekening te houden met deze schriftelijke commentaar en met het resultaat van de gedachtenwisselingen.

• 5.7 Onverminderd het bepaalde in de aanhef van lid 6 kan een Lid dat met dringende problemen inzake veiligheid, gezondheid, milieubescherming of nationale veiligheid geconfronteerd wordt of dreigt te worden geconfronteerd, indien het dit noodzakelijk acht bepaalde van de in lid 6 bedoelde maatregelen achterwege laten, op voorwaarde dat dit Lid bij het aannemen van de procedure:

  • 5.7.1. de andere Leden via het Secretariaat onverwijld in kennis stelt van de betrokken procedure en van de produkten waarop deze betrekking heeft, met een beknopte opgave van het nagestreefde doel en van de redenen welke aan de procedure ten grondslag liggen, met inbegrip van de aard van de dringende problemen;

  • 5.7.2. de andere Leden op hun verzoek de tekst van de procedure doet toekomen;

  • 5.7.3. de andere Leden, zonder discriminatie, de gelegenheid geeft schriftelijke commentaar naar voren te brengen, op hun verzoek van gedachten wisselt over deze commentaar en rekening houdt met deze schriftelijke commentaar en met het resultaat van de gedachtenwisseling.

• 5.8 De Leden dragen zorg dat alle conformiteitsbeoordelingsprocedures die worden aangenomen onverwijld worden bekendgemaakt of op een zodanige andere wijze toegankelijk worden gemaakt dat belanghebbenden en andere Leden daarvan kennis kunnen nemen.

• 5.9 Behalve in de in lid 7 bedoelde dringende gevallen nemen de Leden een redelijke termijn in acht tussen het bekendmaken van de vereisten in verband met de conformiteitsbeoordelingsprocedure en de inwerkingtreding daarvan ten einde de producenten in de exporterende Leden, in het bijzonder de Leden die ontwikkelingslanden zijn, voldoende tijd te geven om hun produkten of produktiemethoden aan de eisen van het importerende Lid aan te passen.

Artikel 6. Erkenning van de conformiteitsbeoordeling door organen van de centrale overheid

Wat de organen van hun centrale overheid betreft:

• 6.1 Zal het streven van de Leden zoveel mogelijk erop gericht zijn, onverminderd het bepaalde in lid 3 en lid 4, de resultaten van de conformiteitsbeoordelingsprocedures in andere Leden te doen aanvaarden, zelfs wanneer deze procedures verschillend zijn van hun eigen procedures, indien zij ervan overtuigd zijn dat deze procedures eenzelfde mate van conformiteit met de technische voorschriften en normen garanderen als hun eigen procedures. De Leden zijn het erover eens dat voorafgaand overleg noodzakelijk kan zijn ten einde een voor alle belanghebbenden aanvaardbaar akkoord te bereiken, meer bepaald wat betreft:

  • 6.1.1. de toereikende en duurzame technische deskundigheid van de organen die in het exporterende Lid bevoegd zijn voor het beoordelen van de conformiteit, zodat er geen twijfel over bestaat dat de resultaten van hun conformiteitsbeoordeling ook in de toekomst betrouwbaar zullen zijn. Indien, bijvoorbeeld door accreditering, wordt aangetoond dat de vorengenoemde organen de desbetreffende leidraden en aanbevelingen van de internationale normalisatie-instellingen opvolgen, kan dit als een aanwijzing worden beschouwd dat deze organen over een toereikende technische deskundigheid beschikken.

  • 6.1.2. het feit dat uitsluitend de resultaten van de door de bevoegde instanties in het exporterende Lid uitgevoerde conformiteitsbeoordelingen worden aanvaard.

• 6.2 De Leden dragen zorg dat hun conformiteitsbeoordelingsprocedures in zoverre mogelijk de tenuitvoerlegging van het bepaalde in lid 1 toelaten.

• 6.3 De Leden worden ertoe aangemoedigd de door andere Leden ingediende verzoeken om onderhandelingen over de sluiting van Overeenkomsten inzake wederzijdse erkenning van de resultaten van elkaars conformiteitsbeoordelingsprocedures in welwillende overweging te nemen. De Leden kunnen verlangen dat dergelijke Overeenkomsten aan de criteria van lid 1 voldoen en voor beide partijen aanvaardbaar zijn wat de mogelijkheid tot vereenvoudiging van de handel in de betrokken produkten betreft.

• 6.4 De Leden worden ertoe aangemoedigd de op het grondgebied van andere Leden gevestigde organen die bevoegd zijn voor het beoordelen van de conformiteit, aan hun conformiteitsbeoordelingsprocedures te laten deelnemen onder voorwaarden die niet minder gunstig zijn dan die welke aan de op hun grondgebied of op het grondgebied van enig ander land gevestigde organen worden toegekend.

Artikel 7. Procedures voor het beoordelen van de conformiteit door lokale overheidsorganen

Ten aanzien van de op hun grondgebied gevestigde lokale overheidsorganen:

• 7.1 Nemen de Leden alle hun ter beschikking staande redelijke maatregelen om ervoor te zorgen dat de genoemde organen de bepalingen van de artikelen 5 en 6 naleven, met uitzondering van de verplichting tot kennisgeving bedoeld in artikel 5, leden 6.2. en 7.1.

• 7.2 Dragen de Leden zorg dat de conformiteitsbeoordelingsprocedures die worden toegepast door rechtstreeks onder de centrale overheid ressorterende lokale overheidsorganen in de Leden overeenkomstig artikel 5, leden 6.2. en 7.1 worden medegedeeld, met dien verstande dat deze kennisgevingen niet vereist zijn voor conformiteitsbeoordelingsprocedures waarvan de technische inhoud in wezen gelijk is aan die van eerder medegedeelde conformiteitsbeoordelingsprocedures van de centrale overheidsorganen van de betrokken Leden.

• 7.3 De Leden kunnen eisen dat de contacten met andere Leden, inclusief de kennisgevingen, het verstrekken van informatie, het naar voren brengen van commentaar en de gedachtenwisselingen bedoeld in artikel 5, leden 6 en 7, via de centrale overheid plaatsvinden.

• 7.4 De Leden nemen geen maatregelen die lokale overheidsorganen op hun grondgebied ertoe verplichten of bewegen te handelen op een wijze die onverenigbaar is met de bepalingen van de artikelen 5 en 6.

• 7.5 De Leden dragen bij de tenuitvoerlegging van deze Overeenkomst de volledige verantwoordelijkheid voor de naleving van alle bepalingen van de artikelen 5 en 6. De Leden zullen positieve maatregelen en mechanismen tot stand brengen en ten uitvoer leggen ten einde de naleving van het bepaalde in de artikelen 5 en 6 door andere dan centrale overheidsorganen te bevorderen.

Artikel 8. Door niet-gouvernementele organen toegepaste procedures voor het beoordelen van de conformiteit

• 8.1 De Leden nemen alle hun ter beschikking staande redelijke maatregelen om ervoor te zorgen dat niet-gouvernementele organen op hun grondgebied die conformiteitsbeoordelingsprocedures toepassen de artikelen 5 en 6 naleven, met uitzondering van de verplichting tot kennisgeving van voorgestelde conformiteitsbeoordelingsprocedures. Bovendien nemen de Leden geen maatregelen die dergelijke organen direct of indirect ertoe verplichten of bewegen te handelen op een wijze die onverenigbaar is met de bepalingen van de artikelen 5 en 6.

• 8.2 De Leden zien er op toe dat hun centrale overheidsorganen de door niet-gouvernementele organen toegepaste conformiteitsbeoordelingsprocedures enkel gebruiken indien laatstgenoemde organen de bepalingen van de artikelen 5 en 6 naleven, met uitzondering van de verplichting tot kennisgeving van voorgestelde conformiteitsbeoordelings- procedures.

Artikel 9. Internationale en regionale systemen

• 9.1 Wanneer een uitdrukkelijke bevestiging van conformiteit met een technisch voorschrift of een norm vereist is, dienen de leden, voor zover dit in de praktijk uitvoerbaar is, internationale systemen voor conformiteitsbeoordeling tot stand te brengen en te aanvaarden, waarvan zij lid worden of waaraan zij deelnemen.

• 9.2 De Leden nemen alle hun ter beschikking staande redelijke maatregelen opdat de internationale en regionale conformiteitsbeoordelingssystemen waarvan de bevoegde organen op hun grondgebied Lid zijn of waaraan deze deelnemen, voldoen aan de bepalingen van de artikelen 5 en 6. Voorts nemen de Leden geen maatregelen die direct of indirect ertoe leiden of bevorderen dat dergelijke systemen functioneren op een wijze die onverenigbaar is met de bepalingen van de artikelen 5 en 6.

• 9.3 De Leden zien er op toe dat hun centrale overheidsorganen de internationale of regionale conformiteitsbeoordelingssystemen slechts gebruiken voor zover deze systemen in overeenstemming zijn met de bepalingen van, al naar gelang van het geval, de artikelen 5 en 6.

INFORMATIE EN BIJSTAND

Artikel 10. Informatie betreffende technische voorschriften, normen en conformiteitsbeoordelingsprocedures

• 10.1 Ieder Lid zorgt voor een informatiepunt dat alle redelijke verzoeken om inlichtingen van andere Leden en belanghebbenden in andere Leden kan beantwoorden en dat relevante documenten kan verschaffen met betrekking tot:

  • 10.1.1. alle technische voorschriften die op zijn grondgebied zijn aangenomen of voorgesteld door organen van de centrale of de lokale overheid, niet-gouvernementele organen die wettelijk bevoegd zijn de naleving van een technisch voorschrift te handhaven of regionale normalisatie-instellingen waarvan deze organen lid zijn of waaraan zij deelnemen;

  • 10.1.2. alle normen die op zijn grondgebied zijn aangenomen of voorgesteld door centrale of lokale overheidsorganen of door regionale normalisatie-instellingen waarvan deze organen lid zijn of waaraan zij deelnemen;

  • 10.1.3. alle conformiteitsbeoordelingsprocedures of voorgestelde conformiteitsbeoordelingsprocedures die op zijn grondgebied worden toegepast door centrale of lokale overheidsorganen of door niet-gouvernementele organen die wettelijk bevoegd zijn de naleving van een technisch voorschrift te handhaven of door regionale organen waarvan dergelijke organen lid zijn of waaraan zij deelnemen;

  • 10.1.4. het lidmaatschap van en de deelneming aan internationale of regionale normalisatie-instellingen, conformiteitsbeoordelingssystemen en bilaterale en multilaterale regelingen, van het Lid of van de bevoegde centrale of lokale overheidsorganen op zijn grondgebied, in het kader van deze Overeenkomst; voorts dient ieder Lid in staat te zijn redelijke informatie te verschaffen over de inhoud van dergelijke systemen en regelingen;

  • 10.1.5. de vindplaats van de krachtens deze Overeenkomst gepubliceerde berichten of het verstrekken van informatie omtrent de plaats waar dergelijke inlichtingen kunnen worden verkregen; en

  • 10.1.6. de plaats waar de in lid 3 bedoelde informatiepunten zich bevinden.

• 10.2 Indien een Lid, om wettelijke of administratieve redenen, meer dan één informatiepunt opricht, verschaft dit Lid de andere Leden volledige en duidelijke informatie omtrent de taken en de verantwoordelijkheid van elk informatiepunt. Voorts ziet dit Lid er op toe dat alle verzoeken om inlichtingen die aan een verkeerd informatiepunt worden gericht onmiddellijk naar het juiste informatiepunt worden doorverwezen.

• 10.3 Elk Lid treft alle hem te beschikking staande redelijke maatregelen opdat één of meer informatiepunten alle redelijke verzoeken om inlichtingen van andere Leden en belanghebbenden in andere Leden kunnen beantwoorden en, bovendien, relevante documenten of informatie over de vindplaats daarvan kunnen verschaffen, meer bepaald met betrekking tot:

  • 10.3.1. alle normen die op zijn grondgebied zijn aanvaard of voorgesteld door niet-gouvernementele normalisatie-instellingen of regionale normalisatie-instellingen waarvan dergelijke instellingen lid zijn of waaraan zij deelnemen; en

  • 10.3.2. alle conformiteitsbeoordelingsprocedures of voorgestelde conformiteitsbeoordelingsprocedures die op zijn grondgebied worden toegepast door niet-gouvernementele organen of regionale organen waarvan dergelijke organen Lid zijn of waaraan zij deelnemen;

  • 10.3.3. het lidmaatschap van en de deelneming aan internationale en regionale normalisatie-instellingen, conformiteitsbeoordelingssystemen en bilaterale en multilaterale regelingen, van de bevoegde niet-gouvernementele organen op zijn grondgebied, in het kader van deze Overeenkomst; voorts dient elk Lid in staat te zijn redelijke informatie te verschaffen over de inhoud van dergelijke systemen en regelingen;

• 10.4 De Leden nemen alle hun ter beschikking staande redelijke maatregelen om ervoor te zorgen dat wanneer andere Leden of belanghebbenden in andere Leden overeenkomstig het bepaalde in deze Overeenkomst om afschriften van documenten verzoeken, deze ter beschikking worden gesteld tegen een redelijke prijs (voor zover zij niet gratis worden verstrekt) die, afgezien van de werkelijke portokosten, dezelfde is voor onderdanenVoor afzonderlijke douanegebieden die Lid zijn van de WTO worden onder „onderdanen" verstaan personen, zowel natuurlijke personen als rechtspersonen, die hun woonplaats hebben in dit douanegebied of aldaar een werkelijke en functionerende industriële of commerciële vestiging hebben. van het betrokken Lid als voor onderdanen van andere Leden.

• 10.5 Leden die ontwikkelde landen zijn zorgen op verzoek van andere Leden voor vertalingen in het Engels, het Frans of het Spaans van de documenten waarop een bepaald bericht betrekking heeft. Wanneer het omvangrijke documenten betreft, stellen zij samenvattingen van deze documenten ter beschikking.

• 10.6 Wanneer het Secretariaat kennisgevingen ontvangt uit hoofde van deze Overeenkomst, doet het de tekst van deze kennisgevingen toekomen aan alle Leden en belanghebbende internationale normalisatie-instellingen en conformiteitsbeoordelingsorganen en vestigt het de aandacht van de Leden die ontwikkelingslanden zijn op alle kennisgevingen die betrekking hebben op produkten die voor deze Leden van bijzonder belang zijn.

• 10.7 Wanneer een Lid met een ander land of andere landen een overeenkomst heeft gesloten over onderwerpen die verband houden met technische voorschriften, normen en conformiteitsbeoordelingsprocedures die aanzienlijke consequenties kunnen hebben voor het handelsverkeer, geeft tenminste één Lid dat partij is bij de overeenkomst de andere Leden via het Secretariaat kennis van de produkten waarop de overeenkomst betrekking heeft, met een korte beschrijving van de overeenkomst. De betrokken Leden worden ertoe aangemoedigd, indien zij daarom worden verzocht, in overleg te treden met andere Leden met het oog op de sluiting van soortgelijke overeenkomsten of ten einde de toetreding van deze Leden tot dergelijke overeenkomsten mogelijk te maken.

• 10.8 Geen enkele bepaling van deze Overeenkomst wordt uitgelegd als een verplichting tot:

  • 10.8.1. het publiceren van teksten in andere talen dan die van het betrokken Lid;

  • 10.8.2. het verstrekken van bijzonderheden of de tekst van ontwerpen in andere talen dan die van het betrokken Lid, behoudens het bepaalde in lid 5; of

  • 10.8.3. het verstrekken door de Leden van informatie waarvan de bekendmaking huns inziens strijdig is met hun fundamentele veiligheidsbelangen.

• 10.9 Kennisgevingen aan het Secretariaat zijn in het Engels, het Frans of het Spaans gesteld.

• 10.10 De Leden wijzen één enkele centrale overheidsinstantie aan die verantwoordelijk is voor de toepassing op nationaal niveau van de bepalingen betreffende de kennisgevingsprocedures uit hoofde van deze Overeenkomst, met uitzondering van die bedoeld in bijlage 3.

• 10.11 Indien evenwel om wettelijke of administratieve redenen de verantwoordelijkheid voor kennisgevingsprocedures door twee of meer centrale overheidsinstanties gedeeld wordt, verschaft het betrokken Lid de andere Leden volledige en duidelijke informatie over het gebied waarvoor elk van deze instanties verantwoordelijk is.

Artikel 11. Technische bijstand aan andere Leden

• 11.1 De Leden verstrekken de andere Leden, in het bijzonder de Leden die ontwikkelingslanden zijn, op verzoek advies omtrent het opstellen van technische voorschriften.

• 11.2 De Leden verstrekken de andere Leden, in het bijzonder de Leden die ontwikkelingslanden zijn, op verzoek advies en verlenen deze Leden, op onderling overeengekomen voorwaarden, technische bijstand bij de oprichting van nationale normalisatie-instellingen en de deelneming aan internationale normalisatie-instellingen en moedigen hun nationale normalisatie-instellingen aan op dezelfde wijze te handelen.

• 11.3 De Leden treffen, indien zij daarom worden verzocht, alle hun ter beschikking staande redelijke maatregelen om te bewerkstellingen dat de op hun grondgebied gevestigde regelgevende organen de andere Leden, in het bijzonder de Leden die ontwikkelingslanden zijn, advies geven en deze Leden op onderling overeengekomen voorwaarden technische bijstand verlenen met betrekking tot:

  • 11.3.1. de oprichting van regelgevende organen of organen die bevoegd zijn de conformiteit met technische voorschriften te beoordelen; en

  • 11.3.2. de methoden waarmee het best aan hun technische voorschriften kan worden voldaan.

• 11.4 De Leden treffen op verzoek alle hun ter beschikking staande redelijke maatregelen om ervoor te zorgen dat advies wordt verstrekt aan andere Leden, in het bijzonder aan Leden die ontwikkelingslanden zijn, en verlenen deze Leden op onderling overeengekomen voorwaarden technische bijstand bij de oprichting van organen die bevoegd zijn voor het beoordelen van de conformiteit met op het grondgebied van het verzoekende Lid aangenomen normen.

• 11.5 De Leden verstrekken de andere Leden, in het bijzonder de Leden die ontwikkelingslanden zijn, op verzoek advies en verlenen deze Leden op onderling overeengekomen voorwaarden technische bijstand met betrekking tot de maatregelen die de producenten in deze landen zouden moeten nemen om toegang te verkrijgen tot de conformiteitsbeoordelingssystemen die worden toegepast door overheidsorganen of niet-gouvernementele organen op het grondgebied van het Lid dat het verzoek ontvangt.

• 11.6 Leden die lid zijn van of deelnemen aan internationale of regionale conformiteitsbeoordelingssystemen verstrekken andere Leden, in het bijzonder Leden die ontwikkelingslanden zijn, op verzoek advies en verlenen deze Leden op onderling overeengekomen voorwaarden technische bijstand bij de oprichting van de instellingen en de totstandbrenging van de juridische structuur die hen in staat stellen de uit het lidmaatschap van of de deelneming aan dergelijke systemen voortvloeiende verplichtingen na te komen.

• 11.7 De Leden die daarom worden verzocht moedigen de organen op hun grondgebied die lid zijn van of deelnemen aan internationale of regionale conformiteitsbeoordelingssystemen ertoe aan de andere Leden, in het bijzonder de Leden die ontwikkelingslanden zijn, advies te verstrekken en nemen verzoeken om technische bijstand van deze landen met het oog op de oprichting van instellingen die de ter zake bevoegde organen op hun grondgebied in staat stellen de uit het lidmaatschap of de deelneming voortvloeiende verplichtingen na te komen in welwillende overweging.

• 11.8 Bij het verstrekken van advies en technische bijstand aan andere Leden, overeenkomstig het bepaalde in de leden 1 tot en met 7, geven de Leden voorrang aan de behoeften van Leden die minstontwikkelde landen zijn.

Artikel 12. Bijzondere en gedifferentieerde behandeling van Leden die ontwikkelingslanden zijn

• 12.1 De Leden verlenen de Leden die ontwikkelingslanden zijn een gedifferentieerde en gunstiger behandeling door de toepassing van de hiernavolgende bepalingen en van de relevante bepalingen van andere artikelen van deze Overeenkomst.

• 12.2 De Leden schenken bijzondere aandacht aan de bepalingen van deze Overeenkomst die betrekking hebben op de rechten en verplichtingen van Leden die ontwikkelingslanden zijn en houden rekening met de bijzondere behoeften op het gebied van ontwikkeling, financiën en handel van laatstgenoemde Leden bij de toepassing van deze Overeenkomst, zowel op nationaal niveau als bij de toepassing van de institutionele regelingen van deze Overeenkomst.

• 12.3 Bij het opstellen en de toepassing van technische voorschriften, normen en conformiteitsbeoordelingsprocedures houden de Leden rekening met de bijzondere behoeften van de Leden die ontwikkelingslanden zijn, met name op het gebied van de ontwikkeling, de financiering en de handel, ten einde te voorkomen dat deze technische voorschriften, normen en conformiteitsbeoordelingsprocedures onnodige belemmeringen doen ontstaan voor de uitvoer van de Leden die ontwikkelingslanden zijn.

• 12.4 De Leden aanvaarden dat de Leden die ontwikkelingslanden zijn, ondanks het bestaan van internationale normen, richtsnoeren en aanbevelingen, gezien de bijzondere technologische en socio-economische omstandigheden waarin zij verkeren, bepaalde technische voorschriften, normen of conformiteitsbeoordelingsprocedures vaststellen met het doel de aan hun ontwikkelingsbehoeften beantwoordende inheemse technologie en produktiemethoden en processen in stand te houden. De Leden erkennen derhalve dat van de Leden die ontwikkelingslanden zijn niet kan worden verlangd dat zij als grondslag voor hun technische voorschriften of normen, met inbegrip van de beproevingsmethoden, internationale normen hanteren die niet aan hun behoeften inzake ontwikkeling, financiën en handel beantwoorden.

• 12.5 De Leden treffen alle hun ter beschikking staande redelijke maatregelen om te bewerkstelligen dat de internationale normalisatie-instellingen en de internationale conformiteitsbeoordelingssystemen worden georganiseerd en functioneren op een wijze die bevorderlijk is voor een actieve en representatieve deelname van de betrokken organen van alle Leden, rekening houdend met de specifieke problemen van de Leden die ontwikkelingslanden zijn.

• 12.6 De Leden treffen alle hun ter beschikking staande redelijke maatregelen om ervoor te zorgen dat de internationale normalisatie-instellingen op verzoek van Leden die ontwikkelingslanden zijn nagaan of het mogelijk is internationale normen vast te stellen en, indien zulks in de praktijk uitvoerbaar is, dergelijke normen vaststellen voor produkten die voor de laatstgenoemde Leden van bijzonder belang zijn.

• 12.7 Overeenkomstig het bepaalde in artikel 11 verlenen de Leden technische bijstand aan de Leden die ontwikkelingslanden zijn ten einde ervoor te zorgen dat het opstellen en de toepassing van technische voorschriften, normen en conformiteitsbeoordelingsprocedures geen onnodige belemmeringen vormen voor de uitbreiding en de diversificatie van de uitvoer van de Leden die ontwikkelingslanden zijn. Bij het vaststellen van de voorwaarden voor deze technische bijstand wordt rekening gehouden met het ontwikkelingsstadium waarin de verzoekende Leden, in het bijzonder de Leden die minstontwikkelde landen zijn, zich bevinden.

• 12.8 Erkend wordt dat de Leden die ontwikkelingslanden zijn bijzondere moeilijkheden, met name van institutionele en infrastructurele aard, kunnen ondervinden bij het opstellen en toepassen van technische voorschriften, normen en conformiteitsbeoordelingsprocedures. Voorts wordt erkend dat de bijzondere behoeften op het gebied van ontwikkeling en handel van de Leden die ontwikkelingslanden zijn alsmede het stadium van hun technologische ontwikkeling, voor deze landen een belemmering kunnen vormen voor de volledige nakoming van de uit de Overeenkomst voortvloeiende verplichtingen. De Leden houden hiermee derhalve volledig rekening. Ten einde de Leden die ontwikkelingslanden zijn in staat te stellen aan het bepaalde in deze Overeenkomst te voldoen, wordt de Commissie technische handelsbelemmeringen bedoeld in artikel 13 (in deze Overeenkomst „de Commissie" genoemd) derhalve gemachtigd, indien zij daarom wordt verzocht, op specifieke punten gehele of gedeeltelijke tijdelijke ontheffing van de uit deze Overeenkomst voortvloeiende verplichtingen te verlenen. Bij de behandeling van deze verzoeken houdt de Commissie rekening met de bijzondere problemen die de Leden die ontwikkelingslanden zijn ontmoeten bij het opstellen en de toepassing van technische voorschriften, normen en conformiteitsbeoordelingsprocedures en met de bijzondere behoeften van deze landen op het gebied van handel en ontwikkeling. Voorts houdt de Commissie rekening met het ontwikkelingsstadium van deze landen, dat een belemmering kan vormen voor de volledige nakoming van de uit deze Overeenkomst voortvloeiende verplichtingen. De Commissie houdt in het bijzonder rekening met de specifieke problemen van de Leden die minstontwikkelde landen zijn.

• 12.9 Tijdens het overleg schenken de Leden die ontwikkelde landen zijn aandacht aan de bijzondere moeilijkheden die de Leden die ontwikkelingslanden zijn ondervinden bij het opstellen en de toepassing van normen, technische voorschriften en conformiteitsbeoordelingsprocedures. In hun streven de Leden die ontwikkelingslanden zijn hierin bij te staan, houden de Leden die ontwikkelde landen zijn rekening met de bijzondere behoeften van de eerstgenoemde landen op het gebied van financiering, handel en ontwikkeling.

• 12.10 De Commissie onderzoekt op gezette tijden de bij deze Overeenkomst vastgestelde bijzondere en gedifferentieerde behandeling die op nationaal en internationaal niveau wordt toegekend aan de Leden die ontwikkelingslanden zijn.

INSTELLINGEN, OVERLEG EN GESCHILLENBESLECHTING

Artikel 13. De Commissie technische handelsbelemmeringen

• 13.1 Er wordt een Commissie technische handelsbelemmeringen ingesteld, bestaande uit vertegenwoordigers van elk der Leden. De Commissie kiest haar Voorzitter en komt zo dikwijls bijeen als nodig is, doch ten minste éénmaal per jaar, ten einde de Leden de gelegenheid te geven met elkaar van gedachten te wisselen over alle zaken die verband houden met de werking van deze Overeenkomst of het bevorderen van de doelstellingen daarvan en vervult de taken waarmee zij ingevolge deze Overeenkomst of door de Leden wordt belast.

• 13.2 De Commissie richt, al naar gelang van het geval, werkgroepen of andere organen op die de taken vervullen waarmee zij door de Commissie worden belast overeenkomstig de ter zake geldende bepalingen van deze Overeenkomst.

• 13.3 Er bestaat overeenstemming over de noodzaak alle onnodige doublures tussen de uit deze Overeenkomst voortvloeiende werkzaamheden en die welke door de overheidsdiensten in andere technische organen worden uitgevoerd te vermijden. De Commissie onderzoekt dit probleem ten einde dergelijke doublures tot een minimum te beperken.

Artikel 14. Overleg en geschillenbeslechting

• 14.1 Het overleg en de geschillenbeslechting met betrekking tot alle zaken die verband houden met de werking van deze Overeenkomst vinden onder auspiciën van het Orgaan voor geschillenbeslechting plaats overeenkomstig, mutatis mutandis, de bepalingen van de artikelen XXII en XXIII van de GATT 1994, zoals deze zijn uitgelegd in en worden uitgevoerd door het Memorandum van Overeenstemming inzake de regels en procedures voor geschillenbeslechting.

• 14.2 Op verzoek van een partij bij een geschil of eigener beweging kan een panel een groep van technische deskundigen oprichten om bijstand te verlenen bij de behandeling van vraagstukken van technische aard waarvoor bijzondere deskundigheid vereist is.

• 14.3 De groepen van technische deskundigen verrichten hun werkzaamheden volgens de procedures van bijlage 2.

• 14.4 De bovenstaande bepalingen inzake geschillenbeslechting kunnen worden toegepast in gevallen waarin een Lid van mening is dat een ander Lid geen bevredigende resultaten heeft bereikt bij de toepassing van de artikelen 3, 4, 7, 8 en 9 en zijn handelsbelangen ernstig worden geschaad. Dergelijke resultaten zijn wat dit betreft gelijkwaardig aan die welke zouden zijn bereikt indien het betrokken orgaan een Lid was.

SLOTBEPALINGEN

Artikel 15. Slotbepalingen

Voorbehouden

• 15.1 Zonder toestemming van de andere Leden mag geen voorbehoud worden gemaakt ten aanzien van de bepalingen van deze Overeenkomst.

Herziening

• 15.2 Onmiddellijk na de datum waarop de WTO-Overeenkomst voor een Lid in werking treedt, stelt dit Lid de Commissie in kennis van de bestaande maatregelen en van de maatregelen die het heeft genomen voor de toepassing en het beheer van deze Overeenkomst. Alle latere wijzigingen van dergelijke maatregelen worden de Commissie eveneens ter kennis gebracht.

• 15.3 De Commissie stelt jaarlijks, rekening houdend met de doelstellingen van de Overeenkomst, een onderzoek in naar de toepassing en de werking daarvan.

• 15.4 Uiterlijk aan het einde van het derde jaar, te rekenen vanaf de datum van inwerkingtreding van de WTO-Overeenkomst, en vervolgens aan het einde van elke periode van drie jaar, stelt de Commissie een onderzoek in naar de werking en de toepassing van deze Overeenkomst, met inbegrip van de bepalingen betreffende de doorzichtigheid, ten einde, indien nodig, een aanpassing van de uit deze Overeenkomst voortvloeiende rechten en verplichtingen aan te bevelen, met het doel, onverminderd de bepalingen van artikel 12, het wederzijds economisch voordeel en het evenwicht van rechten en verplichtingen te bewerkstelligen. Rekening houdend met, onder meer, de bij de toepassing van de Overeenkomst opgedane ervaring zal de Commissie de Raad voor de handel in goederen waar nodig voorstellen tot wijziging van de tekst van de Overeenkomst voorleggen.

Bijlagen

• 15.5 De bijlagen bij deze Overeenkomst maken daarvan integrerend deel uit.

Bijlage 1. Termen en definities voor de toepassing van deze Overeenkomst

De termen die zijn opgenomen in de zesde editie van ISO/IEC Leidraad 2 1991 „Algemene termen en hun definities met betrekking tot normalisatie en aanverwante activiteiten", hebben in deze Overeenkomst de betekenis die daaraan in de genoemde leidraad wordt toegekend, met dien verstande dat deze Overeenkomst niet van toepassing is op de handel in diensten.

Voor de toepassing van deze Overeenkomst gelden evenwel de volgende definities:

• 1. Technisch voorschrift

  Document waarin de produktkenmerken of de daarmee verband houdende procédés en produktiemethoden, met inbegrip van de desbetreffende administratieve bepalingen, zijn omschreven waarvan de naleving verplicht is. Het kan ook geheel of ten dele betrekking hebben op terminologische elementen, symbolen, voorschriften betreffende verpakking, merktekens of etikettering en procédés of produktiemethoden.

  Toelichting

  De in ISO/IEC Leidraad 2 opgenomen definitie staat niet op zichzelf doch is op het zogenaamde „bouwsteen"-systeem gebaseerd.

• 2. Norm

  Door een erkend orgaan goedgekeurd document dat bepaalde voor algemeen en herhaald gebruik bestemde regels, richtlijnen of produktkenmerken of daarmee verband houdende procédés en produktiemethoden bevat waarvan de naleving niet verplicht is. Het kan ook geheel of ten dele betrekking hebben op terminologische elementen, symbolen, voorschriften betreffende verpakking, merktekens of etikettering en procédés of produktiemethoden.

  Toelichting

  De in ISO/IEC Leidraad 2 gedefinieerde termen hebben betrekking op produkten, procédés en diensten. Deze Overeenkomst is uitsluitend van toepassing op technische voorschriften, normen en conformiteitsbeoordelingsprocedures die verband houden met produkten of procédés en produktiemethoden. De in ISO/IEC 2 gedefi- nieerde normen kunnen verplicht of facultatief zijn. Voor de toepassing van deze Overeenkomst worden normen als facultatieve en technische voorschriften als verplichte documenten gedefinieerd. De door de internationale normalisatiegemeenschap opgestelde normen zijn het resultaat van een consensus. Deze Overeenkomst heeft eveneens betrekking op documenten die niet op een consensus gebaseerd zijn.

• 3. Conformiteitsbeoordelingsprocedures

  Alle procedures die direct of indirect worden toegepast om na te gaan of aan bepaalde technische voorschriften of normen is voldaan.

  Toelichting

  Conformiteitsbeoordelingsprocedures omvatten, onder meer, procedures voor monsterneming, beproeving en inspectie; evaluatie, verificatie en controle van de conformiteit; registratie, erkenning en goedkeuring alsmede combinaties van deze handelingen.

• 4. Internationaal orgaan of systeem

  Orgaan of systeem waarvan de bevoegde organen van ten minste alle Leden lid kunnen worden.

• 5. Regionaal orgaan of systeem

  Orgaan of systeem waarvan de bevoegde organen van bepaalde Leden lid kunnen worden.

• 6. Centraal overheidsorgaan

  De centrale overheid en de ministeries en departementen daarvan of elk orgaan dat voor de betrokken activiteit onder toezicht staat van de centrale overheid.

  Toelichting

  Voor de Europese Gemeenschappen gelden de bepalingen betreffende de centrale overheidsorganen. Niettemin kunnen binnen de Europese Gemeenschappen regionale organen of conformiteitsbeoordelingssystemen worden ingesteld die in dergelijke gevallen onderworpen zijn aan de bepalingen van deze Overeenkomst die betrekking hebben op de regionale organen of de conformiteitsbeoordelingssystemen.

• 7. Lokaal overheidsorgaan

  Overheid andere dan een centrale overheid (bijvoorbeeld staten, provincies, Länder, kantons, gemeenten enz.)., alsmede ministeries of departementen daarvan dan wel elk orgaan dat voor de betrokken activiteit onder toezicht staat van een dergelijk overheidsorgaan.

• 8. Niet-gouvernementeel orgaan

  Orgaan ander dan een centraal overheidsorgaan of een lokaal overheidsorgaan, met inbegrip van niet-gouvernementele organen die wettelijk bevoegd zijn de naleving van een technisch voorschrift te handhaven.

Bijlage 2. Groepen van technische deskundigen

De volgende procedures zijn van toepassing op de overeenkomstig artikel 14 ingestelde groepen van technische deskundigen.

• 1. De groepen van technische deskundigen staan onder toezicht van het panel. Hun taakomschrijving en gedetailleerde procedures worden door het panel vastgesteld en de groep brengt verslag uit bij het panel.

• 2. Uitsluitend personen die over de vereiste deskundigheid en ervaring op het betrokken gebied beschikken kunnen aan de werkzaamheden van een groep van technische deskundigen deelnemen.

• 3. Onderdanen van partijen bij een geschil kunnen zonder de gezamenlijke toestemming van de bij het geschil betrokken partijen niet aan de werkzaamheden van een groep van technische deskundigen deelnemen, behoudens uitzonderlijke omstandigheden waarbij het panel van mening is dat op geen enkele andere wijze aan de behoefte aan specialistische wetenschappelijke kennis kan worden voldaan. Overheidsfunctionarissen van partijen bij het geschil mogen niet aan de werkzaamheden van een groep van technische deskundigen deelnemen. Leden van groepen van technische deskundigen handelen op persoonlijke titel en niet als vertegenwoordigers van de overheid, noch als vertegenwoordigers van een organisatie. Overheidsinstanties of organisaties geven deze personen derhalve geen instructies met betrekking tot de vraagstukken die door een groep van technische deskundigen worden onderzocht.

• 4. Een groep van technische deskundigen mag elke bron raadplegen die hij dienstig acht en daarvan informatie en technisch advies inwinnen. Voor een groep van technische deskundigen dergelijke inlichtingen of advies inwint bij een bron die zich binnen de jurisdictie van een Lid bevindt, stelt hij de overheidsinstellingen van dat Lid daarvan in kennis. Elk Lid geeft onmiddellijk en volledig gevolg aan alle door een groep van technische deskundigen ingediende verzoeken om informatie die de groep noodzakelijk en passend acht.

• 5. De partijen bij een geschil hebben toegang tot alle relevante informatie die aan een groep van technische deskundigen wordt verstrekt, tenzij deze informatie een vertrouwelijk karakter heeft. Aan een groep van technische deskundigen verstrekte vertrouwelijke informatie wordt niet vrijgegeven zonder de formele toestemming van de overheidsinstanties, organisatie of persoon die deze informatie heeft verstrekt. Wanneer de groep van technische deskundigen om dergelijke informatie wordt verzocht, doch de openbaarmaking daarvan door de groep van technische deskundigen niet is toegestaan, dan stelt de overheidsinstantie, organisatie of persoon die de informatie heeft verstrekt een niet vertrouwelijke samenvatting daarvan ter beschikking.

• 6. De groep van technische deskundigen legt de betrokken Leden een ontwerpverslag voor waarop deze commentaar kunnen geven. De groep houdt met deze commentaar op passende wijze rekening in zijn eindverslag dat, wanneer het aan het panel wordt voorgelegd, eveneens aan de Leden wordt toegezonden.

Bijlage 3. Praktijkrichtlijn voor het opstellen, het aannemen en de toepassing van normen

Algemene bepalingen

A.

Voor de toepassing van deze praktijkrichtlijn gelden de in Bijlage 1 bij deze Overeenkomst opgenomen definities.

B.

Deze praktijkrichtlijn kan worden aanvaard door alle op het grondgebied van een Lid van de WTO gevestigde normalisatie-instellingen, zowel organen van de centrale als van de lokale overheid en niet-gouvernementele organen, door alle regionale normalisatie-instellingen van de overheid waarvan een of meer leden Lid zijn van de WTO en door alle niet-gouvernementele regionale normalisatie-instellingen waarvan een of meer leden op het grondgebied van een Lid van de WTO gevestigd zijn (in deze praktijkrichtlijn collectief als „normalisatie-instellingen en individueel als de „normalisatie-instelling” aangeduid).

C.

Normalisatie-instellingen die deze praktijkrichtlijn aanvaarden of zich daarvan distantiëren geven hiervan kennis aan het ISO/IEC Informatiecentrum te Genève. Deze kennisgeving omvat de naam en het adres van de betrokken instelling en de reikwijdte van haar huidige en voorgenomen normalisatie-activiteiten. De kennisgeving wordt, al naar gelang van het geval, rechtstreeks aan het ISO/IEC Informatiecentrum toegezonden dan wel via de nationale instelling die lid is van de ISO/IEC of, bij voorkeur, via de bevoegde nationale instelling die lid is van ISONET of via de bevoegde internationale instelling die lid is van ISONET.

Materiële bepalingen

D.

Wat de normen betreft, verleent de normalisatie-instelling voor produkten van oorsprong uit het grondgebied van een ander Lid van de WTO geen minder gunstige behandeling dan die welke wordt toegekend aan soortgelijke produkten van nationale oorsprong en soortgelijke produkten van oorsprong uit andere landen.

E.

De normalisatie-instelling ziet er op toe dat het opstellen, het aannemen of de toepassing van normen niet ten doel noch ten gevolge hebben dat onnodige belemmeringen voor het internationale handelsverkeer ontstaan.

F.

Wanneer internationale normen bestaan of op zeer korte termijn tot stand zullen worden gebracht, gebruikt de normalisatie-instelling deze normen, of althans de relevante delen daarvan, als grondslag voor de normen die zij opstelt, behalve wanneer dergelijke internationale normen of de relevante delen daarvan ondoeltreffend of ongeschikt zouden zijn, bijvoorbeeld omdat zij onvoldoende bescherming bieden of wegens fundamentele klimatologische of geografische omstandigheden of fundamentele technologische problemen.

G.

Ten einde de normen op een zo ruim mogelijke grondslag te harmoniseren neemt de normalisatie-instelling op passende wijze en binnen de grenzen van haar mogelijkheden volledig deel aan het opstellen, door de ter zake bevoegde internationale normalisatie-instellingen, van internationele normen met betrekking tot de materie waarvoor zij normen heeft goedgekeurd of voornemens is dit te doen. De deelneming van de op het grondgebied van een Lid gevestigde normalisatie-instellingen aan een specifieke internationale normalisatie-activiteit geschiedt zoveel mogelijk via een enkele delegatie die alle op dat grondgebied gevestigde normalisatie-instellingen vertegenwoordigt die normen hebben aanvaard voor de materie waarop de internationale normalisatie-activiteit betrekking heeft of die voornemens zijn dit te doen.

H.

Een op het grondgebied van een Lid gevestigde normalisatie-instelling doet al het mogelijke om doublures of overlappingen met de werkzaamheden van andere normalisatie-instellingen op het nationale grondgebied of met de werkzaamheden van bevoegde internationale of regionale normalisatie-instellingen te vermijden. Voorts stellen zij alles in het werk om een nationale consensus te bereiken over de normen die zij opstellen. De regionale normalisatie-instelling doet eveneens al het mogelijke om doublures of overlappingen met de werkzaamheden van bevoegde internationale normalisatie-instellingen te vermijden.

I.

In alle daarvoor in aanmerking komende gevallen neemt de normalisatie-instelling bij het formuleren van op de produktvereisten gebaseerde normen de werking van het produkt als uitgangspunt, veeleer dan het ontwerp of de beschrijving daarvan.

J.

Ten minste éénmaal per halfjaar publiceert de normalisatie-instelling een werkprogramma waarin haar naam en adres zijn vermeld, evenals de normen die op dat ogenblik in voorbereiding zijn en de normen die zij in de voorafgaande periode heeft aangenomen. Een norm wordt geacht in voorbereiding te zijn vanaf het ogenblik waarop het besluit tot vaststelling daarvan is genomen tot het ogenblik waarop hij wordt aangenomen. De titels van specifieke ontwerpnormen worden op verzoek in het Engels, het Frans of het Spaans bekendgemaakt. Het bestaan van het werkprogramma wordt in een nationale of, in voorkomend geval, regionale publikatie inzake normalisatie-activiteiten bekendgemaakt.

Het werkprogramma vermeldt voor elke norm, overeenkomstig de ISONET-voorschriften, de classificatie van de betrokken materie, het stadium waarin de norm zich bevindt en een verwijzing naar alle internationale normen die aan de betrokken norm ten grondslag liggen. Uiterlijk op het tijdstip van publicatie van haar werkprogramma geeft de normalisatie-instelling daarvan kennis aan het ISO/IEC Informatiecentrum te Genève.

In deze kennisgeving worden de naam en het adres van de normalisatie-instelling vermeld evenals de naam en het nummer van de publicatie waarin het werkprogramma is bekendgemaakt, de periode waarop dit betrekking heeft, de prijs van deze publikatie (indien niet gratis beschikbaar) alsmede de wijze waarop en de plaats waar zij kan worden verkregen. De kennisgeving kan rechtstreeks aan het ISO/IEC Informatiecentrum worden toegezonden, dan wel, bij voorkeur, via het bevoegde nationale orgaan dat lid is van ISONET of het bevoegde internationale orgaan dat bij ISONET is aangesloten, al naar gelang van het geval.

K.

De nationale instelling die lid is van de ISO/IEC stelt alles in het werk om lid te worden van ISONET of om een andere instelling als lid aan te wijzen en, wat dit lidmaatschap betreft, de voor het ISONET-lid hoogst mogelijke status te bereiken. Andere normalisatie-instellingen doen al het mogelijke om zich met het ISONET-lid te associëren.

L.

Voor zij een norm goedkeuren nemen de normalisatie-instellingen een termijn van ten minste 60 dagen in acht waarbinnen de op het grondgebied van een Lid van de WTO gevestigde belanghebbenden commentaar kunnen geven op de ontwerp-norm. Deze termijn kan evenwel worden bekort indien zich dringende problemen voordoen of dreigen voor te doen in verband met de veiligheid, de gezondheid of het milieu. Uiterlijk op de datum waarop de termijn voor het leveren van commentaar ingaat, neemt de normalisatie-instelling in de in lid J bedoelde publicatie een bericht op waarin zij deze termijn aankondigt. In dit bericht wordt, indien mogelijk, aangegeven of de ontwerp-norm van de overeenkomstige internationale normen afwijkt.

M.

M. Op verzoek van een op het grondgebied van een Lid van de WTO gevestigde belanghebbende doet de normalisatie-instelling deze onmiddellijk een exemplaar van de voor commentaar voorgelegde ontwerp-norm toekomen of zorgt zij ervoor dat de belanghebbende een dergelijk exemplaar ontvangt. Voor deze dienst wordt van buitenlandse en binnenlandse belanghebbenden, afgezien van de werkelijke verzendingskosten, dezelfde vergoeding gevraagd.

N.

Bij de verdere uitwerking van de norm houdt de normalisatie-instelling rekening met de commentaar die zij gedurende de daarvoor vastgestelde termijn ontvangt. Commentaar die wordt ontvangen via normalisatie-instellingen die deze praktijkrichtlijn hebben aanvaard, wordt desgevraagd zo spoedig mogelijk beantwoord. In het antwoord dient te worden aangegeven om welke redenen een afwijking van de desbetreffende internationale normen noodzakelijk is.

O.

Zodra de norm is aangenomen, wordt deze gepubliceerd.

P.

Op verzoek van een op het grondgebied van een Lid van de WTO gevestigde belanghebbende doet de normalisatie-instelling deze ten spoedigste een exemplaar van haar meest recente werkprogramma of van een door haar opgestelde norm toekomen of zorgt zij ervoor dat de betrokken belanghebbende dergelijk exemplaar ontvangt. Buitenlandse en binnenlandse belanghebbenden betalen voor deze dienst, afgezien van de werkelijke verzendingskosten, dezelfde vergoeding.

Q.

De normalisatie-instelling neemt alle commentaar ten aanzien van de toepassing van deze praktijkrichtlijn die naar voren wordt gebracht door normalisatie-instellingen die deze praktijkrichtlijn hebben aanvaard welwillend in overweging en biedt voldoende gelegenheid voor overleg daaromtrent. Zij behandelt alle klachten op objectieve wijze.

Overeenkomst inzake de met de handel verband houdende investeringsmaatregelen

Overwegende dat de Ministers in de Verklaring van Punta del Este zijn overeengekomen dat „na onderzoek van de werking van de GATT-artikelen met betrekking tot het handelsbeperkende en -verstorende effect van investeringsmaatregelen, tijdens de onderhandelingen waar nodig aanvullende bepalingen ter voorkoming van dergelijke negatieve gevolgen voor het handelsverkeer dienen te worden uitgewerkt”;

Wensende de ontwikkeling en de geleidelijke liberalisatie van de wereldhandel te bevorderen en de grensoverschrijdende investeringen te vereenvoudigen ten einde de economische ontwikkeling van alle handelspartners, in het bijzonder van de Leden die ontwikkelingslanden zijn, te intensiveren, met inachtneming van de regels inzake de vrije mededinging;

Rekening houdende met de bijzondere behoeften op het gebied van handel, ontwikkeling en financiering van de Leden die ontwikkelingslanden zijn, in het bijzonder van de Leden die minstontwikkelde landen zijn;

Erkennende dat bepaalde investeringsmaatregelen een handelsbeperkend en -verstorend effect kunnen sorteren;

Zijn de Leden het volgende overeengekomen:

Artikel 1. Toepassingsgebied

Deze Overeenkomst is uitsluitend van toepassing op investeringsmaatregelen die betrekking hebben op de handel in goederen (in deze Overeenkomst „TRIMs” genoemd).

Artikel 2. Nationale behandeling en kwantitatieve beperkingen

• 1 Onverminderd de andere uit de GATT 1994 voortvloeiende rechten en verplichtingen passen de Leden geen TRIMs toe die onverenigbaar zijn met de bepalingen van artikel III of artikel XI van de GATT 1994.

• 2 In de bijlage bij deze Overeenkomst is een enuntiatieve lijst opgenomen van de TRIMs die onverenigbaar zijn met de verplichting tot nationale behandeling bedoeld in artikel III, lid 4 van GATT 1994 en de verplichting tot algemene afschaffing van kwantitatieve beperkingen bedoeld in artikel XI, lid 1 van GATT 1994.

Artikel 3. Uitzonderingen

Alle in de GATT 1994 vastgestelde uitzonderingen zijn, al naar gelang van het geval, van toepassing op de bepalingen van deze Overeenkomst.

Artikel 4. Leden die ontwikkelingslanden zijn

Een Lid dat een ontwikkelingsland is, mag tijdelijk van de bepalingen van artikel 2 afwijken in de mate en op de wijze als bedoeld in artikel XVIII van GATT 1994, het Memorandum van overeenstemming betreffende de betalingsbalansbepalingen van de GATT 1994 en de Verklaring inzake maatregelen ter bescherming van de betalingsbalans van 28 november 1979 (BISD 26S/205-209), waarbij een Lid wordt gemachtigd van de bepalingen van de artikelen III en XI van de GATT 1994 af te wijken.

Artikel 5. Kennisgeving en overgangsregelingen

• 1 Binnen 90 dagen, te rekenen vanaf de datum van inwerkingtreding van de WTO-Overeenkomst, geven de Leden de Raad voor de handel in goederen kennis van alle door hen toegepaste TRIMs die niet verenigbaar zijn met de bepalingen van deze Overeenkomst. Dergelijke TRIMs, hetzij van algemene, hetzij van specifieke aard, worden bekendgemaakt, evenals de belangrijkste kenmerken daarvan236.

• 2 Elk Lid beëindigt alle overeenkomstig lid 1 bekendgemaakte TRIMs. Binnen twee jaar na de datum van inwerkingtreding van de WTO-Overeenkomst wanneer het betrokken Lid een ontwikkeld land is, binnen vijf jaar wanneer dit Lid een ontwikkelingsland is en binnen zeven jaar wanneer dit Lid een minstontwikkeld land is.

• 3 Op daartoe strekkend verzoek kan de Raad voor de handel in goederen de overgangsperiode voor de beëindiging van overeenkomstig lid 1 bekendgemaakte TRIMs voor Leden die ontwikkelingslanden zijn en voor Leden die minstontwikkelde landen zijn, verlengen, indien deze Leden kunnen aantonen dat zij bijzondere moeilijkheden ondervinden bij de uitvoering van deze Overeenkomst. Bij de behandeling van dergelijke verzoeken houdt de Raad voor de handel in goederen rekening met de specifieke behoeften op het gebied van ontwikkeling, financiering en handel van het betrokken Lid.

• 4 Gedurende de overgangsperiode brengt een Lid in de bepalingen van de TRIMs die het overeenkomstig lid 1 heeft bekendgemaakt geen wijzigingen aan ten opzichte van de bepalingen die op de datum van inwerkingtreding van de WTO-Overeenkomst van toepassing waren, indien deze wijzigingen de mate van onverenigbaarheid met de bepalingen van artikel 2 zouden verhogen. TRIMs die minder dan 180 dagen voor de datum voor inwerkingtreding van de WTO-Overeenkomst werden vastgesteld komen niet in aanmerking voor de in lid 2 bedoelde overgangsregelingen.

• 5 Onverminderd het bepaalde in artikel 2 mag een Lid, ten einde gevestigde ondernemingen waarop een overeenkomstig lid 1 bekendgemaakte TRIM van toepassing is niet te benadelen, gedurende de overgangsperiode dezelfde TRIM op een nieuwe investering toepassen (i) indien de produkten die het resultaat zijn van deze investering vergelijkbaar zijn met die van de gevestigde ondernemingen, en (ii) wanneer zulks noodzakelijk is om te voorkomen dat de mededingingsverhoudingen tussen de nieuwe investering en de gevestigde ondernemingen worden verstoord. TRIMs die aldus op een nieuwe investering worden toegepast, worden de Raad voor de handel in goederen ter kennis gebracht. Dergelijke TRIMs hebben dezelfde gevolgen voor de concurrentieverhoudingen als die welke op de gevestigde ondernemingen van toepassing zijn en worden op hetzelfde tijdstip beëindigd.

Artikel 6. Doorzichtigheid

• 1 De Leden bevestigen, wat de TRIMs betreft, dat zij de verplichtingen inzake doorzichtigheid en kennisgeving zullen naleven die voortvloeien uit artikel X van de GATT 1994, de verbintenis inzake kennisgeving die in het op 28 november 1979 aangenomen Memorandum van Overeenstemming inzake Kennisgeving, Overleg, Geschillenbeslechting en Toezicht is opgenomen en de Ministeriële beschikking van 15 april 1994 inzake de kennisgevingsprocedures.

• 2 Elk Lid geeft het Secretariaat kennis van de publikaties waarin TRIMs zijn bekendgemaakt, met inbegrip van die welke door regionale en lokale overheden en autoriteiten op hun grondgebied worden toegepast.

• 3 Elk Lid neemt verzoeken om informatie in welwillende overweging en geeft voldoende gelegenheid tot overleg over alle uit deze Overeenkomst voortvloeiende problemen die door een ander Lid aan de orde worden gesteld. Ingevolge artikel X van de GATT 1994 is een Lid niet verplicht gegevens bekend te maken die de rechtshandhaving zouden belemmeren of anderszins strijdig zouden zijn met het algemeen belang of die de legitieme handelsbelangen van bepaalde ondernemingen, zowel overheidsondernemingen als particuliere ondernemingen, zouden schaden.

Artikel 7. Commissie voor met de handel verband houdende investeringsmaatregelen

• 1 Er wordt een Commissie voor met de handel verband houdende investeringsmaatregelen (in deze Overeenkomst „Commissie" genoemd) ingesteld waarin alle Leden zitting kunnen nemen. De Commissie kiest haar Voorzitter en Vice-voorzitter en komt ten minste éénmaal per jaar bijeen, evenals op verzoek van een Lid.

• 2 De Commissie voert de haar door de Raad voor de handel in goederen opgedragen taken uit en geeft de Leden gelegenheid tot overleg over alle zaken die verband houden met de werking en de tenuitvoerlegging van deze Overeenkomst.

• 3 De Commissie houdt toezicht op de werking en de tenuitvoerlegging van deze Overeenkomst en doet daarvan jaarlijks verslag aan de Raad voor de handel in goederen.

Artikel 8. Overleg en geschillenbeslechting

De bepalingen van de artikelen XXII en XXIII van GATT 1994, zoals deze zijn uitgelegd in en worden toegepast door het Memorandum van overeenstemming inzake de regels en procedures voor geschillenbeslechting, zijn van toepassing op het overleg en de beslechting van geschillen in het kader van deze Overeenkomst.

Artikel 9. Onderzoek door de Raad voor de handel in goederen

Uiterlijk vijf jaar na de datum van inwerkingtreding van de WTO-Overeenkomst stelt de Raad voor de handel in goederen een onderzoek in naar de werking van deze Overeenkomst en stelt hij de ministerconferentie indien nodig wijzigingen voor. Bij dit onderzoek gaat de Raad voor de handel in goederen na of de Overeenkomst dient te worden aangevuld met bepalingen betreffende het investeringsbeleid en het mededingingsbeleid.

Bijlage Enuntiatieve lijst

• 1. Onder TRIMs die onverenigbaar zijn met de verplichting tot het verlenen van de nationale behandeling als bedoeld in artikel III, lid 4 van de GATT 1994 worden onder meer verstaan die welke verplicht zijn of waarvan de toepassing kan worden afgedwongen door krachtens de nationale wetgeving of administratieve voorschriften of die ter verkrijging van een voordeel dienen te worden nageleefd en die voorschrijven:

  • a. dat een onderneming produkten van binnenlandse oorsprong of herkomst koopt of gebruikt, waarbij wordt aangegeven, hetzij om welke specifieke produkten of hoeveelheid of waarde het gaat, hetzij een verband wordt gelegd met de omvang of de waarde van de lokale produktie;

  • b. dat de aankoop en het gebruik van ingevoerde produkten door een onderneming beperkt blijft tot een hoeveelheid die aan de omvang of de waarde van de door deze onderneming uitgevoerde lokale produkten gerelateerd is.

• 2. Onder TRIMs die onverenigbaar zijn met de verplichting tot algemene afschaffing van de kwantitatieve beperkingen als bedoeld in artikel XI, lid 1 van de GATT 1994 worden onder meer verstaan die welke verplicht zijn of waarvan de toepassing kan worden afgedwongen krachtens door de nationale wetgeving of administratieve voorschriften of die ter verkrijging van een voordeel dienen te worden nageleefd en die beperkingen opleggen aan:

  • a. de invoer, door een onderneming, van produkten die bij of in verband met haar lokale produktie worden gebruikt, hetzij in algemene zin, hetzij voor een hoeveelheid die aan de omvang of de waarde van de uitgevoerde lokale produktie gerelateerd is;

  • b. de invoer, door een onderneming, van produkten die bij of in verband met haar lokale produktie worden gebruikt, doordat zij de toegang van deze onderneming tot buitenlandse valuta's beperken tot een hoeveelheid die gerelateerd is aan de hoeveelheid binnengekomen deviezen die aan deze ondernemingen kan worden toegerekend;

  • c. de uitvoer of de verkoop voor uitvoer van een onderneming, hetzij voor bepaalde produkten, hetzij voor een bepaalde hoeveelheid of waarde, hetzij voor een aan de lokale produktie gerelateerde hoeveelheid of waarde.

Overeenkomst inzake de toepassing van artikel VI van de Algemene Overeenkomst betreffende Tarieven en Handel 1994

DEEL I

Artikel 1. Beginselen

Anti-dumpingmaatregelen worden uitsluitend genomen in de omstandigheden bedoeld in artikel VI van de GATT 1994 nadat overeenkomstig het bepaalde in deze Overeenkomst een onderzoek is geopend237 en uitgevoerd. Wanneer maatregelen worden getroffen uit hoofde van de anti-dumpingwetgeving of -voorschriften geven de hiernavolgende bepalingen uitvoering aan artikel VI van de GATT 1994.

Artikel 2. Vaststelling van dumping

• 2.1 Voor de toepassing van deze Overeenkomst wordt een produkt geacht met dumping te zijn ingevoerd, met andere woorden in een ander land op de markt te zijn gebracht tegen een prijs die lager is dan zijn normale waarde, indien de prijs van dit produkt bij uitvoer naar een ander land lager is dan de vergelijkbare prijs, in het kader van normale handelstransacties, van het soortgelijke produkt dat voor verbruik in het land van uitvoer is bestemd.

• 2.2 Wanneer het soortgelijke produkt op de binnenlandse markt van het land van uitvoer niet in het kader van normale handelstransacties is verkocht, of indien het soortgelijke produkt daar wel is verkocht, maar indien het, vanwege de bijzondere marktsituatie of de geringe omvang van de verkoop op de binnenlandse markt van het land van uitvoer, 238 niet mogelijk is aan de hand daarvan een deugdelijke vergelijking te maken, wordt de dumpingmarge bepaald door vergelijking met, hetzij een vergelijkbare prijs van het soortgelijke produkt bij uitvoer naar een passend derde land, mits deze prijs representatief is, hetzij de produktiekosten in het land van oorsprong, vermeerderd met een redelijk bedrag voor administratiekosten, verkoopkosten, algemene kosten en winst.

  • 2.2.1. De verkoop van het soortgelijke produkt op de binnenlandse markt van het land van uitvoer of de verkoop aan een derde land tegen prijzen die lager zijn dan de produktiekosten (vaste en variabele) per éénheid, vermeerderd met verkoopkosten, administratiekosten en algemene kosten mag uitsluitend worden behandeld als verkoop die, gezien de prijs, niet in het kader van normale handelstransacties heeft plaatsgevonden en mag bij de vaststelling van de normale waarde buiten beschouwing worden gelaten, indien de autoriteiten239 vaststellen dat een dergelijke verkoop over een lange periode240 en in aanzienlijke hoeveelheden241 plaatsvindt tegen prijzen die het niet mogelijk maken binnen een redelijke termijn alle kosten terug te verdienen. Prijzen die op het tijdstip van de verkoop beneden de kostprijs liggen, doch die hoger zijn dan de gewogen gemiddelde kostprijs in het onderzoektijdvak, worden geacht toereikend te zijn om de betrokken producenten in staat te stellen hun kosten binnen een redelijke termijn terug te verdienen.

    • 2.2.1.1. Voor de toepassing van lid 2 worden de kosten normaliter berekend aan de hand van de administratie van de bij het onderzoek betrokken exporteur of producent, mits deze wordt gevoerd overeenkomstig methoden die in het land van uitvoer algemeen aanvaard zijn en een redelijk beeld geeft van de kosten die aan de vervaardiging en de verkoop van het betrokken produkt zijn verbonden. De autoriteiten houden rekening met al het beschikbare bewijsmateriaal betreffende de correcte kostenallocatie, met inbegrip van het bewijsmateriaal dat tijdens het onderzoek door de exporteur of de producent wordt verschaft, op voorwaarde dat dit betrekking heeft op de kostenallocatiemethode die de betrokken exporteur of producent in het verleden heeft gebruikt, meer bepaald bij het vaststellen van passende amortisatie- en afschrijvingstermijnen en correcties voor kapitaaluitgaven en andere ontwikkelingskosten. Tenzij bij de in deze alinea bedoelde kostenallocatie hiermede reeds rekening is gehouden, worden de kosten op passende wijze gecorrigeerd voor eenmalige kostenelementen die aan de toekomstige en/of de huidige produktie worden toegerekend, of voor omstandigheden waarin ze gedurende het onderzoektijdvak door het opstarten van produktieprocessen242 werden beïnvloed.

  • 2.2.2. Voor de toepassing van het bepaalde in lid 2 worden de bedragen voor administratiekosten, verkoopkosten, algemene kosten en winst gebaseerd op de feitelijke gegevens in verband met de produktie en de verkoop van het soortgelijke produkt in het kader van normale handelstransacties van de exporteur of producent waarop het onderzoek betrekking heeft. Wanneer deze bedragen niet op de bovenomschreven grondslag kunnen worden vastgesteld, mogen zij worden vastgesteld op basis van:

    • i. de werkelijke kosten en de winst van de betrokken exporteur of producent bij de vervaardiging en de verkoop van dezelfde algemene categorie produkten op de binnenlandse markt van het land van oorsprong;

    • ii. het gewogen gemiddelde van de werkelijke kosten en de winst van andere bij het onderzoek betrokken exporteurs en producenten bij de vervaardiging en de verkoop van het soortgelijke produkt op de binnenlandse markt van het land van oorsprong;

    • iii. elke andere redelijke methode, mits het aldus vastgestelde bedrag voor winst niet hoger is dan de winst die andere exporteurs en producenten bij de verkoop van produkten van dezelfde algemene categorie op de binnenlandse markt van het land van oorsprong gewoonlijk maken.

• 2.3 Wanneer geen exportprijs beschikbaar is of de betrokken autoriteiten van oordeel zijn dat deze prijs onbetrouwbaar is wegens het bestaan van een associatie of een compensatieregeling tussen de exporteur en de importeur of een derde partij, kan de exportprijs worden geconstrueerd aan de hand van de prijs waartegen de ingevoerde produkten voor het eerst aan een onafhankelijke afnemer worden verkocht of – indien de produkten niet aan een onafhankelijke afnemer worden wederverkocht of niet worden wederverkocht in de staat waarin zij werden ingevoerd – op een door de autoriteiten vastgestelde redelijke grondslag.

• 2.4 De exportprijs wordt op billijke wijze met de normale waarde vergeleken. Deze vergelijking geschiedt op hetzelfde handelsniveau, gewoonlijk het stadium af fabriek, en voor zo dicht mogelijk bij elkaar liggende verkoopdata. Voor elk geval wordt, naar gelang de bijzondere kenmerken van de zaak, rekening gehouden met verschillen die van invloed zijn op de vergelijkbaarheid van de prijzen, waaronder verschillen op het gebied van verkoopvoorwaarden en -omstandigheden, belastingen en heffingen, handelsniveau, hoeveelheden, fysieke kenmerken en alle andere verschillen waarvan wordt aangetoond dat zij eveneeens van invloed zijn op de vergelijkbaarheid van de prijzen. 243 In de in lid 4 bedoelde gevallen worden correcties toegepast voor de kosten tussen invoer en wederverkoop, met inbegrip van de rechten, heffingen en winst. Indien in deze gevallen de prijzen niet geheel vergelijkbaar zijn, stellen de autoriteiten de normale waarde vast in een handelsstadium dat gelijkwaardig is aan het handelsstadium waarin de exportprijs werd geconstrueerd of passen zij de krachtens dit lid toegestane correctie toe. De autoriteiten delen de belanghebbenden mede welke gegevens zij voor een billijke vergelijking nodig hebben en leggen deze belanghebbenden geen onredelijke bewijslast op.

  • 2.4.1. Wanneer de in lid 4 bedoelde vergelijking een omreking van valuta noodzakelijk maakt, dient deze omrekening te geschieden tegen de omrekeningskoers die op de verkoopdatum244 van toepassing was, met dien verstande dat wanneer de verkoop van vreemde valuta op de termijnmarkt rechtstreeks aan de betrokken verkoop voor uitvoer gekoppeld is, de bij de termijnverkoop toegepaste omrekeningskoers dient te worden gebruikt. Wisselkoersschommelingen worden buiten beschouwing gelaten en wanneer een onderzoek wordt ingesteld staan de autoriteiten de exporteurs een termijn van ten minste 60 dagen toe om hun exportprijzen aan te passen teneinde rekening te houden met wisselkoerswijzigingen in het onderzoektijdvak die een relatief permanent karakter hebben.

  • 2.4.2. Onder voorbehoud van het bepaalde in lid 4 betreffende de billijke vergelijking, wordt het bestaan van dumpingmarges in de onderzoekfase normaliter vastgesteld door vergelijking van een gewogen gemiddelde normale waarde met een gewogen gemiddelde van de prijzen van alle vergelijkbare uitvoertransacties of door vergelijking van de normale waarde en de exportprijs van afzonderlijke transacties. Een op een gewogen gemiddelde gebaseerde normale waarde mag met de prijzen van individuele exporttransacties vergeleken worden indien de autoriteiten constateren dat de exportprijzen voor de verschillende afnemers, regio's en tijdvakken sterk uiteenlopen en op voorwaarde dat verklaard wordt waarom met dergelijke verschillen niet naar behoren rekening kan worden gehouden door het vergelijken van gewogen gemiddelden of van transacties.

• 2.5 Wanneer produkten niet rechtstreeks uit het land van oorsprong worden ingevoerd doch via een ander land naar het importerende Lid worden uitgevoerd, dan wordt de prijs waartegen de produkten uit het land van uitvoer naar het importerende Lid worden verkocht normaliter met de vergelijkbare prijs in het land van uitvoer vergeleken. Een vergelijking met de prijs in het land van oorsprong is evenwel toegestaan indien, bijvoorbeeld, de produkten slechts via het land van uitvoer worden doorgevoerd, dergelijke produkten niet in het land van uitvoer worden vervaardigd of in het land van uitvoer geen vergelijkbare prijs voor deze produkten voorhanden is.

• 2.6 Voor de toepassing van de Overeenkomst wordt onder soortgelijk produkt verstaan een produkt dat identiek is, dat wil zeggen in ieder opzicht gelijk aan het betrokken produkt, of, bij gebreke van een dergelijk produkt, een ander produkt dat, hoewel het niet in ieder opzicht gelijk is, kenmerken bezit die grote overeenkomst vertonen met die van het betrokken produkt.

• 2.7 Dit artikel doet geen afbreuk aan de tweede aanvullende bepaling bij artikel VI, lid 1, in bijlage I bij de GATT 1994.

Artikel 3. Vaststelling van schade245

• 3.1 Voor de toepassing van artikel VI van de GATT 1994 wordt de vaststelling van schade gebaseerd op positief bewijsmateriaal en houdt deze vaststelling een objectief onderzoek in van a. de omvang van de invoer met dumping en de gevolgen daarvan voor de prijzen van het soortgelijke produkt op de binnenlandse markt, en b. de gevolgen van deze invoer voor de binnenlandse producenten van deze produkten.

• 3.2 Wat de omvang van de invoer met dumping betreft, gaan de met het onderzoek belaste autoriteiten na of deze, in absolute cijfers dan wel in verhouding tot de produktie of het verbruik in het importerende Lid, aanzienlijk is toegenomen. Wat de weerslag van de invoer met dumping op de prijzen betreft, gaan de met het onderzoek belaste autoriteiten na of er sprake is van een aanmerkelijke prijsonderbieding door het met dumping ingevoerde produkt ten opzichte van de prijzen van een soortgelijk produkt van het importerende Lid, of dat deze invoer op andere wijze de prijzen aanzienlijk drukt of prijsverhogingen die anders hadden plaatsgevonden belet, waarbij geen enkele noch meerdere van deze factoren noodzakelijkerwijs doorslaggevend is.

• 3.3 Wanneer de invoer van een produkt uit meer dan een land terzelfder tijd het voorwerp van een anti-dumpingonderzoek is, mogen de met het onderzoek belaste autoriteiten de gevolgen van deze invoer uitsluitend cumulatief beoordelen indien zij vaststellen dat a. de dumpingmarge voor het produkt uit elk land meer dan minimaal is als in artikel 5, lid 8, omschreven en de hoeveelheid die uit elk land wordt ingevoerd niet te verwaarlozen is, en b. een cumulatieve beoordeling van de gevolgen van de invoer gepast is gezien de concurrentieverhoudingen tussen de importprodukten onderling en tussen de importprodukten en het soortgelijke binnenlandse produkt.

• 3.4 Het onderzoek naar de gevolgen van de invoer met dumping voor de binnenlandse bedrijfstak omvat een beoordeling van alle relevante economische factoren en indicatoren die op de situatie van de bedrijfstak van invloed zijn, zoals de werkelijke en potentiële daling van produktie, omzet, marktaandeel, winst, produktiviteit, rendement op investeringen, bezettingsgraad; factoren die van invloed zijn op de binnenlandse prijzen; werkelijke en potentiële negatieve gevolgen voor cash flow, voorraden, werkgelegenheid, lonen, groei, mogelijkheden om kapitaal aan te trekken of investeringen. Deze lijst is niet limitatief, noch zijn een of meer van deze factoren noodzakelijkerwijs doorslaggevend.

• 3.5 Aangetoond moet worden dat de invoer met dumping, door de gevolgen van dumping als in de leden 2 en 4 omschreven, schade in de zin van deze Overeenkomst veroorzaakt. Het oorzakelijke verband tussen de invoer met dumping en de schade die de binnenlandse bedrijfstak lijdt, wordt aangetoond door middel van een onderzoek van alle relevante bewijsstukken waarover de autoriteiten beschikken. De autoriteiten onderzoeken ook alle andere gekende factoren dan de invoer met dumping die de binnenlandse bedrijfstak tegelijkertijd schade toebrengen en de schade die door deze andere factoren wordt veroorzaakt mag niet aan de invoer met dumping worden toegeschreven. Relevant in dit verband zijn, onder andere, de hoeveelheden en de prijzen van importprodukten die niet tegen dumpprijzen worden verkocht, een inkrimping van de vraag of wijzigingen in het consumentengedrag, handelsbeperkende maatregelen van en concurrentie tussen buitenlandse en binnenlandse producenten, technologische ontwikkelingen en de exportprestaties en produktiviteit van de binnenlandse bedrijfstak.

• 3.6 De gevolgen van de invoer met dumping worden beoordeeld in verhouding tot de binnenlandse produktie van het soortgelijke produkt wanneer het aan de hand van de beschikbare gegevens mogelijk is die produktie aan de hand van criteria zoals produktieproces, omzet en winst van de producenten duidelijk te onderscheiden. Indien het niet mogelijk is deze produktie te onderscheiden, worden de gevolgen van de invoer met dumping beoordeeld door de produktie te onderzoeken van de kleinste groep of serie produkten waartoe het soortgelijke produkt behoort en waarover de nodige gegevens kunnen worden verkregen.

• 3.7 De vaststelling dat er sprake is van dreigende aanmerkelijke schade is op feiten gebaseerd en niet op veronderstellingen, ramingen of vage mogelijkheden. De verandering van omstandigheden waardoor een situatie zou ontstaan waarin dumping schade veroorzaakt moet voor een nabije toekomst duidelijk zijn te voorzien.246 Om vast te stellen of er sprake is van dreigende aanmerkelijke schade, nemen de met het onderzoek belaste autoriteiten onder meer de volgende factoren in aanmerking:

  • i. de snelle groei van het aandeel van de met dumping ingevoerde produkten op de binnenlandse markt, wat erop wijst dat de invoer waarschijnlijk nog aanzienlijk zal toenemen;

  • ii. voldoende vrij beschikbare produktiecapaciteit van de exporteur, of een aanmerkelijke toename van daarvan in de nabije toekomst, waardoor het waarschijnlijk is dat de uitvoer met dumping naar de markt van het importerende Lid nog aanzienlijk zal toenemen, waarbij rekening moet worden gehouden met de beschikbaarheid van andere exportmarkten die de bijkomende voor uitvoer beschikbare hoeveelheden kunnen absorberen;

  • iii. of de produkten worden ingevoerd tegen prijzen die een aanmerkelijk druk op de binnenlandse prijzen zullen uitoefenen of die een stijging van deze prijzen duidelijk zullen verhinderen, en waardoor de vraag naar importprodukten nog zal toenemen;

  • iv. de bestaande voorraden van het onderzochte produkt.

  Geen enkele van deze factoren is noodzakelijkerwijs doorslaggevend, maar de in overweging genomen factoren tezamen moeten tot de conclusie leiden dat de invoer met dumping op korte termijn nog zal toenemen en dat deze invoer, tenzij beschermingsmaatregelen worden genomen, aanmerkelijke schade zal veroorzaken.

• 3.8 In de gevallen waarin invoer met dumping schade dreigt te veroorzaken, wordt het besluit om anti-dumpingmaatregelen te nemen zorgvuldig overwogen.

Artikel 4. Omschrijving van het begrip „binnenlandse bedrijfstak”

• 4.1 In de zin van deze overeenkomst wordt onder „binnenlandse bedrijfstak” verstaan de gezamenlijke binnenlandse producenten van de soortgelijke produkten of dat deel van de binnenlandse producenten wier gezamenlijke produktie van de betrokken produkten een groot deel van de totale binnenlandse produktie van die produkten uitmaakt. Indien het echter gaat om

  • i. producenten die met exporteurs of importeurs gelieerd247 zijn of die zelf importeur zijn van het produkt dat met dumping zou worden ingevoerd, kan onder „binnenlandse bedrijfstak” de overige producenten worden verstaan;

  • ii. in buitengewone omstandigheden kan het grondgebied van een Lid, wat de betrokken produktie betreft, in twee of meer concurrerende markten worden verdeeld en kunnen de producenten binnen elke markt als een afzonderlijke bedrijfstak worden beschouwd indien a. de producenten binnen die markt hun gehele of vrijwel gehele produktie van het betrokken produkt op die markt verkopen, en b. aan de vraag op die markt niet in belangrijke mate wordt voldaan door elders op dat grondgebied gevestigde producenten van het betrokken produkt. In deze omstandigheden kan tot het bestaan van schade worden geconcludeerd zelfs indien een groot deel van de totale binnenlandse bedrijfstak geen schade lijdt, mits de invoer met dumping op deze afzonderlijke markt geconcentreerd is en de producenten van alle of vrijwel alle produkten op die markt door de invoer met dumping schade lijden.

• 4.2 Wanneer onder „binnenlandse bedrijfstak” de producenten in een bepaald gebied, namelijk de in lid 1, onder ii., omschreven markt, wordt verstaan, worden de anti-dumpingrechten slechts geheven248 op produkten die voor eindverbruik in dat gebied zijn bestemd. Staat de grondwet van het importerende Lid niet toe dat anti-dumpingrechten op die basis worden geheven, dan mag het importerende Lid de anti-dumpingrechten uitsluitend zonder beperking heffen indien a. de exporteurs de gelegenheid hebben gehad de export tegen dumpprijzen naar het betrokken gebied stop te zetten of op grond van artikel 8 verbintenissen aan te bieden, maar zij deze bevredigende verbintenissen niet terstond hebben aangeboden, en b. deze rechten niet uitsluitend kunnen worden geheven op produkten van specifieke producenten die aan het betrokken gebied leveren.

• 4.3 Wanneer twee of meer landen overeenkomstig het bepaalde in artikel XXIV, lid 8, onder a. van de GATT 1994 zulk een niveau van integratie hebben bereikt dat zij de kenmerken van een enkele, eengemaakte markt hebben, wordt de bedrijfstak in het gehele geïntegreerde gebied beschouwd als de in lid 1 bedoelde binnenlandse bedrijfstak.

• 4.4 Het bepaalde in artikel 3, lid 6, is van toepassing op dit artikel.

Artikel 5. Opening en uitvoering van het onderzoek

• 5.1 Behoudens het bepaalde in lid 6, wordt een onderzoek naar het bestaan, de mate en de gevolgen van dumping geopend naar aanleiding van een schriftelijk verzoek van of namens de binnenlandse bedrijfstak.

• 5.2 Een op grond van lid 1 ingediend verzoek dient voldoende bewijsmateriaal te bevatten over het bestaan van a. dumping en b. schade in de zin van artikel VI van de GATT 1994 zoals bij deze Overeenkomst geïnterpreteerd, en c. een oorzakelijk verband tussen de invoer met dumping en de schade die zou zijn geleden. Loutere beweringen die niet door bewijsmateriaal worden gesteund kunnen niet als toereikend in de zin van dit lid worden beschouwd. Het verzoek bevat de gegevens die de aanvrager redelijkerwijs bekend zijn, zoals:

  • i. de identiteit van de aanvrager en de hoeveelheid en de waarde van het soortgelijke produkt dat hij in het binnenland vervaardigt. Wordt een schriftelijk verzoek namens de binnenlandse bedrijfstak ingediend, dan wordt de bedrijfstak namens welke het verzoek wordt ingediend daarin omschreven door middel van een lijst van alle gekende binnenlandse producenten van het soortgelijke produkt (of verenigingen van producenten van het soortgelijke produkt) en bevat het, voor zover mogelijk, een opgave van de hoeveelheid en de waarde van de binnenlandse produktie van het door deze producenten vervaardigde soortgelijke produkt;

  • ii. een volledige beschrijving van het produkt dat met dumping zou worden ingevoerd, de naam van het betrokken land of de betrokken landen van oorsprong of uitvoer, de identiteit van elke gekende exporteur of buitenlandse producent en een lijst van gekende importeurs van het betrokken produkt;

  • iii. gegevens over de prijzen waartegen het betrokken produkt voor verbruik op de binnenlandse markt van het land of de landen van oorsprong of uitvoer wordt verkocht (of, indien van toepassing, gegevens over de prijzen waartegen het produkt vanuit het land of de landen van oorsprong of uitvoer aan een derde land of derde landen wordt verkocht, of over de geconstrueerde waarde van het produkt) alsmede gegevens over exportprijzen of, indien van toepassing, over de prijzen waartegen het produkt voor het eerst aan een onafhankelijke afnemer op het grondgebied van het importerende Lid wordt verkocht;

  • iv. gegevens over de ontwikkelingen met betrekking tot de omvang van de invoer met dumping, de weerslag van deze invoer op de prijzen van het soortgelijke produkt op de binnenlandse markt en de weerslag van de invoer op de binnenlandse bedrijfstak, zoals uit factoren en indicatoren betreffende de situatie van de binnenlandse bedrijfstak blijkt, waaronder die welke in artikel 3, leden 2 en 4 zijn genoemd.

• 5.3 De autoriteiten controleren de juistheid en toereikendheid van de in het verzoek vervatte bewijsmateriaal ten einde vast te stellen of dit voldoende is om tot de opening van een onderzoek over te gaan.

• 5.4 Een onderzoek op grond van lid 1 wordt eerst geopend nadat de autoriteiten, aan de hand van een onderzoek naar de mate waarin het verzoek door de binnenlandse producenten van het soortgelijke produkt wordt gesteund249 , hebben vastgesteld dat het verzoek door of namens de binnenlandse bedrijfstak is ingediend250 . Het verzoek wordt geacht „door of namens de binnenlandse bedrijfstak” te zijn gedaan indien het gesteund wordt door de binnenlandse producenten wier gezamenlijke produktie meer dan 50% bedraagt van de totale produktie van het soortgelijke produkt dat vervaardigd wordt door dat deel van de binnenlandse bedrijfstak dat zich voor of tegen het verzoek heeft uitgesproken. Er wordt geen onderzoek geopend wanneer de binnenlandse producenten die het verzoek uitdrukkelijk steunen minder dan 25% van de totale produktie van het soortgelijke produkt door de binnenlandse bedrijfstak vertegenwoordigen.

• 5.5 De autoriteiten geven geen bekendheid aan het verzoek tot opening van een onderzoek voordat het besluit tot opening van het onderzoek is genomen. Na ontvangst van een verzoek dat van het nodige bewijsmateriaal vergezeld gaat en voor de opening van het onderzoek brengen de autoriteiten de overheid van het betrokken exporterende Lid evenwel op de hoogte.

• 5.6 Indien, in bijzondere omstandigheden, de betrokken autoriteiten besluiten een onderzoek te openen zonder daartoe een schriftelijk verzoek van of namens de binnenlandse bedrijfstak te hebben ontvangen, zetten zij de procedure slechts voort indien zij voldoende bewijs hebben over het bestaan van dumping, schade en oorzakelijk verband, als in lid 2 omschreven, om tot de opening van een onderzoek over te gaan.

• 5.7 Het bewijsmateriaal ten aanzien van dumping en schade wordt terzelfder tijd in overweging worden genomen a. bij het besluit al dan niet tot een onderzoek over te gaan en b. daarna, tijdens het onderzoek, dat niet later begint dan op de vroegste tijdstip waarop volgens de bepalingen van deze Overeenkomst voorlopige maatregelen mogen worden genomen.

• 5.8 Een verzoek op grond van lid 1 wordt afgewezen en een onderzoek beëindigd zodra de betrokken autoriteiten ervan overtuigd zijn dat het bewijsmateriaal inzake dumping of schade niet voldoende is om de procedure voort te zetten. De procedure wordt onmiddellijk beëindigd indien de dumpingmarge minimaal is of de werkelijke of potentiële omvang van de invoer met dumping, of de schade, te verwaarlozen is. De dumpingmarge wordt geacht minimaal te zijn indien ze minder dan 2% van de exportprijs bedraagt. De omvang van de invoer met dumping wordt normalerwijze als te verwaarlozen beschouwd indien de invoer met dumping uit een bepaald land minder dan 3% van de totale invoer van het soortgelijke produkt in het importerende Lid bedraagt, tenzij landen die afzonderlijk minder dan 3% van het soortgelijke produkt in het importerende Lid invoeren tezamen goed zijn voor meer dan 7% van de invoer van het soortgelijke produkt in het importerende Lid.

• 5.9 Een anti-dumpingprocedure mag de inklaringsprocedures van de douane niet hinderen.

• 5.10 Een onderzoek wordt, behoudens uitzonderlijke omstandigheden, binnen een jaar na de opening afgesloten en mag in geen geval langer dan 18 maanden duren.

Artikel 6. Bewijs

• 6.1 Belanghebbenden bij een anti-dumpingonderzoek worden in kennis gesteld van de informatie die de autoriteiten wensen te ontvangen en krijgen ruimschoots gelegenheid om het bewijsmateriaal dat zij voor het betrokken onderzoek van belang achten schriftelijk voor te leggen.

  • 6.1.1. Exporteurs of buitenlandse producenten die een bij een anti-dumpingonderzoek gebruikte vragenlijst ontvangen beschikken over ten minste 30 dagen om deze te beantwoorden251 . Met redenen omklede verzoeken tot verlenging van de termijn van 30 dagen dienen in welwillende overweging te worden genomen, en dienen, voor zover dit praktisch mogelijk is, te worden ingewilligd.

  • 6.1.2. Onder voorbehoud van de verplichting tot bescherming van vertrouwelijke informatie, wordt bewijsmateriaal dat een belanghebbende schriftelijk heeft voorgelegd zo spoedig mogelijk ter beschikking gesteld van de andere belanghebbenden die aan het onderzoek deelnemen.

  • 6.1.3. Zodra een onderzoek is geopend, doen de autoriteiten de volledige tekst van het ingevolge artikel 5, lid 1, ontvangen schriftelijke verzoek aan de gekende exporteurs252 en de autoriteiten van het exporterende Lid toekomen en stellen deze, op verzoek, ter beschikking van de andere belanghebbenden, met inachtneming van de verplichting tot bescherming van vertrou- welijke informatie, zoals in lid 5 bedoeld.

• 6.2 Terwijl het anti-dumpingonderzoek aan de gang is, dienen alle belanghebbenden steeds in de gelegenheid te zijn hun belangen te behartigen. Te dien einde stellen de autoriteiten alle belanghebbenden op hun verzoek in de gelegenheid andere partijen met tegenstrijdige belangen te ontmoeten zodat afwijkende standpunten en tegenargumenten naar voren kunnen worden gebracht. Bij het regelen van deze contacten dient rekening te worden gehouden met het vereiste inzake de bescherming van vertrouwelijke informatie en met de wensen van de belanghebbenden. Geen enkele belanghebbende is verplicht aan een vergadering deel te nemen, noch mag de afwezigheid van een partij op een bijeenkomst haar belangen schaden. Bovendien hebben de belanghebbenden het recht, op een met redenen omkleed verzoek, mondeling nadere informatie te verschaffen.

• 6.3 Met de overeenkomstig het bepaalde in lid 2 medegedeelde mondelinge informatie wordt door de autoriteiten slechts rekening gehouden voor zover deze achteraf ook schriftelijk wordt verstrekt en overeenkomstig het bepaalde in lid 1.2 ter beschikking wordt gesteld van andere belanghebbenden.

• 6.4 De autoriteiten geven, voor zover praktisch mogelijk, alle belanghebbenden voldoende gelegenheid tot inzage in alle voor de presentatie van hun zaak relevante stukken die niet vertrouwelijk zijn in de zin van lid 5 en die de autoriteiten bij een anti-dumpingonderzoek gebruiken; zij geven deze belanghebbenden gelegenheid hun argumenten op grond van deze gegevens voor te bereiden.

• 6.5 Inlichtingen die vanwege hun aard vertrouwelijk zijn (bijvoorbeeld omdat bekendmaking ervan een concurrent aanmerkelijk zou bevoordelen of omdat bekendmaking ervan ernstige nadelige gevolgen zou hebben voor de persoon die de informatie heeft verstrekt of voor de persoon van wie deze informatie is verkregen) of die door partijen bij een onderzoek als vertrouwelijk wordt verstrekt, worden, indien daarvoor geldige redenen worden opgegeven, als dusdanig door de autoriteiten behandeld. Dergelijke informatie kan niet worden bekendgemaakt zonder de uitdrukkelijke toestemming van degene die ze heeft verstrekt253 .

  • 6.5.1. De autoriteiten vragen dat belanghebbenden die vertrouwelijke inlichtingen verstrekken daarvan een niet-vertrouwelijke samenvatting toezenden. Deze samenvattingen moeten gedetailleerd genoeg zijn om een redelijk inzicht te verschaffen in de essentie van de als vertrouwelijk medegedeelde gegevens. In buitengewone omstandigheden kunnen belanghebbenden aangeven dat deze inlichtingen niet kunnen worden samengevat. In dergelijke buitengewone omstandigheden moet worden aangegeven waarom het niet mogelijk is een samenvatting te verstrekken.

  • 6.5.2. Indien de autoriteiten van oordeel zijn dat een verzoek om vertrouwelijke behandeling niet gegrond is en degene die de inlichtingen heeft verstrekt niet bereid is deze bekend te maken of de bekendmaking ervan in algemene bewoordingen of in samengevatte vorm toe te staan, kunnen de autoriteiten deze informatie buiten beschouwing laten tenzij te hunnen genoegen uit goede bronnen blijkt dat de inlichtingen juist zijn254.

• 6.6 Behoudens in de in lid 8 bedoelde omstandigheden, controleren de autoriteiten in de loop van het onderzoek of de inlichtingen die belanghebbenden hebben verstrekt en waarop zij hun bevindingen baseren, juist zijn.

• 6.7 Ten einde de ontvangen inlichtingen te verifiëren of nadere inlichtingen in te winnen kunnen de autoriteiten zo nodig een onderzoek instellen op het grondgebied van andere Leden, mits de betrokken ondernemingen hiermee instemmen en de vertegenwoordigers van de overheid van het betrokken Lid van dit onderzoek in kennis worden gesteld en zij hiertegen geen bezwaar maken. De in bijlage I omschreven procedures zijn van toepassing op onderzoeken die op het grondgebied van andere Leden worden verricht. Onder voorbehoud van de verplichting tot bescherming van vertrouwelijke gegevens, stellen de autoriteiten de resultaten van het onderzoek ter beschikking van de ondernemingen waarop ze betrekking hebben, of zorgen zij ervoor dat de resultaten aan de betrokken ondernemingen ter beschikking worden gesteld, overeenkomstig lid 9. Zij kunnen deze resultaten ook de indieners van het verzoek ter beschikking stellen.

• 6.8 Indien een belanghebbende binnen een redelijke termijn geen toegang verleent tot de noodzakelijke informatie of deze anderszins niet verstrekt, of het onderzoek aanmerkelijk belemmert, kunnen aan de hand van de beschikbare gegevens voorlopige en definitieve conclusies worden getrokken, zowel in positieve als in negatieve zin. Bij de toepassing van dit lid worden de bepalingen van Bijlage II in acht genomen.

• 6.9 Voordat definitieve conclusies worden getrokken stellen de autoriteiten alle belanghebbenden in kennis van de voornaamste onderzochte feiten die aan het besluit tot het al dan niet nemen van definitieve maatregelen ten grondslag liggen. Deze kennisgeving moet tijdig genoeg gebeuren om alle partijen de gelegenheid te geven hun belangen te verdedigen.

• 6.10 De autoriteiten stellen in het algemeen een individuele dumpingmarge vast voor elke gekende betrokken exporteur of producent van het onderzochte produkt. Indien het aantal exporteurs, producenten en importeurs van de betrokken produktsoorten zo groot is dat een dergelijke vaststelling niet praktisch mogelijk is, mogen de autoriteiten hun onderzoek beperken tot, hetzij een redelijk aantal belanghebbenden of produkten door, op grond van de informatie waarover zij op het tijdstip van de selectie beschikken, gebruik te maken van statistisch significante steekproeven, hetzij het hoogste percentage van het exportvolume uit het betrokken land dat redelijkerwijs onderzocht kan worden.

  • 6.10.1. De selectie van exporteurs, producenten, importeurs of soorten produkten ingevolge dit lid geschiedt bij voorkeur in overleg en met de toestemming van de betrokken exporteurs, producenten of importeurs.

  • 6.10.2. Indien de autoriteiten, overeenkomstig het bepaalde in dit lid, hun onderzoek hebben beperkt, stellen zij niettemin een individuele dumpingmarge vast voor elke exporteur of producent die niet in de oorspronkelijke selectie was opgenomen, maar die tijdig genoeg de nodige informatie verstrekt om tijdens het onderzoek in aanmerking te kunnen worden genomen, tenzij het aantal exporteurs of producenten zo groot is dat individuele onderzoeken voor de autoriteiten te belastend zouden zijn en een tijdige afsluiting van het onderzoek in de weg staan. Het verstrekken van vrijwillige antwoorden zal niet worden ontmoedigd.

• 6.11 Voor de toepassing van deze Overeenkomst wordt onder „belanghebbende” verstaan:

  • i. een exporteur of buitenlandse producent of de importeur van een produkt dat wordt onderzocht, of een vereniging van producenten of handelaars waarvan de meeste leden producenten, exporteurs of importeurs van dit produkt zijn; en

  • ii. de overheid van het exporterende Lid, en

  • iii. een producent van het soortgelijke produkt in het importerende Lid of een vereniging van producenten of handelaars waarvan de meeste leden het soortgelijke produkt in het gebied van het importerende Lid produceren.

  Deze lijst belet niet dat Leden andere binnen- of buitenlandse partijen dan bovengenoemde als belanghebbenden kunnen beschouwen.

• 6.12 Industriële gebruikers van het onderzochte produkt en representatieve consumentenorganisaties (wanneer het om produkten gaat die courant in de detailhandel worden verkocht) worden door de autoriteiten in de gelegenheid gesteld inlichtingen te verstrekken in verband met het onderzoek inzake dumping, schade en oorzakelijk verband.

• 6.13 De autoriteiten houden rekening met de moeilijkheden die belanghebbenden, en met name kleine bedrijven, kunnen hebben om de gevraagde informatie te verstrekken en verlenen deze, voor zover praktisch mogelijk, hulp.

• 6.14 De hierboven omschreven procedures hebben niet ten doel de autoriteiten van een Lid te beletten zo snel mogelijk te handelen bij het openen van een onderzoek, het trekken van voorlopige of definitieve conclusies in zowel positieve als negatieve zin, of het nemen van voorlopige of definitieve maatregelen, overeenkomstig de bepalingen van deze Overeenkomst.

Artikel 7. Voorlopige maatregelen

• 7.1 Voorlopige maatregelen mogen uitsluitend worden toegepast indien:

  • i. een onderzoek is geopend overeenkomstig het bepaalde in artikel 5, hierover een bericht is gepubliceerd en belanghebbenden voldoende gelegenheid hebben gehad inlichtingen te verstrekken en opmerkingen te maken;

  • ii. een voorlopige vaststelling is gedaan inzake dumping en schade voor een binnenlandse bedrijfstak; en

  • iii. de betrokken autoriteiten deze maatregelen noodzakelijk achten om te verhinderen dat tijdens de duur van het onderzoek schade wordt geleden.

• 7.2 Voorlopige maatregelen kunnen de vorm aannemen van voorlopige rechten of, bij voorkeur, zekerheidstelling – door het storten van een geldsom of borgstelling – voor een bedrag dat gelijk is aan het bedrag van het voorlopige geraamde anti-dumpingrecht dat niet hoger is dan de voorlopig geraamde dumpingmarge. De opschorting van de procedure tot vaststelling van de douanewaarde is een passende voorlopige maatregel, mits het normale recht en het geraamde bedrag van het anti-dumpingrecht worden opgegeven en zolang voor het niet-vaststellen van de douanewaarde dezelfde voorwaarden gelden als voor andere voorlopige maatregelen.

• 7.3 Voorlopige maatregelen worden niet eerder genomen dan 60 dagen na de opening van het onderzoek.

• 7.4 De toepassing van voorlopige maatregelen wordt beperkt tot een zo kort mogelijke periode die ten hoogste vier maanden bedraagt of, op verzoek van exporteurs die een belangrijk percentage van de betrokken handel vertegenwoordigen, ten hoogste zes maanden. Indien de autoriteiten, tijdens een onderzoek, nagaan of een lager recht dan de dumpingmarge voldoende zou zijn om een einde te maken aan de schade, kunnen deze termijnen respectievelijk op zes en negen maanden worden gebracht.

• 7.5 Wanneer voorlopige maatregelen worden genomen zijn de desbetreffende bepalingen van artikel 9 van toepassing.

Artikel 8. Prijsverbintenissen

• 8.1 Een procedure kan255 worden geschorst of beëindigd zonder dat voorlopige maatregelen worden genomen of anti-dumpingrechten ingesteld, indien een exporteur op vrijwillige basis bevredigende verbintenissen aanbiedt om zijn prijzen te herzien of de export tegen dumpprijzen naar het betrokken gebied stop te zetten, die de autoriteiten ervan overtuigen dat hierdoor een einde zal komen aan de schadelijke gevolgen van dumping. De prijzen worden ingevolge deze verbintenissen niet meer verhoogd dan nodig is om de dumpingmarge te elimineren. Het is wenselijk dat de prijsverhogingen lager zijn dan de dumpingmarge indien deze voldoende zijn om een einde te maken aan de schade die de binnenlandse bedrijfstak lijdt.

• 8.2 Prijsverbintenissen van exporteurs worden niet gevraagd noch aanvaard tenzij de autoriteiten van het importerende Lid een voorlopige positieve vaststelling hebben gedaan over het bestaan van dumping en de daardoor veroorzaakte schade.

• 8.3 Aangeboden verbintenissen behoeven niet te worden aanvaard indien de autoriteiten van oordeel zijn dat dit niet praktisch mogelijk is, bijvoorbeeld indien het aantal bestaande en potentiële exporteurs te groot is of om andere redenen, met inbegrip van redenen van algemeen beleid. Indien dit het geval is en voor zover dit praktisch mogelijk is, delen de autoriteiten de exporteur mede waarom zij het niet passend hebben geacht de verbintenis te aanvaarden en geven zij de exporteur, voor zover mogelijk, gelegenheid hierover opmerkingen te maken.

• 8.4 Indien een verbintenis wordt aanvaard, wordt het onderzoek naar dumping en schade toch voltooid indien de exporteur dit wenst of de autoriteiten daartoe besluiten. Wordt in dit geval vastgesteld dat er geen sprake is van dumping of schade, dan vervalt de verbintenis automatisch, tenzij een dergelijke vaststelling grotendeels het gevolg is van het bestaan van een prijsverbintenis. In die gevallen kunnen de autoriteiten eisen dat de verbintenis gedurende een redelijke termijn wordt gehandhaafd overeenkomstig de bepalingen van deze Overeenkomst. Wordt vastgesteld dat er wel sprake is van dumping en schade, dan blijft de verbintenis van kracht overeenkomstig de voorwaarden en bepalingen van deze Overeenkomst.

• 8.5 Voorstellen voor prijsverbintenissen mogen uitgaan van de autoriteiten van het importerende Lid, maar geen exporteur kan gedwongen worden hierop in te gaan. Het feit dat exporteurs geen verbintenissen aanbieden of niet op een voorstel daartoe ingaan, doet op generlei wijze afbreuk aan het onderzoek van de zaak. De autoriteiten zijn echter vrij te bepalen dat het bij voortzetting van de invoer met dumping waarschijnlijker is dat schade zal ontstaan.

• 8.6 De autoriteiten van een importerend Lid kunnen eisen dat een exporteur van wie een verbintenis is aanvaard regelmatig inlichtingen verstrekt in verband met de naleving van deze verbintenis en dat de betreffende gegevens gecontroleerd mogen worden. Bij niet-naleving van een verbintenis kunnen de autoriteiten van het importerende Lid, overeenkomstig de bepalingen van deze Overeenkomst, op korte termijn maatregelen nemen die kunnen bestaan uit de onmiddellijke toepassing van voorlopige maatregelen op grond van de meest betrouwbare gegevens die beschikbaar zijn. In dergelijke gevallen kunnen, overeenkomstig de bepalingen van deze Overeenkomst, definitieve rechten worden geheven op produkten die ten verbruike zijn aangegeven tot ten hoogste 90 dagen vóór de toepassing van deze voorlopige maatregelen, met dien verstande dat een dergelijke heffing achteraf niet mag worden toegepast op produkten die zijn aangegeven voordat de verbintenis werd verbroken.

Artikel 9. Instelling en heffing van anti-dumpingrechten

• 9.1 Het is aan de autoriteiten van het importerende Lid te besluiten of een anti-dumpingrecht al dan niet wordt ingesteld wanneer aan alle eisen voor het instellen van dit recht is voldaan, en of dit recht gelijk is aan de dumpingmarge of lager. Het is wenselijk dat de instelling van het recht facultatief is op het grondgebied van alle Leden en dat het recht lager is dan de dumpingmarge indien dit lagere recht voldoende is om een einde te maken aan de schade die de binnenlandse bedrijfstak lijdt.

• 9.2 Wordt op een produkt een anti-dumpingrecht ingesteld, dan wordt dit recht, op niet-discriminerende basis, per geval geheven op de invoer van dat produkt uit alle dumping- en schadeveroorzakende bronnen, met uitzondering van die bronnen waarvan prijsverbintenissen in de zin van deze Overeenkomst zijn aanvaard. De autoriteiten maken de naam van de leverancier of leveranciers van het betrokken produkt bekend. Indien het om verschillende leveranciers uit hetzelfde land gaat en het niet praktisch mogelijk is al deze leveranciers te noemen, mogen de autoriteiten het betrokken leveranciersland noemen. Indien het om verschillende leveranciers uit meer dan een land gaat, mogen de autoriteiten alle betrokken leveranciers noemen of, indien dit niet praktisch mogelijk is, alle betrokken leverancierslanden.

• 9.3 Het anti-dumpingrecht mag de overeenkomstig artikel 2 vastgestelde dumpingmarge niet overschrijden.

  • 9.3.1. Wanneer de hoogte van het anti-dumpingrecht op retrospectieve basis wordt vastgesteld, wordt de definitieve verschuldigdheid voor de betaling van anti-dumpingrechten zo spoedig mogelijk, normaliter binnen 12 maanden, vastgesteld doch in geen geval meer dan 18 maanden na de datum waarop het verzoek tot definitieve vaststelling van het anti-dumpingrecht werd ingediend256 . Terugbetalingen vinden onmiddellijk plaats, normaliter binnen 90 dagen na de vaststelling van definitieve verschuldigheid op grond van deze alinea. Wanneer de terugbetaling niet binnen 90 dagen geschiedt, geven de autoriteiten desgevraagd de redenen daarvoor op.

  • 9.3.2. Wanneer de hoogte van het anti-dumpingrecht op prospectieve basis wordt vastgesteld, worden de nodige voorzieningen getroffen voor een snelle terugbetaling – indien erom wordt verzocht – van alle betaalde bedragen aan rechten die de dumpingmarge overschrijden. De terugbetaling van alle bedragen aan rechten die de werkelijke dumpingmarge overschrijden geschiedt normaliter binnen 12 maanden, en in ieder geval binnen 18 maanden, na de datum waarop door een importeur van het aan het anti-dumpingrecht onderworpen produkt een naar behoren met bewijsmateriaal gestaafd verzoek om terugbetaling werd ingediend. De toegestane terugbetaling geschiedt normaliter binnen 90 dagen na de datum waarop het vorengenoemde besluit werd genomen.

  • 9.3.3. Bij het beantwoorden van de vraag of en voor welk bedrag terugbetaling dient plaats te vinden wanneer de exportprijs overeenkomstig artikel 2, lid 3 is geconstrueerd, dienen de autoriteiten rekening te houden met alle wijzigingen van de normale waarde, alle wijzigingen van de kosten tussen invoer en wederverkoop en alle wijzigingen van de wederverkoopprijs die hun weerslag vinden in de latere verkoopprijzen en dienen zij de exportprijs te berekenen zonder daarop het bedrag van de betaalde anti-dumpingrechten in mindering te brengen indien van het bovenstaande afdoende bewijs wordt geleverd.

• 9.4 Wanneer de autoriteiten hun onderzoek hebben beperkt overeenkomstig de tweede zin van artikel 6, lid 10, mag het anti-dumpingrecht op de invoer van produkten van niet bij het onderzoek betrokken exporteurs of producenten niet hoger zijn dan:

  • i. de gewogen gemiddelde dumpingmarge die voor de geselecteerde exporteurs of producenten is vastgesteld of,

  • ii. wanneer het te betalen bedrag aan anti-dumpingrechten op basis van een prospectieve normale waarde wordt berekend, het verschil tussen de gewogen gemiddelde normale waarde voor de geselecteerde exporteurs of producenten en de exportprijzen van de niet-individueel onderzochte exporteurs of producenten, met dien verstande dat de autoriteiten voor de toepassing van dit lid geen rekening houden met nihilmarges en minimale marges die onder de in artikel 6, lid 8, bedoelde omstandigheden zijn vastgesteld. De autoriteiten passen individuele rechten of normale waarden toe op de invoer van elke niet bij het onderzoek betrokken exporteur of producent die tijdens het onderzoek de nodige informatie als bedoeld in artikel 6, lid 10.2 heeft verstrekt.

• 9.5 Wanneer een importerend Lid op een produkt anti-dumpingrechten heeft ingesteld, stellen de autoriteiten onverwijld een nieuw onderzoek in om de individuele dumpingmarges te bepalen voor alle exporteurs of producenten in het betrokken land van uitvoer die dit produkt gedurende het onderzoektijdvak niet naar het importerende Lid hebben uitgevoerd, mits deze exporteurs of producenten kunnen aantonen dat zij niet geliëerd zijn met één van de exporteurs of producenten in het land van uitvoer waarvoor de op het produkt ingestelde anti-dumpingrechten gelden. Dit nieuwe onderzoek wordt sneller geopend en uitgevoerd dan de normale procedures voor de vaststelling van rechten en de herzieningsprocedures in het importerende Lid. Terwijl het nieuwe onderzoek aan de gang is worden bij invoer van de produkten van deze exporteurs of producenten geen anti-dumpingrechten geheven. De autoriteiten kunnen evenwel de vaststelling van de douanewaarde opschorten en/of verlangen dat zekerheid wordt gesteld om ervoor te zorgen dat, indien een dergelijk nieuw onderzoek tot de conclusie leidt dat de produkten van deze producenten of exporteurs met dumping worden ingevoerd, anti-dumpingrechten kunnen worden geheven met terugwerking tot de datum waarop het nieuwe onderzoek werd geopend.

Artikel 10. Terugwerkende kracht

• 10.1 Voorlopige maatregelen en anti-dumpingrechten worden slechts toegepast op produkten die ten verbruik worden aangegeven, nadat het besluit op grond van artikel 7, lid 1, respectievelijk artikel 9, lid 1, in werking is getreden, behalve in de in dit artikel vermelde uitzonderingsgevallen.

• 10.2 Wanneer een definitieve vaststelling van schade (maar niet van dreigende schade of de aanzienlijke vertraging van de vestiging van een bedrijfstak) is gedaan of, in het geval van een definitieve vaststelling van dreigende schade, wanneer de invoer met dumping, in afwezigheid van voorlopige maatregelen, tot een vaststelling van schade zouden hebben geleid, kunnen met terugwerkende kracht anti-dumpingrechten worden geheven voor de periode waarin eventueel voorlopige maatregelen van toepassing waren.

• 10.3 Is het definitieve anti-dumpingrecht hoger dan het betaalde of te betalen voorlopige recht, of het met het oog op zekerheidstelling geraamde bedrag, dan wordt het verschil niet geïnd. Is het definitieve recht lager dan het betaalde of te betalen voorlopige recht of het met het oog op zekerheidstelling geraamde bedrag, dan wordt het verschil terugbetaald of het recht opnieuw berekend, al naar gelang van het geval.

• 10.4 Behoudens het bepaalde in lid 2 kan, wanneer dreigende schade of de aanmerkelijke vertraging van de vestiging van een bedrijfstak is vastgesteld (maar wanneer zich nog geen schade heeft voorgedaan), een definitief anti-dumpingrecht slechts worden ingesteld vanaf de datum waarop de dreigende schade of aanzienlijke vertraging zijn vastgesteld. Geldsommen die tijdens de toepassing van de voorlopige maatregelen zijn gestort worden zo spoedig mogelijk terugbetaald en gestelde zekerheden zo spoedig mogelijk vrijgegeven.

• 10.5 Wanneer een definitieve vaststelling negatief is, worden geldsommen die tijdens de toepassing van de voorlopige maatregelen zijn gestort zo spoedig mogelijk terugbetaald en gestelde zekerheden zo spoedig mogelijk vrijgegeven.

• 10.6 Een definitief anti-dumpingrecht kan worden geheven van produkten die ten hoogste 90 dagen voor de datum van inwerkingtreding van de voorlopige maatregelen ten verbruike zijn aangegeven, indien de autoriteiten ten aanzien van het met dumping ingevoerde produkt vaststellen dat:

  • i. in het verleden dumping met daaruit voortvloeiende schade werd geconstateerd of de importeur ervan op de hoogte was of had moeten zijn, dat de exporteur zich aan invoer met dumping schuldig maakt en dat deze dumping schade zou veroorzaken, en

  • ii. dat de schade wordt veroorzaakt door de massale invoer met dumping van een bepaald produkt binnen een relatief korte termijn waardoor, gezien het tijdstip waarop en de omvang waarin de invoer met dumping plaatsvindt en andere omstandigheden (zoals een snelle voorraadvorming van het ingevoerde produkt), het corrigerende effect van het toe te passen definitieve anti-dumpingrecht dreigt te worden ondermijnd, op voorwaarde dat de betrokken importeurs in de gelegenheid zijn gesteld opmerkingen te maken.

• 10.7 Nadat zij een onderzoek hebben geopend, kunnen de autoriteiten de in lid 6 bedoelde maatregelen nemen die noodzakelijk zijn om de anti-dumpingrechten met terugwerkende kracht in te vorderen, zoals het niet-vaststellen van de douanewaarde of van het recht, zodra zij over voldoende bewijzen beschikken dat de in dit lid gestelde voorwaarden vervuld zijn.

• 10.8 Er worden geen rechten met terugwerkende kracht geheven overeenkomstig artikel 6 op produkten die voor de opening van het onderzoek ten verbruike werden aangegeven.

Artikel 11. Duur en herziening van de anti-dumpingrechten en prijsverbintenissen

• 11.1 Een anti-dumpingrecht blijft van toepassing zolang en voor zover dit nodig is om de schadeveroorzakende dumping tegen te gaan.

• 11.2 De autoriteiten onderzoeken, zo nodig, of een ingesteld recht moet worden gehandhaafd, hetzij op eigen initiatief, hetzij, mits sinds het instellen van het definitieve anti-dumpingrecht een redelijke periode is verstreken, op verzoek van een belanghebbende die positieve gegevens verstrekt waaruit de noodzaak van een herziening blijkt257 . Belanghebbenden hebben het recht de autoriteiten te verzoeken na te gaan of het nodig is de rechten ter compensatie van dumping te handhaven en of het waarschijnlijk is dat weer schade zou ontstaan indien het recht werd opgeheven of gewijzigd. Indien de autoriteiten bij het in dit lid bedoelde onderzoek vaststellen dat er geen redenen zijn het anti-dumpingrecht te handhaven, wordt het onmiddellijk opgeheven.

• 11.3 In afwijking van de leden 1 en 2 vervalt een definitief anti-dumpingrecht uiterlijk vijf jaar nadat het werd ingesteld (of uiterlijk vijf jaar na de datum van het meest recente onderzoek op grond van lid 2, indien dit onderzoek zowel op dumping als op schade betrekking had, of op grond van dit lid), tenzij de autoriteiten, tijdens een onderzoek dat vóór die datum op hun eigen initiatief werd geopend of op een met redenen omkleed verzoek van of namens de binnenlandse bedrijfstak binnen een redelijke termijn vóór die datum, vaststellen dat het vervallen van het recht waarschijnlijk tot een voortzetting of herhaling van dumping en schade zou leiden258 . Het recht kan in afwachting van de resultaten van dit onderzoek gehandhaafd blijven.

• 11.4 Het bepaalde in artikel 6 ten aanzien van bewijsmateriaal en procedures is van toepassing op een herzieningsonderzoek dat op grond van dit artikel wordt uitgevoerd. Een dergelijk onderzoek wordt onverwijld uitgevoerd en binnen 12 maanden na de opening afgesloten.

• 11.5 Het bepaalde in dit artikel is van overeenkomstige toepassing op verbintenissen die overeenkomstig artikel 8 zijn aanvaard.

Artikel 12. Openbaarmaking en motivering van de vaststellingen

• 12.1 Indien de autoriteiten ervan overtuigd zijn dat er voldoende bewijsmateriaal is om, overeenkomstig artikel 5, een onderzoek te openen, wordt dit medegedeeld aan het Lid of de Leden waarvan de produkten onderzocht zullen worden en aan andere partijen waarvan de met het onderzoek belaste autoriteiten weten dat zij belang hebben bij het onderzoek. Tevens wordt een bericht gepubliceerd.

  • 12.1.1. Het bericht over de opening van het onderzoek bevat voldoende gegevens over de volgende punten of vermeldt dat deze in een afzonderlijk verslag259 beschikbaar zijn:

    • i. de naam van het land of de landen van uitvoer en de omschrijving van het betrokken produkt;

    • ii. de datum van opening van het onderzoek;

    • iii. waarom er volgens het verzoek sprake is van dumping;

    • iv. een samenvatting van de factoren waarop de schadeklacht is gebaseerd;

    • v. het adres waaraan belanghebbenden opmerkingen kunnen toezenden; en

    • vi. de termijnen waarbinnen belanghebbenden hun standpunt bekend moeten maken.

• 12.2 Er wordt bericht gepubliceerd over de voorlopige of definitieve vaststellingen, ongeacht of deze positief of negatief zijn, over besluiten tot aanvaarding van een verbintenis overeenkomstig artikel 8, over de beëindiging van een verbintenis en de beëindiging van een definitief anti-dumpingrecht. Elk bericht bevat voldoende gedetailleerde gegevens, of vermeldt dat deze in een afzonderlijk verslag beschikbaar zijn, over de bevindingen en conclusies inzake alle feitelijke en juridische gegevens die door de met het onderzoek belaste autoriteiten van belang werden geacht. Deze berichten en verslagen worden toegezonden aan het Lid of de Leden op de produkten waarvan deze vaststellingen of verbintenissen betrekking hebben en aan andere partijen waarvan bekend is dat zij daarbij belang hebben.

  • 12.2.1. Het bericht dat voorlopige maatregelen worden genomen bevat een voldoende gedetailleerde uitleg, of vermeldt dat deze in een afzonderlijk verslag beschikbaar zijn, over de voorlopige vaststellingen inzake het bestaan van dumping en schade en vermeldt de feitelijke en juridische elementen op grond waarvan argumenten zijn aanvaard of afgewezen. Dit bericht of verslag bevat, met inachtneming van verplichting tot bescherming van vertrouwelijke gegevens, met name het volgende:

    • i. de namen van de betrokken leveranciers of, wanneer dit niet praktisch mogelijk is, van de betrokken leverancierslanden;

    • ii. een voor douanedoeleinden voldoende nauwkeurige omschrijving van het produkt;

    • iii. de vastgestelde dumpingmarge en een volledige uitleg over de redenen voor de keuze van de methoden die voor de vaststelling van de exportprijs en de normale waarden en de vergelijking daartussen werden gebruikt, overeenkomstig artikel 2;

    • iv. de in artikel 3 genoemde overwegingen betreffende de vaststelling van schade;

    • v. de voornaamste redenen die tot de vaststelling hebben geleid.

  • 12.2.2. Bij een positieve vastststelling die tot de instelling van een definitief recht of de aanvaarding van een prijsverbintenis leidt, bevat het bericht over de beëindiging of de opschorting van het onderzoek of het afzonderlijke verslag waarnaar het bericht verwijst alle relevante gegevens betreffende de feitelijke en juridische elementen die aan het instellen van de definitieve maatregelen of de aanvaarding van de prijsverbintenis ten grondslag liggen, met inachtneming van de verplichting inzake de bescherming van vertrouwelijke informatie. Dit bericht of verslag bevat met name de in lid 2, onder a) bedoelde informatie evenals de redenen waarom argumenten of eisen van exporteurs of importeurs zijn aanvaard of afgewezen en de grondslag voor besluiten overeenkomstig artikel 6, lid 10.2.

  • 12.2.3. Het bericht over de beëindiging of de opschorting van een onderzoek na de aanvaarding, ingevolge artikel 8, van een verbintenis, bevat het niet-vertrouwelijke deel van deze verbintenis of vermeldt dat dit in een afzonderlijk verslag beschikbaar is.

• 12.3 Dit artikel is van overeenkomstige toepassing op de opening en voltooiing van herzieningsonderzoeken op grond van artikel 11 en op besluiten tot toepassing van rechten met terugwerkende kracht op grond van artikel 10.

Artikel 13. Rechterlijk toezicht

Een Lid waarvan de nationale wetgeving bepalingen over anti-dumpingrechten bevat, handhaaft de rechtbanken, scheidsgerechten of administratieve rechtbanken of procedures die onder andere ten doel hebben de administratieve maatregelen ten aanzien van definitieve vaststellingen en herzieningsonderzoeken in de zin van artikel 11 terstond te onderzoeken. Deze rechtbanken, gerechten en procedures zijn onafhankelijk van de autoriteiten die voor de betrokken vaststelling of het betrokken herzieningsonderzoek verantwoordelijk zijn.

Artikel 14. Anti-dumpingmaatregelen namens een derde land

• 14.1 Een verzoek tot het nemen van anti-dumpingmaatregelen namens een derde land moet worden ingediend door de autoriteiten van het derde land dat om de maatregelen verzoekt.

• 14.2 Bij dit verzoek dient informatie over prijzen te worden gevoegd waaruit blijkt dat invoer met dumping plaatsvindt en nauwkeurige gegevens waaruit blijkt dat deze invoer de betrokken bedrijfstak in het derde land schade toebrengt. De autoriteiten van het derde land verlenen de autoriteiten van het land van invoer alle nodige bijstand bij het verzamelen van aanvullende informatie die het laatstgenoemde land nodig kan hebben.

• 14.3 Bij het onderzoek van een dergelijk verzoek houden de autoriteiten van het land van invoer rekening met de gevolgen van de invoer die met dumping zou plaatsvinden voor de gehele bedrijfstak in het derde land. Bij het beoordelen van de schade dient derhalve niet alleen rekening te worden gehouden met de gevolgen van bedoelde invoer voor de uitvoer van de betrokken bedrijfstak naar het land van invoer en zelfs niet alleen met de totale uitvoer van de bedrijfstak.

• 14.4 Het besluit een procedure al dan niet voort te zetten wordt door het land van invoer genomen. Indien het land van invoer bereid is maatregelen te nemen, wordt het initiatief om de zaak ter goedkeuring aan de Raad voor de handel in goederen voor te leggen door het land van invoer genomen.

Artikel 15. Leden die ontwikkelingslanden zijn

De partijen zijn het erover eens dat de Leden die ontwikkelde landen zijn bij het onderzoek van verzoeken om anti-dumpingmaatregelen overeenkomstig het bepaalde in deze Overeenkomst bijzondere aandacht dienen te besteden aan de bijzondere situatie van de Leden die ontwikkelingslanden zijn. Vóór anti-dumpingrechten worden ingesteld die de wezenlijke belangen van de Leden die ontwikkelingslanden zijn zouden schaden, dient te worden nagegaan of de zaak kan worden geregeld door middel van de constructieve oplossingen waarin deze overeenkomst voorziet.

DEEL II

Artikel 16. Commissie Anti-dumpingpraktijken

• 16.1 Er wordt een Commissie Anti-dumpingpraktijken ingesteld (hierna „Commissie” genoemd) waarin vertegenwoordigers van elk Lid zitting hebben. De Commissie kiest haar voorzitter en komt ten minste twee maal per jaar bijeen en, overeenkomstig de bepalingen van deze Overeenkomst, op verzoek van een Lid. De Commissie voert de taken uit waarmee zij krachtens deze Overeenkomst of door de Leden is belast en stelt de Leden in de gelegenheid overleg te plegen over alle vraagstukken betreffende de toepassing van de Overeenkomst of het bevorderen van de doelstellingen ervan. Het WTO-Secretariaat treedt op als secretariaat van de Commissie.

• 16.2 De Commissie kan zo nodig suborganen instellen.

• 16.3 Bij het vervullen van hun taken kunnen de Commissie en haar eventuele suborganen overleg plegen met of inlichtingen inwinnen bij elke bron die daarvoor naar hun oordeel in aanmerking komen. Alvorens echter inlichtingen in te winnen bij een bron die onder de rechtsmacht van een Lid valt, dienen de Commissie of het suborgaan dit Lid hiervan in kennis te stellen. Zij dienen de toestemming te verkrijgen van het Lid en van alle ondernemingen waarbij inlichtingen worden ingewonnen.

• 16.4 De Leden doen de Commissie onverwijld verslag van alle door hen genomen voorlopige of definitieve anti-dumpingmaatregelen. Deze rapporten liggen op het Secretariaat ter inzage van de andere Leden. Voorts leggen de Leden halfjaarlijkse rapporten voor over alle anti-dumpingmaatregelen die zij de voorgaande zes maanden hebben genomen. Deze halfjaarlijkse rapporten worden op een overeengekomen standaardformulier gesteld.

• 16.5 Elk Lid deelt de Commissie mede a. welke van zijn autoriteiten bevoegd zijn het in artikel 5 bedoelde onderzoek te openen en uit te voeren, en b. zijn interne procedures voor de opening en uitvoering van een dergelijk onderzoek.

Artikel 17. Overleg en geschillenbeslechting

• 17.1 Behoudens andersluidende bepalingen in deze Overeenkomst is het Memorandum van overeenstemming inzake de beslechting van geschillen (DSU) van toepassing op het overleg en de beslechting van geschillen in het kader van deze Overeenkomst.

• 17.2 Elk Lid neemt de door andere Leden naar voren gebrachte opmerkingen in welwillende overweging en biedt voldoende gelegenheid tot overleg over alle onderwerpen die verband houden met de werking van deze Overeenkomst.

• 17.3 Indien een Lid van oordeel is dat een direct of indirect voor hem uit deze Overeenkomst voortvloeiend voordeel door een ander Lid of andere Leden wordt tenietgedaan of uitgehold of dat het bereiken van een doelstelling door een ander Lid of andere Leden wordt belemmerd, kan het, om tot een voor beide partijen bevredigende oplossing te komen, schriftelijk om overleg met het betrokken Lid of de betrokken Leden verzoeken. Elk Lid neemt een dergelijk verzoek om overleg van een ander Lid in welwillende overweging.

• 17.4 Indien het Lid dat om overleg heeft verzocht van oordeel is dat het overeenkomstig lid 3 gevoerde overleg niet tot een voor beide partijen bevredigende oplossing heeft geleid en de bevoegde autoriteiten van het importerende Lid het definitieve besluit tot heffing van anti-dumpingrechten of aanvaarding van prijsverbintenissen hebben genomen, kan het eerstgenoemde Lid de kwestie aan het Orgaan voor geschillenbeslechting (DSB) voorleggen. Wanneer een voorlopige maatregel belangrijke consequenties heeft en het Lid dat om het overleg heeft verzocht van oordeel is dat de maatregel strijdig is met artikel 7, lid 1, kan dit Lid de zaak eveneens aan het DSB voorleggen.

• 17.5 Het DSB richt op verzoek van de klagende partij een panel op dat een onderzoek instelt op basis van:

  • i. een schriftelijke verklaring waarin het Lid dat het verzoek indient uiteenzet op welke wijze een direct of indirect voor hem uit deze Overeenkomst voortvloeiend voordeel teniet wordt gedaan of uitgehold of het bereiken van de doelstellingen van de overeenkomst wordt belemmerd, en

  • ii. de gegevens die de autoriteiten van het importerende Lid overeenkomstig zijn interne procedures heeft verkregen.

• 17.6 Bij het onderzoek van het in lid 5 bedoelde probleem:

  • i. bepaalt het panel, bij het beoordelen van de feitelijke situatie, of de autoriteiten de feiten correct hebben vastgesteld en/of hun evaluatie van deze feiten onbevooroordeeld en objectief was. Indien de feiten correct werden vastgesteld en de evaluatie onbevooroordeeld en objectief was, wordt deze evaluatie niet teniet gedaan, zelfs indien het panel tot een andere conclusie komt;

  • ii. het panel interpreteert de desbetreffende bepalingen van de Overeenkomst volgens de gebruikelijke regels voor de interpretatie van het internationale publiekrecht. Indien het panel constateert dat een desbetreffende bepaling van de Overeenkomst voor meer dan één aanvaardbare interpretatie vatbaar is, gaat het ervan uit dat de conclusie van de autoriteiten in overeenstemming is met de Overeenkomst indien deze op één van deze aanvaardbare interpretaties gebaseerd is.

• 17.7 Aan het panel medegedeelde vertrouwelijke informatie wordt niet openbaar gemaakt zonder de formele toestemming van de persoon, instantie of autoriteit die deze informatie heeft verstrekt. Indien dergelijke informatie van het panel wordt gevraagd doch de openbaarmaking daarvan door het panel niet is toegestaan, wordt een niet-vertrouwelijke samenvatting verschaft van de informatie die is goedgekeurd door de persoon, het orgaan of de autoriteit die de informatie heeft verstrekt.

DEEL III

Artikel 18. Slotbepalingen

• 18.1 Specifieke maatregelen tegen invoer met dumping uit een ander Lid kunnen uitsluitend worden genomen overeenkomstig de bepalingen van de GATT 1994 zoals bij deze Overeenkomst geïnterpreteerdDeze bepaling vormt geen beletsel voor het nemen van maatregelen uit hoofde van andere relevante bepalingen van de GATT 1994.

• 18.2 Voorbehouden ten aanzien van het bepaalde in deze Overeenkomst kunnen uitsluitend met toestemming van de andere Leden worden gemaakt.

• 18.3 Onverminderd de leden 3.1. en 3.2. zijn de bepalingen van deze Overeenkomst van toepassing op onderzoeken en herzieningsonderzoeken van bestaande maatregelen die worden geopend naar aanleiding van verzoeken die worden ingediend op of na de datum waarop de WTO-Overeenkomst voor een Lid in werking treedt.

  • 18.3.1. Voor de berekening van de dumpingmarges in terugbetalingsprocedures uit hoofde van artikel 9, lid 3 zijn de bij de meest recente vaststelling of herziening van dumping gehanteerde regels van toepassing.

  • 18.3.2. Voor de toepassing van artikel 11, lid 3, worden bestaande anti-dumpingmaatregelen geacht uiterlijk op de datum van inwerkingtreding van de WTO-Overeenkomst voor een Lid-Staat te zijn ingesteld, behalve wanneer de op die datum geldende interne wetgeving van een Lid reeds een clausule van het in dit Lid bedoelde type bevatten.

• 18.4 Elk Lid neemt alle noodzakelijke maatregelen, van algemene of van bijzondere aard, om ervoor te zorgen dat uiterlijk op de datum waarop de WTO-Overeenkomst voor hem in werking treedt, zijn wetgeving, voorschriften en administratieve procedures in overeenstemming zijn met de bepalingen van deze Overeenkomst zoals deze voor het betrokken Lid van toepassing zijn.

• 18.5 Elk Lid stelt de Commissie in kennis van alle wijzigingen in zijn wetgeving en voorschriften die van belang zijn voor de toepassing van deze Overeenkomst evenals van wijzigingen met betrekking tot de toepassing van deze wetgeving en voorschriften.

• 18.6 De Commissie stelt elk jaar een onderzoek in naar de uitvoering en de werking van deze Overeenkomst, gelet op de doelstellingen ervan. De Commissie stelt de Raad voor de Handel in Goederen éénmaal per jaar in kennis van de ontwikkelingen die zich hebben voorgedaan in de periode waarop dit onderzoek betrekking had.

• 18.7 De bijlagen bij deze Overeenkomst maken daarvan integrerend deel uit.

Bijlage I. Procedures voor het onderzoek ter plaatse overeenkomstig Artikel 6, lid 7

• 1. Wanneer een onderzoek wordt geopend dienen de autoriteiten van het exporterende Lid en de ondernemingen waarvan bekend is dat zij bij de zaak betrokken zijn ervan in kennis te worden gesteld dat het voornemen bestaat een onderzoek ter plaatse in te stellen.

• 2. Indien in uitzonderlijke omstandigheden het voornemen bestaat deskundigen die niet in overheidsdienst zijn in het onderzoeksteam op te nemen, dienen de ondernemingen en autoriteiten van het exporterende Lid daarvan in kennis te worden gesteld. Tegen dergelijke deskundigen moeten daadwerkelijke sancties kunnen worden getroffen indien zij het vertrouwelijke karakter van de informatie niet respecteren.

• 3. De normale handelwijze dient erin te bestaan dat, vóór de definitieve datum van het bezoek wordt vastgesteld, de uitdrukkelijke toestemming van de betrokken ondernemingen in het exporterende Lid wordt verkregen.

• 4. Zodra de toestemming van de betrokken ondernemingen is verkregen, stellen de met het onderzoek belaste autoriteiten de autoriteiten van het exporterende Lid in kennis van de namen en adressen van de te bezoeken ondernemingen en overeengekomen data.

• 5. De ondernemingen dienen ruim van tevoren in kennis te worden gesteld van het bezoek.

• 6. Bezoeken die ten doel hebben de vragenlijst toe te lichten vinden uitsluitend plaats op verzoek van de exporterende onderneming. Een dergelijk bezoek vindt uitsluitend plaats indien a. de autoriteiten van het importerende Lid de vertegenwoordigers van het betrokken Lid daarvan in kennis stellen en b. laatstgenoemden geen bezwaar hebben tegen het bezoek.

• 7. Aangezien het onderzoek ter plaatse voornamelijk ten doel heeft de verstrekte gegevens te verifiëren of aanvullende informatie te verzamelen, dient het plaats te vinden nadat het antwoord op de vragenlijst is ontvangen, tenzij de betrokken onderneming een andere regeling aanvaardt en de overheid van het exporterende Lid door de met het onderzoek belaste autoriteiten in kennis worden gesteld van het eerdere bezoek en daartegen geen bezwaar heeft. Voorts dient de normale handelwijze erin te bestaan dat de betrokken ondernemingen voorafgaand aan het bezoek in kennis worden gesteld van het algemene karakter van de te verifiëren informatie en van alle verdere inlichtingen die dienen te worden verstrekt, hetgeen echter niet belet dat ter plaatse nadere bijzonderheden kunnen worden gevraagd ter aanvulling van de verkregen informatie.

• 8. Vragen van de autoriteiten of ondernemingen van de exporterende Leden die van wezenlijk belang zijn voor het welslagen van het onderzoek ter plaatse dienen, voor zover mogelijk, voor het bezoek te worden beantwoord.

Bijlage II. Meest betrouwbare informatie die beschikbaar is in de zin van Artikel 6, lid 8

1.

Zo spoedig mogelijk na de opening van het onderzoek geven de met het onderzoek belaste autoriteiten nauwkeurig aan welke gegevens zij van belanghebbenden wensen te ontvangen, evenals de wijze waarop belanghebbenden hun antwoorden dienen te structureren. De autoriteiten zien er bovendien op toe dat belanghebbenden ervan op de hoogte zijn dat, indien de informatie niet binnen een redelijke termijn wordt verstrekt, zij hun vaststellingen kunnen doen op basis van de beschikbare gegevens, met inbegrip van die welke door de binnenlandse bedrijfstak in het verzoek tot opening van het onderzoek zijn verstrekt.

2.

De autoriteiten kunnen bovendien verlangen dat een belanghebbende zijn antwoord op een bepaalde drager (bijvoorbeeld magneetband) of in een bepaalde computertaal verstrekt. Wanneer een dergelijk verzoek wordt gedaan, gaan de autoriteiten na of de belanghebbende redelijkerwijze in staat is zijn antwoorden op de gevraagde drager of in de gevraagde computertaal te verstrekken en zij verlangen niet dat deze voor het verstrekken van zijn antwoord een ander dan zijn eigen computersysteem gebruikt. De autoriteiten eisen niet dat het antwoord via de computer wordt verstrekt indien de belanghebbende niet over een geautomatiseerde administratie beschikt en deze wijze van beantwoording van de gestelde vragen een onredelijke extra belasting voor hem zou inhouden, met andere woorden, indien dit onredelijke bijkomende kosten en moeilijkheden zou veroorzaken.

3.

Alle controleerbare informatie die zo wordt verstrekt dat zij zonder grote moeilijkheden bij het onderzoek kan worden gebruikt, tijdig ter beschikking wordt gesteld en, in voorkomend geval, op een door de autoriteiten gevraagde drager of in een door de autoriteiten gevraagde computertaal wordt verstrekt, dient bij de vaststellingen in aanmerking te worden genomen. Indien een partij haar antwoord niet op de gewenste drager of in de gewenste computertaal verstrekt, maar de autoriteiten constateren dat aan de in punt 2 gestelde voorwaarden is voldaan, mag dit niet worden beschouwd het onderzoek aanmerkelijk te belemmeren.

4.

Wanneer de autoriteiten de op een bepaalde drager (bijvoorbeeld magneetband) verstrekte informatie niet kunnen verwerken, dient deze schriftelijk of in een andere voor de autoriteiten aanvaardbare vorm te worden toegezonden.

5.

Het feit dat de verstrekte informatie niet in alle opzichten ideaal is, mag voor de autoriteiten geen reden zijn deze buiten beschouwing te laten, indien de belanghebbende al het nodige heeft gedaan om de best mogelijke informatie te verstrekken.

6.

Indien bewijsmateriaal of inlichtingen niet worden aanvaard, dient de partij die deze heeft verstrekt onverwijld in kennis te worden gesteld van de redenen die aan deze afwijzing ten grondslag liggen en dient zij in gelegenheid te worden gesteld binnen een redelijke termijn nadere inlichtingen te verstrekken, waarbij rekening dient te worden gehouden met de termijnen van het onderzoek. Indien de nadere inlichtingen door de autoriteiten ontoereikend worden geacht, dienen de redenen voor de afwijzing van dergelijk bewijsmateriaal of dergelijke informatie te worden vermeld in alle vaststellingen die openbaar worden gemaakt.

7.

Indien de autoriteiten hun bevindingen, met inbegrip van die welke betrekking hebben op de normale waarde, dienen te baseren op informatie die zij uit secundaire bron hebben verkregen, met inbegrip van informatie die in het verzoek tot opening van een onderzoek was opgenomen, dienen zij de nodige voorzorgsmaatregelen in acht te nemen. In dergelijke gevallen dienen de autoriteiten de verkregen informatie, indien mogelijk, te toetsen aan informatie uit andere onafhankelijke bronnen waarover zij beschikken, zoals gepubliceerde prijslijsten, officiële invoerstatistieken of douanestatistieken alsmede aan de informatie die in de loop van het onderzoek van andere belanghebbenden werd verkregen. Het spreekt echter vanzelf dat indien een belanghebbende geen medewerking verleent en de autoriteiten derhalve bepaalde relevante informatie wordt onthouden, dit ten gevolge kan hebben dat de resultaten voor deze belanghebbende minder gunstig zijn dan indien hij zijn medewerking had verleend.

Overeenkomst inzake de toepassing van artikel VII van de Algemene Overeenkomst betreffende Tarieven en Handel 1994

Algemene inleiding

• 1. De grondslag van de douanewaarde voor de toepassing van deze Overeenkomst is de „transactiewaarde" als omschreven in artikel 1. artikel 1 dient te worden gelezen in samenhang met artikel 8, dat, onder meer, in een aanpassing van de werkelijk betaalde of te betalen prijs voorziet in het geval dat bepaalde specifieke elementen die worden geacht deel uit te maken van de douanewaarde ten laste van de koper komen, maar niet in de werkelijk voor de in te voeren goederen betaalde of te betalen prijs zijn begrepen. In artikel 8 is tevens bepaald dat sommige prestaties van de koper ten gunste van de verkoper die veeleer in de vorm van bepaalde goederen of diensten dan in de vorm van geld worden verstrekt tot de transactiewaarde behoren. De artikelen 2 tot en met 7 hebben betrekking op de methoden voor het bepalen van de douanewaarde in gevallen waarin deze waarde niet met toepassing van artikel 1 kan worden vastgesteld.

• 2. Wanneer de douanewaarde niet overeenkomstig artikel 1 kan worden bepaald, plegen de douanediensten en de importeur normaliter overleg om de grondslag van de waarde overeenkomstig artikel 2 of artikel 3 vast te stellen. Het kan bijvoorbeeld voorkomen dat de importeur over gegevens betreffende de douanewaarde van ingevoerde identieke of soortgelijke goederen beschikt waarover de douanediensten van de invoerhaven niet direct beschikken. Het is echter ook mogelijk dat de douanediensten over inlichtingen betreffende de douanewaarde van ingevoerde identieke of soortgelijke goederen beschikken die voor de importeur niet zonder meer toegankelijk zijn. Door overleg tussen de partijen kunnen met inachtneming van het handelsgeheim inlichtingen worden uitgewisseld teneinde een passende grondslag voor de douanewaarde vast te stellen.

• 3. De artikelen 5 en 6 verschaffen twee grondslagen voor het bepalen van de douanewaarde in gevallen waarin deze niet op grond van de transactiewaarde van de ingevoerde goederen of van ingevoerde identieke of soortgelijke goederen kan worden vastgesteld. Krachtens artikel 5, lid 1 wordt de douanewaarde bepaald op grond van de prijs waartegen de goederen in de staat waarin zij worden ingevoerd aan een niet verbonden koper in het land van invoer worden verkocht. Voorts heeft de importeur op zijn verzoek het recht de douanewaarde van goederen die na de invoer aan een bewerking of verwerking worden onderworpen met toepassing van artikel 5 te doen bepalen. Krachtens artikel 6 wordt de douanewaarde op grond van de berekende waarde bepaald. Beide methoden doen evenwel bepaalde moeilijkheden rijzen en om die reden geeft artikel 4 de importeur het recht de volgorde te kiezen waarin beide methoden worden toegepast.

• 4. In artikel 7 is aangegeven hoe de douanewaarde wordt bepaald in gevallen waarin dit niet op basis van een van de voorafgaande artikelen kan geschieden.

De Leden,

Gelet op de multilaterale handelsbesprekingen;

Verlangende de doelstellingen van GATT 1994 te bevorderen en de internationale handel van de ontwikkelingslanden een extra stimulans te geven;

Erkennende het belang van artikel VII van GATT 1994 en verlangende regels vast te stellen ter bevordering van een grotere eenvormigheid en rechtszekerheid bij de toepassing van deze bepalingen;

Erkennende de noodzaak van een rechtvaardig, éénvormig en neutraal systeem voor het bepalen van de douanewaarde van goederen dat het gebruik van willekeurig vastgestelde of fictieve douanewaarden uitsluit;

Erkennende dat de grondslag voor de berekening van de douanewaarde van goederen zoveel mogelijk de transactiewaarde dient te zijn van de goederen waarvan de waarde wordt bepaald;

Erkennende dat de douanewaarde op eenvoudige en billijke, met de handelspraktijk verenigbare grondslagen dient te berusten en dat de methoden voor het bepalen van de waarde van algemene toepassing moeten zijn, ongeacht de herkomst van de goederen;

Erkennende dat de procedures voor het bepalen van de douanewaarde niet voor het bestrijden van dumping mogen worden gebruikt;

Zijn het volgende overeengekomen:

DEEL I. REGELS VOOR HET BEPALEN VAN DE DOUANEWAARDE

Artikel 1

• 1 De douanewaarde van ingevoerde goederen is de transactiewaarde, dat wil zeggen de voor de goederen werkelijk betaalde of te betalen prijs wanneer deze voor uitvoer naar het land van invoer worden verkocht, aangepast overeenkomstig artikel 8, op voorwaarde dat:

  • a. er geen beperkingen zijn ten aanzien van de overdracht of het gebruik van de goederen door de koper, met uitzondering van beperkingen die:

    • i. worden opgelegd of voorgeschreven door de wet of de autoriteiten in het land van invoer;

    • ii. het geografische gebied beperken waarbinnen de goederen mogen worden doorverkocht; of

    • iii. de waarde van de goederen niet aanmerkelijk beïnvloeden;

• b. de verkoop of de prijs niet zijn beïnvloed door enige voorwaarde of prestatie waarvan de waarde, voor zover deze betrekking heeft op de goederen waarvan de waarde wordt bepaald, niet kan worden vastgesteld;

• c. geen enkel deel van de opbrengst van de latere wederverkoop, overdracht of het latere gebruik van de goederen door de koper direct of indirect ten goede zal komen aan de verkoper, tenzij een passende correctie kan worden toegepast overeenkomstig artikel 8; en

• d. de koper en de verkoper niet verbonden zijn of, indien de koper en de verkoper verbonden zijn, de transactiewaarde voor douanedoeleinden aanvaardbaar is ingevolge het bepaalde in lid 2.

• 2

  • a. Voor het beantwoorden van de vraag of de transactiewaarde aanvaardbaar is voor de toepassing van lid 1, is het feit dat de koper en de verkoper verbonden zijn in de zin van artikel 15 op zich geen reden de transactiewaarde als niet aanvaardbaar aan te merken. In dergelijk geval worden de omstandigheden van de verkoop onderzocht en wordt de transactiewaarde aanvaard op voorwaarde dat de verbondenheid de prijs niet heeft beïnvloed. Indien de douane, op grond van de informatie die zij van de importeur of anderszins heeft verkregen, redenen heeft om aan te nemen dat de verbondenheid de prijs heeft beïnvloed, deelt zij die redenen mede aan de importeur die voldoende gelegenheid moet worden gegeven om te reageren. Indien de importeur dit verlangt, worden de redenen hem schriftelijk ter kennis gebracht.

  • b. Bij een verkoop tussen verbonden personen wordt de transactiewaarde aanvaard en de waarde van de goederen vastgesteld overeenkomstig de bepalingen van lid 1, indien de importeur aantoont dat op hetzelfde of nagenoeg hetzelfde tijdstip die waarde een van de volgende waarden zeer dicht benadert:

    • i. de transactiewaarde van identieke of soortgelijke goederen bij verkopen voor uitvoer naar hetzelfde land van invoer aan niet verbonden kopers;

    • ii. de douanewaarde van identieke of soortgelijke goederen, vastgesteld overeenkomstig het bepaalde in artikel 5;

    • iii. de douanewaarde van identieke of soortgelijke goederen, vastgesteld overeenkomstig het bepaalde in artikel 6.

    Bij de toepassing van de vorengenoemde criteria wordt naar behoren rekening gehouden met aangetoonde verschillen in handelsniveau en hoeveelheid, evenals met de in artikel 8 genoemde elementen en met de kosten die de verkoper maakt bij verkopen aan niet met hem verbonden kopers en die hij niet maakt bij verkopen aan kopers die wel met hem zijn verbonden.

  • c. De in lid 2, onder b. genoemde criteria worden op verzoek van de importeur toegepast en dienen alleen ter vergelijking. Vervangende waarden kunnen niet met toepassing van lid 2, onder b. worden vastgesteld.

Artikel 2

• 1

  • a. Indien de douanewaarde van de ingevoerde goederen niet met toepassing van artikel 1 kan worden vastgesteld, is de douanewaarde de transactiewaarde van identieke goederen die voor uitvoer naar hetzelfde land van invoer zijn verkocht en waarvan de uitvoer op hetzelfde of nagenoeg hetzelfde tijdstip heeft plaatsgevonden als die van de goederen waarvan de waarde wordt bepaald.

  • b. Bij toepassing van dit artikel wordt de douanewaarde vastgesteld aan de hand van de transactiewaarde van identieke goederen die op hetzelfde handelsniveau en in nagenoeg dezelfde hoeveelheid zijn verkocht als de goederen waarvan de waarde wordt bepaald. Bij ontstentenis van een dergelijke verkoop wordt gebruik gemaakt van de transactiewaarde van identieke goederen die op een verschillend handelsniveau en/of in verschillende hoeveelheden zijn verkocht, aangepast ten einde rekening te houden met deze verschillen in handelsniveau en/of hoeveelheid, mits aan dergelijke aanpassingen bewijsmateriaal ten grondslag ligt waaruit duidelijk blijkt dat zij redelijk en exact zijn en ongeacht of de aanpassingen een verhoging dan wel een verlaging van de waarde ten gevolge hebben.

• 2 Indien de in artikel 8, lid 2 bedoelde kosten in de transactiewaarde begrepen zijn, wordt deze waarde aangepast ten einde rekening te houden met aanmerkelijke verschillen, wat deze kosten betreft, tussen de ingevoerde goederen en de in aanmerking genomen identieke goederen die het gevolg zijn van verschillen in afstanden en wijzen van vervoer.

• 3 Indien bij de toepassing van dit artikel meer dan een transactiewaarde van identieke goederen wordt gevonden, wordt de douanewaarde van de ingevoerde goederen op basis van de laagste van die waarden vastgesteld.

Artikel 3

• 1

  • a. Indien de douanewaarde van de ingevoerde goederen niet met toepassing van het bepaalde in de artikelen 1 en 2 kan worden vastgesteld, is de douanewaarde de transactiewaarde van soortgelijke goederen die voor uitvoer naar hetzelfde land van invoer zijn verkocht en die op hetzelfde of nagenoeg hetzelfde tijdstip zijn uitgevoerd als de goederen waarvan de waarde wordt bepaald.

  • b. Bij toepassing van dit artikel wordt de douanewaarde vastgesteld aan de hand van de transactiewaarde van soortgelijke goederen die op hetzelfde handelsniveau en in nagenoeg dezelfde hoeveelheid zijn verkocht als de goederen waarvan de waarde wordt bepaald. Bij ontstentenis van een dergelijke verkoop wordt gebruik gemaakt van de transactiewaarde van soortgelijke goederen die op een verschillend handelsniveau en/of in verschillende hoeveelheden zijn verkocht, aangepast ten einde rekening te houden met verschillen in handelsniveau en/of hoeveelheid, mits dergelijke correcties gegrond zijn op bewijsmateriaal waaruit duidelijk blijkt dat zij redelijk en exact zijn en ongeacht of zij een verhoging dan wel een verlaging van de waarde ten gevolge hebben.

• 2 Indien de in artikel 8, lid 2 bedoelde kosten in de transactiewaarde begrepen zijn, wordt deze waarde aangepast ten einde rekening te houden met aanmerkelijke verschillen, wat deze kosten betreft, tussen de ingevoerde en de in aanmerking genomen soortgelijke goederen die het gevolg zijn van verschillen in afstanden en wijzen van vervoer.

• 3 Indien bij toepassing van dit artikel meer dan een transactiewaarde van soortgelijke goederen wordt gevonden, wordt de douanewaarde van de ingevoerde goederen op basis van de laagste van die waarden vastgesteld.

Artikel 4

Indien de douanewaarde van de ingevoerde goederen niet met toepassing van het bepaalde in de artikelen 1, 2 en 3 kan worden vastgesteld, wordt zij overeenkomstig artikel 5 vastgesteld of, indien de douanewaarde niet met toepassing van dat artikel kan worden vastgesteld, met toepassing van de bepalingen van artikel 6, met dien verstande dat de toepassingsvolgorde van de artikelen 5 en 6 op verzoek van de importeur wordt omgekeerd.

Artikel 5

• 1

  • a. Indien de ingevoerde goederen of ingevoerde identieke of soortgelijke goederen in het land van invoer worden verkocht in de staat waarin zij zijn ingevoerd, wordt de met toepassing van dit artikel vastgestelde douanewaarde van de ingevoerde goederen gebaseerd op de prijs per eenheid waartegen de ingevoerde goederen of ingevoerde identieke of soortgelijke goederen, op of omstreeks het tijdstip van invoer van de goederen waarvan de waarde wordt bepaald, aldus in de grootste totale hoeveelheid worden verkocht aan personen die niet zijn verbonden met de personen van wie zij deze goederen kopen, minus de volgende elementen:

    • i. hetzij de commissies die gewoonlijk worden betaald of overeengekomen, hetzij de gebruikelijke marges voor winst en algemene kosten bij verkopen in het land van invoer van ingevoerde goederen van dezelfde aard of soort;

    • ii. de gebruikelijke kosten van vervoer en verzekering en aanverwante kosten, gemaakt in het land van invoer;

    • iii. in voorkomend geval de in artikel 8, lid 2 bedoelde kosten; en

    • iv. de douanerechten en andere nationale belastingen die in het land van invoer in verband met de invoer of de verkoop van de goederen verschuldigd zijn.

  • b. Indien noch de ingevoerde goederen, noch ingevoerde identieke of soortgelijke goederen worden verkocht op of omstreeks het tijdstip van invoer van de goederen waarvan de waarde wordt vastgesteld, wordt de douanewaarde, behoudens het bepaalde in lid 1, onder a., vastgesteld op basis van de prijs per eenheid waartegen de ingevoerde goederen of ingevoerde identieke of soortgelijke goederen in de staat waarin zij zijn ingevoerd in het land van invoer worden verkocht op de vroegste datum na de datum van invoer van de goederen waarvan de waarde wordt bepaald, doch niet later dan 90 dagen na die invoer.

• 2 Indien noch de ingevoerde goederen, noch identieke of soortgelijke ingevoerde goederen in het land van invoer worden verkocht in de staat waarin zij zijn ingevoerd, wordt op verzoek van de importeur de douanewaarde gebaseerd op de prijs per éénheid waartegen de ingevoerde goederen na bewerking of verwerking in de grootste totale hoeveelheid zijn verkocht aan personen in het land van invoer die niet zijn verbonden met de personen van wie zij deze goederen kopen, met inachtneming van de door de bewerking of verwerking toegevoegde waarde en de in lid 1, onder a. bedoelde in mindering te brengen elementen.

Artikel 6

• 1 De op grond van dit artikel bepaalde douanewaarde van ingevoerde goederen is gebaseerd op een berekende waarde. Deze berekende waarde bestaat uit de som van:

  • a. de kosten of de waarde van de materialen en de vervaardiging of van andere bij de voortbrenging van de ingevoerde goederen verrichte handelingen;

  • b. een bedrag voor winst en algemene kosten dat overeenkomt met het bedrag dat producenten in het land van uitvoer gewoonlijk incalculeren bij de verkoop voor uitvoer naar het land van invoer van goederen van dezelfde aard of soort als de goederen waarvan de waarde wordt bepaald;

  • c. de kosten of de waarde van alle andere uitgaven waarmee rekening moet worden gehouden bij de toepassing van de door een Lid krachtens artikel 8, lid 2 gekozen methode van waardebepaling.

• 2 Geen van de Leden kan, ten behoeve van de vaststelling van een berekende waarde, een niet op haar grondgebied gevestigde persoon dwingen tot het overleggen voor onderzoek van, of het geven van inzage in enige boekhoudkundige rekening of ander document. Niettemin kunnen de autoriteiten van het land van invoer, met toestemming van de producent van de goederen, de inlichtingen die deze met het oog op de vaststelling van de douanewaarde overeenkomstig het bepaalde in dit artikel heeft verstrekt in een ander land controleren, op voorwaarde dat genoemde autoriteiten de overheidsinstanties van het betrokken land tijdig inlichten en deze laatsten geen bezwaar maken tegen het onderzoek.

Artikel 7

• 1 Indien de douanewaarde van de ingevoerde goederen niet met toepassing van de artikelen 1 tot en met 6 kan worden vastgesteld, wordt deze waarde vastgesteld met redelijke middelen die verenigbaar zijn met de beginselen en algemene bepalingen van de onderhavige Overeenkomst en van artikel VII van GATT 1994 en op basis van de in het land van invoer beschikbare gegevens.

• 2 De uit hoofde van dit artikel vastgestelde douanewaarde is niet gebaseerd op:

  • a. de verkoopprijs in het land van invoer van in dat land voortgebrachte goederen;

  • b. een systeem dat voorziet in de aanvaarding voor douanedoeleinden van de hoogste van twee alternatieve waarden;

  • c. de prijs van goederen op de binnenlandse markt van het land van uitvoer;

  • d. de produktiekosten, andere dan berekende waarden die met toepassing van artikel 6 voor identieke of soortgelijke goederen zijn vastgesteld;

  • e. de prijs van de voor uitvoer naar een ander land dan het land van invoer bestemde goederen;

  • f. minimum douanewaarden; of

  • g. willekeurig vastgestelde of fictieve waarden.

• 3 De importeur wordt op zijn verzoek schriftelijk in kennis gesteld van de overeenkomstig het bepaalde in dit artikel vastgestelde waarde en de daarbij gehanteerde methode.

Artikel 8

• 1 Wanneer de douanewaarde met toepassing van artikel 1 wordt vastgesteld, wordt de werkelijk voor de ingevoerde goederen betaalde of te betalen prijs verhoogd met:

  • a. de volgende elementen, voor zover deze ten laste komen van de koper en zij niet in de werkelijk voor de goederen betaalde of te betalen prijs begrepen zijn:

    • i. commissies en courtage, met uitzondering van inkoopcommissies;

    • ii. de kosten van verpakkingsmiddelen die voor douanedoeleinden worden geacht een geheel te vormen met de goederen;

    • iii. de kosten van het verpakken, zowel arbeidsloon als materiaal;

  • b. de waarde, naar verhouding toegedeeld, van de onderstaande goederen en diensten indien deze gratis of tegen verlaagde prijs rechtstreeks of onrechtstreeks door de koper worden geleverd ten behoeve van de voortbrenging en de verkoop voor uitvoer van de ingevoerde goederen, voor zover deze waarde niet in de werkelijk betaalde of te betalen prijs is begrepen:

    • i. in de ingevoerde goederen verwerkte materialen, delen, onderdelen en dergelijke;

    • ii. werktuigen, matrijzen, gietvormen en dergelijke bij de voortbrenging van de ingevoerde goederen gebruikte voorwerpen;

    • iii. bij de voortbrenging van de ingevoerde goederen verbruikte materialen;

    • iv. „engineering", ontwikkeling, werken van kunst, ontwerpen, tekeningen en schetsen, verricht of gemaakt elders dan in het land van invoer en noodzakelijk voor de voortbrenging van de ingevoerde goederen;

  • c. royalties en licentierechten in verband met de goederen waarvan de waarde wordt bepaald, die de koper overeenkomstig de verkoopvoorwaarden direct of indirect moet betalen, voor zover deze royalties en licentierechten niet in de werkelijk betaalde of te betalen prijs zijn begrepen;

  • d. de waarde van elk deel van de opbrengst van een latere wederverkoop, overdracht of gebruik van de ingevoerde goederen dat de verkoper rechtstreeks of onrechtstreeks toekomt.

• 2 Elk Lid neemt in zijn nationale wetgeving bepalingen op die erin voorzien dat de hiernavolgende elementen geheel of ten dele, hetzij van de douanewaarde worden uitgesloten, hetzij daarin worden begrepen:

  • a. de kosten van het vervoer van de ingevoerde goederen tot de haven of plaats van invoer;

  • b. de kosten van laden, lossen en behandeling van de ingevoerde goederen in verband met het vervoer daarvan tot de haven of plaats van invoer; en

  • c. de verzekeringskosten.

• 3 Wanneer met toepassing van dit artikel elementen aan de werkelijk betaalde of te betalen prijs worden toegevoegd geschiedt zulks enkel op basis van objectieve en kwantificeerbare gegevens.

• 4 Aan de werkelijke betaalde of te betalen prijs worden geen andere elementen toegevoegd dan die waarin dit artikel voorziet.

Artikel 9

• 1 Indien voor de vaststelling van de douanewaarde een munteenheid moet worden omgerekend, wordt daarvoor de door de bevoegde autoriteiten van het betrokken land van invoer bekendgemaakte wisselkoers gebruikt die, voor de periode waarop elk publicatiedocument betrekking heeft, zo getrouw mogelijk de gangbare waarde van die munteenheid bij handelstransacties in de munteenheid van het land van invoer weergeeft;

• 2 De te gebruiken omrekeningskoers is die welke van kracht is op het tijdstip van uitvoer of van invoer, al naar gelang door elk Lid wordt bepaald.

Artikel 10

Elke voor het vaststellen van de douanewaarde verstrekte inlichting die een vertrouwelijk karakter heeft of die op vertrouwelijke grondslag wordt medegedeeld, wordt door de betrokken autoriteiten als strikt vertrouwelijk behandeld en wordt door hen niet bekendgemaakt zonder de uitdrukkelijke toestemming van de persoon of overheidsinstantie die ze heeft verstrekt, tenzij deze bekendmaking in het kader van gerechtelijke procedures gevorderd wordt.

Artikel 11

• 1 De wetgeving van elk Lid voorziet in verband met de vaststelling van de douanewaarde in een recht op beroep, zonder sanctie, ten behoeve van de importeur of enige andere tot betaling van het invoerrecht gehouden persoon.

• 2 Een eerste beroep zonder sanctie kan bij een douaneinstantie of bij een onafhankelijk lichaam worden ingesteld, hoewel de wetgeving van ieder Lid in een recht op beroep zonder sanctie bij een rechterlijke instantie voorziet.

• 3 De uitspraak op het beroep wordt de appellant ter kennis gebracht en de motivering van de uitspraak wordt hem schriftelijk medegedeeld. Tevens wordt hij ingelicht omtrent zijn recht op verder beroep.

Artikel 12

De algemeen toepasselijke wetten, verordeningen en rechterlijke en administratieve besluiten ter uitvoering van deze overeenkomst worden door het betrokken land van invoer bekendgemaakt overeenkomstig artikel X van GATT 1994.

Artikel 13

Indien bij de vaststelling van de douanewaarde van ingevoerde goederen blijkt dat het noodzakelijk is de definitieve vaststelling van deze douanewaarde uit te stellen, kan de importeur zijn goederen niettemin aan het douaneverband onttrekken, mits hij, indien vereist, een toereikende zekerheid stelt – in de vorm van een borgstelling of waarborgsom of op enige andere passende wijze – voor de definitieve betaling van de invoerrechten die voor de goederen verschuldigd kunnen zijn. In de wetgeving van elk Lid worden daartoe strekkende bepalingen opgenomen.

Artikel 14

De aantekeningen in bijlage I bij deze Overeenkomst vormen een integrerend deel van deze Overeenkomst en de artikelen van deze Overeenkomst moeten in samenhang met hun respectieve aantekeningen worden gelezen en toegepast. Bijlage II en bijlage III vormen eveneens een integrerend deel van deze Overeenkomst.

Artikel 15

• 1 In deze Overeenkomst wordt verstaan onder:

  • a. „douanewaarde van ingevoerde goederen”, de waarde van de goederen zoals deze is vastgesteld met het oog op de heffing van ad valorem douanerechten van ingevoerde goederen;

  • b. „land van invoer”, land of douanegebied van invoer; en

  • c. „voortgebracht”, onder meer geteeld, gefabriceerd en gedolven.

• 2 In deze Overeenkomst:

  • a. worden onder „identieke goederen” verstaan goederen die in alle opzichten gelijk zijn, onder meer wat hun fysieke kenmerken, kwaliteit en reputatie betreft. Geringe verschillen in uiterlijk voorkomen zijn geen beletsel om goederen die voor het overige aan de definitie voldoen, als identiek aan te merken;

  • b. worden onder „soortgelijke goederen” verstaan goederen die, hoewel zij niet in alle opzichten gelijk zijn, dezelfde kenmerken vertonen en dezelfde bestanddelen bevatten, waardoor zij dezelfde functies kunnen vervullen en in de handel onderling uitwisselbaar zijn. De kwaliteit van de goederen, hun reputatie en de aanwezigheid van een handelsmerk behoren tot de factoren die in aanmerking moeten worden genomen bij het beantwoorden van de vraag of goederen soortgelijk zijn;

  • c. worden onder „identieke goederen” en „soortgelijke goederen”, al naar gelang van het geval, niet verstaan goederen waarin engineering, ontwikkeling, werken van kunst, ontwerpen, tekeningen en schetsen zijn verwerkt of tot uitdrukking gebracht, waarvoor, wegens het feit dat zij in het land van invoer werden verricht of gemaakt, geen correctie in de zin van artikel 8, lid 1, onder b., punt iv. heeft plaatsgevonden.

  • d. worden goederen slechts als „identieke goederen” of „soortgelijke goederen” aangemerkt indien zij in hetzelfde land zijn voortgebracht als de goederen waarvan de waarde wordt bepaald;

  • e. worden door een andere persoon voortgebrachte goederen slechts in aanmerking genomen indien er, al naar gelang van het geval, geen identieke of soortgelijke goederen voorhanden zijn die door dezelfde persoon zijn voortgebracht als de goederen waarvan de waarde wordt bepaald.

• 3 In deze Overeenkomst worden onder „goederen van dezelfde aard of soort” verstaan, goederen behorende tot een groep of assortiment van goederen, identieke of soortgelijke goederen daaronder begrepen, die door een bepaalde industrie of bedrijfstak worden voortgebracht.

• 4 Voor de toepassing van deze Overeenkomst worden personen enkel geacht te zijn verbonden indien:

  • a. zij functionaris of directeur zijn in elkaars ondernemingen;

  • b. zij van rechtswege in zaken verbonden zijn;

  • c. de een de werkgever is van de ander;

  • d. enig persoon, direct of indirect, 5% of meer van het stemgerechtigde uitstaande kapitaal of de aandelen van beiden in zijn bezit heeft, daarover zeggenschap heeft of daarvan houder is;

  • e. een van hen direct of indirect zeggenschap heeft over de ander;

  • f. een derde persoon, direct of indirect, zeggenschap heeft over beiden;

  • g. zij te zamen, direct of indirect, zeggenschap hebben over een derde persoon; of

  • h. zij leden zijn van dezelfde familie.

• 5 Personen die in zaken verbonden zijn doordat de één exclusief agent, exclusief distributeur of exclusief concessiehouder, ongeacht de gebruikte omschrijving, van de ander is, worden voor de toepassing van deze Overeenkomst geacht te zijn verbonden indien zij aan één van de in lid 4 opgenomen criteria beantwoorden.

Artikel 16

De importeur heeft op door hem ingediend schriftelijk verzoek recht op een schriftelijke toelichting van de douane van het land van invoer waarin deze uiteenzet op welke wijze de douanewaarde van de door hem ingevoerde goederen werd vastgesteld.

Artikel 17

Niets in deze Overeenkomst mag worden uitgelegd als een beperking of betwisting van de rechten van de douanediensten zich te vergewissen van de echtheid of de juistheid van elke verklaring, elk document of elke aangifte die met het oog op de vaststelling van de douanewaarde worden overgelegd.

DEEL II. BEHEER VAN DE OVEREENKOMST, OVERLEG EN GESCHILLENBESLECHTING

Artikel 18. Instellingen

• 1 Er wordt een Commissie douanewaarde (hierna te noemen „de Commissie”) ingesteld, die is samengesteld uit vertegenwoordigers van elk der partijen. De Commissie kiest haar voorzitter en vergadert normaliter éénmaal per jaar of zo dikwijls als de desbetreffende bepalingen van de Overeenkomst voorschrijven. Doel van de vergaderingen is de Leden de gelegenheid te geven tot overleg over zaken die verband houden met het beheer van het systeem voor het vaststellen van de douanewaarde door elk van de Leden voor zover dit de werking van deze Overeenkomst kan beïnvloeden of haar doelstellingen kan bevorderen, alsmede het uitvoeren van de overige taken die de Leden de Commissie kunnen opdragen. Het secretariaat van de Commissie wordt door het Secretariaat van de WTO waargenomen.

• 2 Er wordt, onder de auspiciën van de Internationale Douaneraad (in deze Overeenkomst „de IDR” genoemd), een technische commissie douanewaarde (hierna te noemen „Technische commissie”) ingesteld die de in bijlage II bij deze Overeenkomst omschreven taken uitvoert overeenkomstig het reglement van orde dat in deze bijlage is opgenomen.

Artikel 19. Overleg en geschillenbeslechting

• 1 Behoudens andersluidende bepalingen in deze Overeenkomst is het „Memorandum van Overeenstemming inzake de regels en procedures betreffende de beslechting van geschillen” van toepassing op het overleg en de regeling van geschillen in het kader van deze Overeenkomst.

• 2 Indien een Lid van mening is dat een voordeel dat hem ingevolge deze Overeenkomst rechtstreeks of onrechtstreeks toekomt, wordt tenietgedaan of in het gedrang wordt gebracht, dan wel dat de verwezenlijking van enige doelstelling van deze Overeenkomst door de handelingen van een ander Lid of andere Leden wordt belemmerd, kan het eerstgenoemde Lid, ten einde een wederzijds bevredigende oplossing te vinden voor het probleem, om overleg met het betrokken Lid of de betrokken Leden verzoeken. Ieder Lid neemt alle verzoeken om overleg van een ander Lid in welwillende overweging.

• 3 De Technische commissie verleent desgevraagd advies en bijstand aan de bij het overleg betrokken Leden.

• 4 Op verzoek van een partij bij het geschil of eigener beweging kan een voor het onderzoek van een geschil in verband met de bepalingen van deze Overeenkomst opgericht panel de Technische commissie verzoeken alle technische kwesties aan een onderzoek te onderwerpen. Het panel stelt de taakomschrijving van de Technische commissie voor het betreffende geschil vast evenals de termijn waarbinnen de Technische commissie verslag moet doen van haar bevindingen. Het panel houdt rekening met het verslag van de Technische commissie. Indien de Technische commissie geen consensus kan bereiken over een vraagstuk dat haar overeenkomstig het bepaalde in dit lid werd voorgelegd, verdient het aanbeveling dat het panel de partijen bij het geschil in de gelegenheid stelt hun zienswijze daaromtrent aan het panel uiteen te zetten.

• 5 Aan het panel verstrekte vertrouwelijke informatie wordt niet openbaar gemaakt zonder de formele toestemming van de persoon, instantie of autoriteit die deze informatie heeft verstrekt. Wanneer het panel om dergelijke informatie wordt verzocht, doch de bekendmaking daarvan door het panel niet is toegestaan, wordt met toestemming van de persoon, instantie of autoriteit die de informatie heeft verstrekt een niet vertrouwelijke samenvatting daarvan vrijgegeven.

DEEL III. BIJZONDERE EN GEDIFFERENTIEERDE BEHANDELING

Artikel 20

• 1 De Leden die ontwikkelingslanden zijn en die geen Partij zijn bij de Overeenkomst inzake de toepassing van artikel VII van de Algemene Overeenkomst betreffende tarieven en handel van 12 april 1979 kunnen de toepassing van het bepaalde in de onderhavige Overeenkomst opschorten voor een periode van ten hoogste vijf jaar, te rekenen vanaf de datum waarop de WTO-Overeenkomst voor deze Leden in werking treedt. Leden die ontwikkelingslanden zijn en die de toepassing van deze Overeenkomst wensen op te schorten, stellen de Directeur-generaal van de WTO daarvan in kennis.

• 2 Naast het bepaalde in lid 1 kunnen Leden die ontwikkelingslanden zijn en die geen partij zijn bij de Overeenkomst inzake de toepassing van artikel VII van de Algemene Overeenkomst betreffende tarieven en handel van 12 april 1979, de toepassing van artikel 1, lid 2, onder b., punt iii. en van artikel 6 opschorten voor een periode van ten hoogste drie jaar, te rekenen vanaf het tijdstip waarop zij alle andere bepalingen van deze Overeenkomst ten uitvoer hebben gelegd. Leden die ontwikkelingslanden zijn en die besluiten de toepassing van de in dit lid genoemde bepalingen op te schorten, stellen de Directeur-Generaal van de WTO daarvan in kennis.

• 3 De Leden die ontwikkelde landen zijn verlenen op onderling overeengekomen voorwaarden technische bijstand aan de Leden die ontwikkelingslanden zijn en die daarom verzoeken. De Leden die ontwikkelde landen zijn stellen op deze basis programma's inzake technische bijstand op die voorzien in, onder meer, opleiding van personeel, hulp bij het uitwerken van toepassingsmaatregelen, toegang tot informatiebronnen inzake de methoden voor het vaststellen van de douanewaarde en advies betreffende de toepassing van deze Overeenkomst.

DEEL IV. SLOTBEPALINGEN

Artikel 21. Voorbehouden

Voorbehouden ten aanzien van de bepalingen van deze Overeenkomst kunnen uitsluitend met instemming van de andere Leden worden gemaakt.

Artikel 22. Nationale wetgeving

• 1 Elk Lid draagt zorg dat, uiterlijk op de datum waarop de bepalingen van deze Overeenkomst voor hem, van toepassing worden, zijn wetten, voorschriften en administratieve procedures in overeenstemming zijn met de bepalingen van deze Overeenkomst.

• 2 Elk Lid stelt de Commissie in kennis van alle wijzigingen in zijn wetten en voorschriften die betrekking hebben op deze Overeenkomst en van alle wijzigingen in verband met het beheer van deze wetten en voorschriften.

Artikel 23. Herziening

De Commissie stelt met inachtneming van de doelstellingen van de Overeenkomst jaarlijks een onderzoek in naar de toepassing en de werking daarvan. De Commissie doet de Raad voor de handel in goederen jaarlijks verslag van de ontwikkelingen welke zich hebben voorgedaan in de periode waarop het onderzoek betrekking had.

Artikel 24. Secretariaat

Het secretariaat van deze Overeenkomst wordt door het Secretariaat van de WTO waargenomen, behalve wat de specifiek aan de Technische Commissie opgedragen taken betreft, waarvoor het secretariaat door het Secretariaat van de IDR wordt waargenomen.

Bijlage I. TOELICHTING

Algemene aantekening

Volgorde waarin de diverse methoden voor het bepalen van de douanewaarde worden toegepast:

• 1. In de artikelen 1 tot en met 7 is bepaald op welke wijze in het kader van deze Overeenkomst de douanewaarde van ingevoerde goederen moet worden vastgesteld. De methoden van waardebepaling zijn vermeld in de volgorde waarin zij moeten worden toegepast. De eerste methode voor het bepalen van de douanewaarde is omschreven in artikel 1 en wanneer de daarin gestelde voorwaarden zijn vervuld, dient de waarde van de ingevoerde goederen overeenkomstig dit artikel te worden bepaald.

• 2. Indien de douanewaarde niet met toepassing van artikel 1 kan worden bepaald, worden achtereenvolgens de navolgende artikelen in beschouwing genomen tot het eerste artikel op basis waarvan de douanewaarde kan worden vastgesteld. Behoudens het bepaalde in artikel 4 kunnen de bepalingen van een navolgend artikel slechts toepassing vinden indien de douanewaarde niet overeenkomstig het onmiddellijk daaraan voorafgaande artikel kan worden vastgesteld.

• 3. Indien de importeur geen verzoek tot omkering van de volgorde van de artikelen 5 en 6 indient, wordt de normale volgorde aangehouden. Indien de importeur een dergelijk verzoek indient, doch de douanewaarde onmogelijk op grond van artikel 6 kan worden bepaald, dient zij overeenkomstig artikel 5 te worden vastgesteld, indien dit wel mogelijk is.

• 4. Wanneer de douanewaarde niet met toepassing van de artikelen 1 tot en met 6 kan worden vastgesteld, dient zij overeenkomstig artikel 7 te worden vastgesteld.

Toepassing van algemeen aanvaarde boekhoudkundige beginselen

• 1. Onder „algemeen aanvaarde boekhoudkundige beginselen” worden verstaan de boekhoudkundige beginselen waarvoor in een land op een bepaald tijdstip een algemene consensus of ruime gezaghebbende steun bestaat en die bepalen welke economische middelen en verplichtingen als activa en passiva moeten worden geboekt, welke wijzigingen in de activa en passiva dienen te worden geregistreerd, hoe de activa en passiva en de wijzigingen daarvan moeten worden gemeten, welke gegevens openbaar moeten worden gemaakt en hoe deze openbaarmaking dient te geschieden, alsmede welke financiële staten moeten worden opgemaakt. Deze normen kunnen zowel globale richtlijnen van algemene toepassing als gedetailleerde handelwijzen en procedures zijn.

• 2. Voor de toepassing van deze Overeenkomst maken de douanediensten van elk Lid gebruik van gegevens die zijn opgemaakt met inachtneming van de algemeen aanvaarde boekhoudkundige beginselen van het land dat volgens het betrokken artikel hiervoor in aanmerking komt. Zo zouden bijvoorbeeld voor het bepalen van de normale winstmarge en de algemene kosten overeenkomstig artikel 5 gegevens worden gebruikt die aan de algemeen aanvaarde boekhoudkundige beginselen van het land van invoer beantwoorden. Voor het vaststellen van de gebruikelijke winstmarge en de algemene kosten overeenkomstig artikel 6 zou daarentegen informatie worden gebruikt die beantwoordt aan de algemeen aanvaarde boekhoudkundige beginselen van het land waar de goederen zijn voortgebracht. Verder zal bijvoorbeeld voor de vaststelling van een in artikel 8, lid 1 onder b., punt i. bedoeld element in het land van invoer informatie worden gebruikt die aan de algemeen aanvaarde boekhoudkundige beginselen van dat land beantwoordt.

Aantekening bij artikel 1

Werkelijk betaalde of te betalen prijs

• 1. De werkelijk betaalde of te betalen prijs is de totale betaling die door de koper aan de verkoper of ten gunste van de verkoper voor de ingevoerde goederen is of moet worden gedaan. De betaling behoeft niet noodzakelijkerwijze in een overdracht van geld te bestaan. Zij kan eveneens door middel van kredietbrieven of verhandelbare stukken geschieden. De betaling kan rechtstreeks of onrechtstreeks geschieden. Een vorm van indirecte betaling zou bijvoorbeeld zijn het voldoen door de koper, geheel of ten dele, van een schuld van de verkoper.

• 2. Activiteiten die door de koper voor eigen rekening worden verricht, andere dan die waarvoor artikel 8 in een correctie voorziet, worden niet als een indirecte betaling aan de verkoper aangemerkt, zelfs niet indien deze activiteiten als een voordeel voor de koper kunnen worden aangemerkt. Voor het vaststellen van de douanewaarde worden de kosten van dergelijke activiteiten derhalve niet aan de werkelijk betaalde of te betalen prijs toegevoegd.

• 3. De hiernavolgende kosten worden niet tot de douanewaarde gerekend, mits zij niet in de voor de ingevoerde goederen werkelijk betaalde of te betalen prijs zijn begrepen:

  • a. kosten van constructiewerkzaamheden, installaties, montage, onderhoud of technische bijstand met betrekking tot de ingevoerde goederen die na de invoer zijn verricht, zoals fabrieken, machines of uitrusting;

  • b. de kosten van het vervoer na de invoer;

  • c. rechten en heffingen van het land van invoer.

• 4. De werkelijk betaalde of te betalen prijs is de prijs van de ingevoerde goederen. De overdracht van dividenden of andere betalingen van de koper aan de verkoper die geen verband houden met de ingevoerde goederen, behoren derhalve niet tot de douanewaarde.

Lid 1, onder a., punt iii.

Beperkingen die een werkelijke betaalde of te betalen prijs niet onaanvaardbaar maken, zijn onder meer beperkingen die de waarde van de goederen niet aanmerkelijk beïnvloeden. Bijvoorbeeld wanneer een verkoper van een koper van motorvoertuigen verlangt dat hij deze niet verkoopt of tentoonstelt voor een bepaalde datum die het begin is van een modeljaar.

Lid 1, onder b.

• 1. Indien de verkoop of de prijs afhankelijk is gesteld van enige voorwaarde of prestatie waarvoor met betrekking tot de goederen waarvan de douanewaarde wordt bepaald geen waarde kan worden vastgesteld, is de transactiewaarde niet aanvaardbaar voor douanedoeleinden. Voorbeelden hiervan zijn:

  • a. de verkoper verbindt aan de voor de ingevoerde goederen gevraagde prijs de voorwaarde dat de koper bovendien een bepaalde hoeveelheid andere goederen koopt;

  • b. de prijs van de ingevoerde goederen is afhankelijk gesteld van de prijs of prijzen waartegen de koper van de ingevoerde goederen andere goederen verkoopt aan de verkoper van de ingevoerde goederen;

  • c. de prijs wordt vastgesteld op basis van een wijze van betaling die geen verband houdt met de ingevoerde goederen. Bijvoorbeeld wanneer de ingevoerde goederen halffabricaten zijn die door de verkoper worden geleverd onder de voorwaarde dat hij een bepaalde hoeveelheid van de eindprodukten ontvangt.

• 2. Voorwaarden of prestaties die verband houden met de vervaardiging of de verkoop van de ingevoerde goederen vormen evenwel geen grond voor afwijzing van de transactiewaarde. Zo is bijvoorbeeld het feit dat de koper aan de verkoper „engineering of blauwdrukken” levert die in het land van invoer zijn verricht of gemaakt geen reden tot afwijzing van de transactiewaarde uit hoofde van artikel 1. Indien de koper voor eigen rekening activiteiten verricht die verband houden met de verkoop van de ingevoerde goederen, zelfs indien dit ingevolge een overeenkomst met de verkoper geschiedt, dan maakt de waarde van deze activiteiten evenmin deel uit van de douanewaarde en vormen deze activiteiten evenmin een reden tot afwijzing van de douanewaarde.

Lid 2

• 1. In lid 2, onder a. en lid 2, onder b. worden diverse criteria ter beoordeling van de aanvaardbaarheid van de transactiewaarde aangereikt.

• 2. In lid 2, onder a. is bepaald dat indien de koper en de verkoper verbonden zijn, de omstandigheden van de verkoop moeten worden onderzocht en de transactiewaarde als douanewaarde wordt aanvaard indien de verbondenheid de prijs niet heeft beïnvloed. Het is niet de bedoeling dat de omstandigheden worden onderzocht in alle gevallen waarin de koper en de verkoper verbonden zijn. Een dergelijk onderzoek is enkel vereist wanneer er twijfel bestaat over de aanvaardbaarheid van de prijs. Indien de douane geen twijfels heeft omtrent de aanvaardbaarheid van de prijs, wordt deze aanvaard zonder dat de importeur om aanvullende gegevens wordt verzocht. Het is bijvoorbeeld mogelijk dat de douane de verbondenheid eerder heeft onderzocht of over gedetailleerde gegevens betreffende de koper en verkoper beschikt en zij uit dit onderzoek of deze gegevens reeds heeft geconcludeerd dat de verbondenheid de prijs niet heeft beïnvloed.

• 3. Indien de douane de transactiewaarde niet zonder verder onderzoek kan aanvaarden, geeft zij de importeur de gelegenheid aanvullende gegevens te verstrekken, die zij nodig kan hebben om de omstandigheden van de verkoop te onderzoeken. In dit verband moet de douane, om te kunnen beoordelen of de verbondenheid de prijs heeft beïnvloed, bereid zijn de relevante aspecten van de transactie te onderzoeken, met inbegrip van de wijze waarop de koper en de verkoper hun handelsbetrekkingen organiseren en de wijze waarop de desbetreffende prijs tot stand is gekomen. Indien kan worden aangetoond dat de koper en de verkoper, hoewel verbonden in de zin van artikel 15, van elkaar kopen en aan elkaar verkopen alsof zij niet verbonden waren, dan mag worden aangenomen dat de verbondenheid de prijs niet heeft beïnvloed. Indien bijvoorbeeld de prijs volgens de normale prijsstellingsmethoden van de betrokken bedrijfstak tot stand is gekomen of volgens de methode die de verkoper voor het vaststellen van zijn prijzen ten aanzien van niet met hun verbonden verkopers hanteert, dan mag worden aangenomen dat de verbondenheid de prijs niet heeft beïnvloed. Zo mag bijvoorbeeld ook worden aangenomen dat de prijs niet is beïnvloed indien wordt aangetoond dat deze kostendekkend is en een winstmarge omvat die representatief is voor de globale winstmarge van de betrokken onderneming over een representatieve periode (bijvoorbeeld op jaarbasis) bij de verkoop van goederen van dezelfde categorie of soort.

• 4. Lid 2, onder b. biedt de importeur de mogelijkheid aan te tonen dat de transactiewaarde een eerder door de douane aanvaarde referentiewaarde zeer dicht benadert en dat de prijs derhalve aanvaardbaar is voor de toepassing van artikel 1. Wanneer aan één van de in lid 2, onder b. genoemde criteria is voldaan, behoeft de beïnvloeding van de prijs als bedoeld onder a. van dit lid niet meer te worden onderzocht. Indien de douane reeds over gegevens beschikt die voor haar voldoende zijn om zonder nader onderzoek te kunnen beoordelen of aan een van de in lid 2, onder b. bedoelde criteria is voldaan, heeft zij geen reden om van de importeur te eisen dat deze aantoont dat aan de criteria kan worden voldaan. Onder „niet verbonden kopers” worden in lid 2, onder b. verstaan kopers die in geen enkel geval met de verkoper verbonden zijn.

Lid 2, onder b.

Bij het beantwoorden van de vraag of een waarde een ander waarde zeer dicht benadert, moet een aantal factoren in aanmerking worden genomen, waaronder de aard van de ingevoerde goederen en van de betrokken bedrijfstak, het seizoen waarin de goederen worden ingevoerd en de vraag of het verschil tussen de onderscheidene waarden uit commercieel oogpunt significant is. Aangezien deze factoren van geval tot geval kunnen verschillen, is het onmogelijk in alle gevallen een eenvormige norm, zoals bijvoorbeeld een vast percentage, te hanteren. Zo kan bijvoorbeeld voor het beantwoorden van de vraag of de transactiewaarde de in artikel 1, lid 1, onder b. bedoelde referentiewaarden zeer dicht benadert een gering verschil in waarde voor een bepaald type goederen onaanvaardbaar zijn, terwijl bij een ander type goederen een groot verschil wel aanvaardbaar kan zijn.

Aantekening bij artikel 2

• 1. Voor de toepassing van artikel 2 baseert de douane zich zoveel mogelijk op een verkoop van identieke goederen die op hetzelfde handelsniveau en in wezenlijk dezelfde hoeveelheid heeft plaatsgevonden als die van de goederen waarvan de waarde wordt bepaald. Bij ontstentenis van een dergelijke verkoop kan de douane zich baseren op een verkoop van identieke goederen die plaatsvindt onder één van de volgende drie omstandigheden:

  • a. verkoop op hetzelfde handelsniveau maar in een andere hoeveelheid;

  • b. verkoop op een ander handelsniveau maar in wezenlijk dezelfde hoeveelheid; of

  • c. verkoop op een ander handelsniveau en in een andere hoeveelheid.

• 2. Indien een verkoop wordt gevonden die onder één van deze drie omstandigheden tot stand is gekomen, worden, al naar gelang van het geval, correcties toegepast voor:

  • a. uitsluitend de hoeveelheid;

  • b. uitsluitend het handelsniveau; of

  • c. zowel het handelsniveau als de hoeveelheid.

• 3. De woorden „en/of” bieden de mogelijkheid tot gebruikmaking, met de noodzakelijke correcties, van verkopen die in elk van de drie vorengenoemde omstandigheden hebben plaatsgevonden.

• 4. Voor de toepassing van artikel 2 wordt onder de transactiewaarde van ingevoerde identieke goederen verstaan een krachtens lid 1, onder b. en lid 2 van dit artikel aangepaste douanewaarde die reeds overeenkomstig artikel 1 is aanvaard.

• 5. Aanpassingen voor verschillen in handelsniveau of hoeveelheid, ongeacht of zij een verhoging dan wel een verlaging van de waarde ten gevolge hebben, worden afhankelijk gesteld van de voorwaarde dat zij uitsluitend gebaseerd zijn op bewijsmateriaal waaruit duidelijk blijkt dat de aanpassingen redelijk en exact zijn, bijvoorbeeld actuele prijslijsten van de voor de verschillende niveaus of hoeveelheden geldende prijzen. Het kan bijvoorbeeld voorkomen dat de ingevoerde goederen waarvan de waarde wordt bepaald een zending van 10 eenheden vormen en de enige ingevoerde identieke goederen waarvoor een transactiewaarde bestaat in een partij van 500 eenheden zijn verkocht. Indien in dergelijk geval bekend is dat de verkoper hoeveelheidskortingen geeft, kunnen op basis van de prijslijst van de verkoper de noodzakelijke aanpassingen worden verricht door de daarin vermelde prijs op een hoeveelheid van 10 éénheden toe te passen. Dit betekent niet dat reeds een verkoop in een hoeveelheid van 10 éénheden moet hebben plaatsgevonden, mits bij verkopen in andere hoeveelheden gebleken is dat de prijslijst bona fide was. Indien een dergelijke bona fide maatstaf niet voorhanden is, kan de douanewaarde niet overeenkomstig het bepaalde in artikel 2 worden vastgesteld.

Aantekening bij artikel 3

• 1. Voor de toepassing van artikel 3 baseert de douane zich zoveel mogelijk op een verkoop van soortgelijke goederen op hetzelfde handelsniveau en in vergelijkbare hoeveelheden als die van de goederen waarvan de waarde wordt bepaald. Bij ontstentenis van een dergelijke verkoop kan de douane zich baseren op een verkoop van soortgelijke goederen die plaatsvindt onder één van de volgende drie omstandigheden:

  • a. verkoop op hetzelfde handelsniveau maar in verschillende hoeveelheden;

  • b. verkoop op een verschillend handelsniveau maar in een vergelijkbare hoeveelheid;

  • c. verkoop op een verschillend handelsniveau en in verschillende hoeveelheden.

• 2. Indien een verkoop wordt gevonden die onder één van deze drie omstandigheden tot stand is gekomen, dan worden al naar gelang van het geval, de volgende correcties toegepast:

  • a. uitsluitend voor hoeveelheid;

  • b. uitsluitend voor handelsniveau;

  • c. zowel voor hoeveelheid als voor handelsniveau.

• 3. De woorden „en/of” bieden de mogelijkheid, onder voorbehoud van de noodzakelijke aanpassingen, gebruik te maken van verkopen die in elk van de drie vorengenoemde omstandigheden hebben plaatsgevonden.

• 4. Voor de toepassing van artikel 3 wordt onder transactiewaarde van ingevoerde soortgelijke goederen verstaan een overeenkomstig lid 1, onder b. en lid 2 gecorrigeerde douanewaarde die reeds is aanvaard uit hoofde van artikel 1.

• 5. Aan correcties voor verschillen in handelsniveau of hoeveelheid wordt, ongeacht of zij een verhoging dan wel een verlaging van de waarde ten gevolg hebben, de voorwaarde verbonden dat zij gebaseerd zijn op bewijsmateriaal waaruit blijkt dat zij redelijk en exact zijn, bijvoorbeeld actuele prijslijsten waarin de prijzen voor verschillende niveaus of hoeveelheden vermeld zijn. Het kan bijvoorbeeld voorkomen dat de ingevoerde goederen waarvan de waarde wordt bepaald een zending van 10 eenheden vormen en de enige ingevoerde identieke goederen waarvoor een transactiewaarde bestaat, in een zending van 500 eenheden zijn verkocht. Indien dan bekend is dat de verkoper hoeveel- heidskortingen geeft kunnen op basis van de prijslijst van de verkoper de noodzakelijke aanpassingen worden verricht door de daarin vermelde prijs op een verkoop van 10 eenheden toe te passen. Dit betekent niet dat de betrokken goederen reeds in een hoeveelheid van 10 eenheden moeten zijn verkocht, mits bij verkopen in andere hoeveelheden is vastgesteld dat de prijslijst bona fide is. Bij gebreke van een dergelijke objectieve maatstaf kan de douanewaarde niet overeenkomstig het bepaalde in artikel 3 worden vastgesteld.

Aantekening bij artikel 5

• 1. Onder „prijs per eenheid waartegen ..... goederen in de grootste totale hoeveelheid worden verkocht” wordt verstaan de prijs waartegen het grootste aantal eenheden, op het eerste handelsniveau na de invoer waarop dergelijke verkopen plaatsvinden, wordt verkocht aan personen die niet zijn verbonden met de personen van wie zij de goederen kopen.

• 2. Dit is bijvoorbeeld het geval wanneer de prijslijst in lagere prijzen per eenheid voor aankopen in grotere hoeveelheden voorziet.

  Verkochte hoeveelheid	Prijs per eenheid	Aantal verkopen	Totale hoeveelheid die tegen een bepaalde prijs wordt verkocht
  1–10 eenheden	100	10 verkopen van 5 eenheden	65
  		5 verkopen van 3 eenheden
  11–25 eenheden	95	5 verkopen van 11 eenheden	55
  meer dan 25 eenheden	90	1 verkoop van 30 eenheden	80
  		1 verkoop van 50 eenheden

  Het grootste aantal eenheden dat tegen een bepaalde prijs werd verkocht, is 80. Bijgevolg bedraagt de prijs per eenheid in de grootste totale hoeveelheid 90.

• 3. In het tweede voorbeeld gaat het om twee verkopen. Bij de eerste verkoop worden 500 eenheden verkocht tegen een prijs van 95 rekeneenheden per stuk. Bij de tweede verkoop worden 400 eenheden verkocht tegen een prijs van 90 rekeneenheden per stuk. In dit voorbeeld is het grootste aantal eenheden dat tegen een bepaalde prijs wordt verkocht 500. Bijgevolg bedraagt de prijs per eenheid in de grootste totale hoeveelheid 95.

• 4. In het derde voorbeeld worden uiteenlopende hoeveelheden verkocht tegen verschillende prijzen.

  a. Verkopen
  Verkochte hoeveelheid	Prijs per eenheid
  40 eenheden	100
  30 eenheden	90
  15 eenheden	100
  50 eenheden	95
  25 eenheden	105
  35 eenheden	90
  5 eenheden	100
  b. Totalen
  Totale verkochte hoeveelheid	Prijs per eenheid
  65	90
  50	95
  60	100
  25	105

  In dit voorbeeld bedraagt het grootste aantal eenheden dat tegen een bepaalde prijs is verkocht 65. De prijs per eenheid in de grootste totale hoeveelheid is derhalve 90.

• 5. Alle verkopen in het land van invoer, als omschreven onder punt 1, aan personen die kosteloos of tegen verlaagde prijs direct of indirect een of meer van de in artikel 8, lid 1, onder b. bedoelde elementen leveren ten behoeve van de vervaardiging en de verkoop voor uitvoer van ingevoerde goederen, worden voor de toepassing van artikel 5 niet in aanmerking genomen voor de vaststelling van de prijs per eenheid.

• 6. Opgemerkt zij dat de in artikel 5, lid 1 bedoelde „winst en algemene kosten” als één geheel moeten worden aangemerkt. Het uit dien hoofde in mindering te brengen bedrag wordt vastgesteld aan de hand van gegevens die door of namens de importeur zijn verstrekt, tenzij de cijfers van de importeur niet overeenstemmen met de gegevens die werden verkregen in verband met verkopen van ingevoerde goederen van dezelfde aard of hetzelfde karakter in het land van invoer. Indien de cijfers van de importeur niet met laatstbedoelde cijfers overeenstemmen kan het bedrag voor winst en algemene kosten worden vastgesteld aan de hand van andere relevante gegevens dan die welke door of namens de importeur zijn verstrekt.

• 7. De „algemene kosten” omvatten de directe en indirecte kosten van het op de markt brengen van de desbetreffende goederen.

• 8. De voor de verkoop van de goederen verschuldigde plaatselijke belastingen waarvoor geen aftrek ingevolge artikel 5, lid 1, onder a., punt iv., plaatsvindt, worden uit hoofde van artikel 5, lid 1, onder a., punt i. in mindering gebracht.

• 9. Bij de vaststelling, overeenkomstig het bepaalde in artikel 5, lid 1, van, hetzij de commissies, hetzij de gebruikelijke winst en algemene kosten, dient de vraag of het goederen van dezelfde aard of soort als andere goederen betreft, voor ieder geval afzonderlijk en met inachtneming van de omstandigheden te worden beantwoord. Er wordt een onderzoek ingesteld naar de verkopen in het land van invoer van een zo beperkt mogelijke groep of een zo beperkt mogelijk assortiment goederen van dezelfde categorie of soort als de goederen waarvan de waarde wordt bepaald en waarvoor de noodzakelijke informatie kan worden verstrekt. Voor de toepassing van artikel 5 worden onder goederen van „dezelfde aard of soort” verstaan goederen die uit hetzelfde land worden ingevoerd als de goederen waarvan de waarde wordt bepaald, evenals goederen die uit andere landen worden ingevoerd.

• 10. Voor de toepassing van artikel 5, lid 1, onder b. wordt onder „vroegste datum” verstaan de datum waarop de ingevoerde goederen dan wel ingevoerde identieke of soortgelijke goederen worden verkocht in een hoeveelheid die toereikend is om de prijs per eenheid vast te stellen.

• 11. Bij toepassing van de in artikel 5, lid 2 bedoelde methode wordt de aftrek voor de door de bewerking of verwerking toegevoegde waarde berekend aan de hand van objectieve en kwantificeerbare gegevens met betrekking tot de kosten van die werkzaamheden. De berekeningen worden uitgevoerd met behulp van erkende industriële formules, recepten, constructiemethoden en andere in de betrokken bedrijfstak gebruikelijke werkwijzen.

• 12. Aangenomen wordt dat de in artikel 5, lid 2 bedoelde methode van waardebepaling normaliter geen toepassing kan vinden wanneer de ingevoerde goederen ten gevolge van de bewerking of verwerking niet meer identificeerbaar zijn. Er kunnen zich evenwel gevallen voordoen waarin, hoewel de goederen niet meer identificeerbaar zijn, de door de bewerking of verwerking toegevoegde waarde op vrij eenvoudige wijze kan worden vastgesteld. Het is evenwel ook mogelijk dat de ingevoerde goederen weliswaar identificeerbaar blijven, doch een dermate onbelangrijk deel uitmaken van de in het land van invoer verkochte goederen dat het gebruik van deze methode van waardebepaling niet gerechtvaardigd zou zijn. In de bovenomschreven omstandigheden dient elk geval derhalve op zijn eigen merites te worden beoordeeld.

Aantekening bij artikel 6

• 1. In de regel wordt de douanewaarde in het kader van deze Overeenkomst vastgesteld op basis van gegevens die in het land van invoer direct beschikbaar zijn. Voor het vaststellen van een berekende waarde kan het evenwel noodzakelijk zijn zowel de produktiekosten van de goederen waarvan de waarde wordt bepaald als andere buiten het land van invoer in te winnen inlichtingen aan een onderzoek te onderwerpen. Daar komt nog bij dat de producent van de goederen meestal niet onder de jurisdictie van de autoriteiten van het land van invoer valt. De methode van de berekende waarde zal doorgaans enkel worden gebruikt in gevallen waarin de koper en de verkoper verbonden zijn en de producent van de goederen bereid is de autoriteiten van het land van invoer de nodige gegevens voor de kostprijsberekening mede te delen en een eventueel noodzakelijk nader onderzoek mogelijk te maken.

• 2. De in artikel 6, lid 1, onder a. bedoelde „kosten of waarde” dienen te worden vastgesteld op basis van door of namens de producent verstrekte gegevens in verband met de produktie van de goederen waarvan de waarde wordt bepaald. Deze gegevens zijn afkomstig uit de bedrijfsboekhouding van de producent, mits deze boekhouding in overeenstemming is met de algemeen aanvaarde boekhoudkundige beginselen van het land waar de goederen zijn voortgebracht.

• 3. In de „kosten of waarde” zijn de kosten van de in artikel 8, lid 1, onder a., punten ii. en iii. bedoelde elementen begrepen. Zij omvatten eveneens de waarde, toegedeeld overeenkomstig het bepaalde in de desbetreffende aantekening bij artikel 8, van elk in artikel 8, lid 1, onder b. omschreven element dat door de koper rechtstreeks of onrechtstreeks is geleverd voor gebruik bij de voortbrenging van de ingevoerde goederen. De waarde van de in artikel 8, lid 1, onder b., punt iv. bedoelde werkzaamheden die in het land van invoer worden verricht, wordt slechts in de kosten of de waarde begrepen voor zover zij de producent van de goederen in rekening wordt gebracht. De kosten of de waarde van de in dit lid bedoelde elementen mogen niet tweemaal in aanmerking worden genomen bij de vaststelling van de berekende waarde.

• 4. Het in artikel 6, lid 1, onder b. bedoelde „bedrag voor winst en algemene kosten” dient op basis van door of namens de producent verstrekte cijfers te worden vastgesteld, tenzij deze niet in overeenstemming zijn met die welke door de producenten in het land van uitvoer normaliter worden ingecalculeerd bij de verkoop van voor uitvoer naar het land van invoer bestemde goederen van dezelfde aard of soort als de goederen waarvan de waarde wordt bepaald.

• 5. Wat dit betreft zij opgemerkt dat het „bedrag voor winst en algemene kosten” als één geheel moet worden beschouwd. Hieruit volgt dat, indien in een bepaald geval de winst van een producent laag is en zijn algemene kosten hoog, de winst en de algemene kosten van deze producent, tezamen genomen, niettemin in overeenstemming kunnen zijn met die welke gewoonlijk worden ingecalculeerd bij de verkoop van goederen van dezelfde aard of soort. Een dergelijke situatie kan zich bijvoorbeeld voordoen wanneer een produkt voor het eerst in het land van invoer op de markt wordt gebracht en de producent bereid is zonder winst te verkopen of genoegen neemt met een lage winstmarge als tegenwicht voor de aan de introductie van het produkt verbonden algemene kosten. Indien de producent kan aantonen dat hij als gevolg van bijzonder handelsomstandigheden een lage winst maakt bij de verkoop van de ingevoerde goederen, dient het bedrag van zijn werkelijke winst in aanmerking te worden genomen mits hij dit met redelijke commerciële argumenten kan onderbouwen en zijn prijsstellingsmethode de gebruikelijke wijze van prijsstelling in de desbetreffende tak van industrie weerspiegelt. Dit is bijvoorbeeld het geval wanneer producenten gedwongen worden hun prijzen tijdelijk te verlagen wegens een niet te voorspellen inkrimping van de vraag of wanneer zij goederen verkopen ter aanvulling van een in het land van invoer vervaardigd assortiment en zij ter handhaving van hun concurrentiepositie genoegen nemen met een lagere winst. Indien de door de producent zelf verstrekte cijfers voor winst en algemene kosten niet in overeenstemming zijn met die welke normaliter door de producenten in het land van uitvoer worden ingecalculeerd bij de verkoop van voor uitvoer naar het land van invoer bestemde goederen van dezelfde aard of soort als de goederen waarvan de waarde wordt bepaald, dan kan het bedrag voor winst en algemene kosten worden vastgesteld aan de hand van andere relevante informatie dan die welke door of namens de producent van de goederen is verstrekt.

• 6. Indien voor de vaststelling van een berekende waarde andere dan de door of namens de producent van de goederen verstrekte inlichtingen worden gebruikt, doen de autoriteiten van het land van invoer de importeur op diens verzoek mededeling van de herkomst van deze inlichtingen en van de gebruikte gegevens en de daarop gebaseerde berekeningen, onverminderd het bepaalde in artikel 10.

• 7. De in artikel 6, lid 1, onder b. bedoelde „algemene kosten” omvatten de directe en de indirecte kosten van de voortbrenging en de verkoop voor uitvoer van de goederen die niet zijn inbegrepen uit hoofde van artikel 6, lid 1, onder a..

• 8. De vraag of bepaalde goederen van „dezelfde aard of soort” zijn als andere goederen dient geval per geval en met inachtneming van de omstandigheden te worden beantwoord. Voor het vaststellen van de gebruikelijke winst en algemene kosten ingevolge de bepalingen van artikel 6 worden de verkopen onderzocht van een zo beperkt mogelijke groep of assortiment van voor uitvoer naar het land van invoer bestemde goederen waarvoor de noodzakelijke inlichtingen kunnen worden verstrekt en waartoe de goederen behoren waarvan de waarde wordt bepaald. Voor de toepassing van artikel 6 dienen de goederen van dezelfde aard of soort uit hetzelfde land herkomstig te zijn als de goederen waarvan de waarde wordt bepaald.

Aantekening bij artikel 7

• 1. Douanewaarden die krachtens het bepaalde in artikel 7 worden vastgesteld, dienen zoveel mogelijk op vooraf vastgestelde douanewaarden te worden gebaseerd.

• 2. De krachtens artikel 7 toe te passen methoden voor het bepalen van de waarde zijn die van de artikelen 1 tot en met 6, hoewel het met het oog op de doelstellingen en bepalingen van artikel 7 aanbeveling verdient een redelijke soepelheid in acht te nemen bij de toepassing van deze methoden.

• 3. Hierna volgen enige voorbeelden van hetgeen onder „redelijke soepelheid” dient te worden verstaan:

  • a. Identieke goederen: de eis dat identieke goederen op hetzelfde of nagenoeg hetzelfde tijdstip worden uitgevoerd als de goederen waarvan de waarde wordt bepaald, kan ruim worden geïnterpreteerd; de douanewaarde kan worden vastgesteld aan de hand van ingevoerde identieke goederen die zijn voortgebracht in een ander land dan het land van uitvoer van de goederen waarvan de waarde wordt bepaald; er kan gebruik worden gemaakt van de douanewaarde van ingevoerde identieke goederen die reeds krachtens het bepaalde in de artikelen 5 en 6 is vastgesteld.

  • b. Soortgelijke goederen: de eis dat de soortgelijke goederen op hetzelfde of nagenoeg hetzelfde tijdstip worden uitgevoerd als de goederen waarvan de waarde wordt bepaald, kan flexibel worden uitgelegd; de douanewaarde kan worden vastgesteld aan de hand van ingevoerde soortgelijke goederen die zijn voortgebracht in een ander land dan het land van uitvoer van de goederen waarvan de waarde wordt bepaald; er zou gebruik kunnen worden gemaakt van de douanewaarde van ingevoerde soortgelijke goederen die reeds krachtens het bepaalde in de artikelen 5 en 6 is vastgesteld.

  • c. Deductieve methode: de in artikel 5, lid 1, onder a. geformuleerde eis dat de goederen zijn verkocht „in de staat waarin zij zijn ingevoerd” kan soepel worden geïnterpreteerd en de eis van de 90 dagen kan op flexibele wijze worden toegepast.

Aantekening bij artikel 8

Lid 1, onder a., punt i.

Onder „inkoopcommissies” worden verstaan de vergoedingen die een importeur aan zijn agent betaalt om hem in het buitenland te vertegenwoordigen bij de aankoop van de goederen waarvan de waarde wordt bepaald.

Lid 1, onder b., punt ii.

• 1. Bij het omslaan van de in artikel 8, lid 1, onder b., punt ii. bedoelde elementen over de ingevoerde goederen dient rekening te worden gehouden met twee factoren, namelijk de waarde van het element zelf en de wijze waarop deze waarde over de ingevoerde goederen moet worden omgeslagen. De omslag van deze elementen geschiedt op een redelijke, aan de omstandigheden aangepaste wijze en met inachtneming van de algemeen aanvaarde boekhoudkundige beginselen.

• 2. Wat de waarde van het element betreft, zij opgemerkt dat indien de importeur het element tegen een bepaalde kostprijs verkrijgt van een verkoper die niet met hem is verbonden, deze kostprijs de waarde van het element vormt. Indien dit element door de importeur of een met hem verbonden persoon werd geproduceerd, is de waarde ervan gelijk aan de produktiekosten. Indien het element eerder door de importeur werd gebruikt, ongeacht of het door hem werd verkregen of vervaardigd, dienen de oorspronkelijke kosten van de verwerving of de produktie ervan naar beneden te worden aangepast om dit gebruik tot uitdrukking te brengen en aldus de waarde van dit element te bepalen.

• 3. Eenmaal de waarde van de elementen vastgesteld dient deze over de ingevoerde goederen te worden omgeslagen. Hiervoor bestaan verschillende methoden. De waarde kan bijvoorbeeld aan de eerste zending worden toegerekend indien de importeur het invoerrecht over de totale waarde in één keer wenst te betalen. Ook is het mogelijk dat de importeur de wens te kennen geeft dat de waarde wordt omgeslagen over het aantal eenheden dat tot het tijdstip van de eerste zending is vervaardigd. Hij kan ook vragen dat de waarde over de gehele geraamde produktie wordt omgeslagen, indien voor die produktie kontrakten of definitieve verbintenissen bestaan. De wijze van toerekening wordt met inachtneming van de door de importeur verstrekte gegevens vastgesteld.

• 4. Het hiernavolgende voorbeeld illustreert de bovenomschreven situatie: een importeur levert aan de producent van de goederen een matrijs die bij de vervaardiging van de in te voeren goederen zal worden gebruikt. Hij verbindt zich ertoe 10.000 eenheden van het produkt te kopen. Bij aankomst van de eerste zending van 1.000 eenheden heeft de producent reeds 4.000 eenheden vervaardigd. De importeur kan de douane dan verzoeken de waarde van de matrijs over 1.000, 4.000 of 10.000 eenheden om te slaan.

Lid 1, onder b., punt iv.

• 1. De voor de in artikel 8, lid 1, onder b., punt iv. genoemde elementen toe te voegen waarden moeten op objectieve en meetbare gegevens gebaseerd zijn. Ten einde de taak, wat de vaststelling van de toe te voegen waarden betreft, van zowel de importeur als de douane tot een minimum te beperken, wordt zoveel mogelijk gebruik gemaakt van gegevens uit de handelsboekhouding van de koper.

• 2. Voor de door de koper ter beschikking gestelde elementen die hij zelf gekocht of gehuurd heeft, worden de kosten van aankoop of huur bijgevoegd. Behalve wat de kosten van het kopiëren betreft, wordt voor elementen die tot het publieke domein behoren geen waarde toegevoegd.

• 3. De toe te voegen waarden zijn eenvoudiger of minder eenvoudig te berekenen al naar gelang van de structuur van de betrokken onderneming, haar managementcultuur en boekhoudmethoden.

• 4. Het kan bijvoorbeeld voorkomen dat een onderneming die verschillende soorten produkten uit diverse landen invoert, voor haar buiten het land van invoer gelegen ontwerpcentrum een boekhouding voert die de aan een bepaald produkt toe te rekenen kosten nauwkeurig aangeeft. In dergelijke gevallen is een directe aanpassing in de zin van artikel 8 verantwoord.

• 5. Een onderneming kan de kosten van het buiten het land van invoer gelegen ontwerpcentrum echter ook boeken als algemene kosten die niet over bepaalde produkten worden omgeslagen. In dergelijk geval zou ten aanzien van de ingevoerde goederen een passende correctie in de zin van artikel 8 kunnen plaatsvinden door de totale kosten van het designcentrum om te slaan over de totale produktie waarop de diensten van het centrum betrekking hebben en de aldus omgeslagen kosten toe te voegen aan de waarde per eenheid van de ingevoerde goederen.

• 6. Ingeval van wijzigingen in de vorengenoemde omstandigheden zullen voor het vaststellen van de juiste omslagmethode uiteraard andere criteria moeten worden gehanteerd.

• 7. Wanneer bij de vervaardiging van het betrokken element diverse landen betrokken zijn en deze fabricage een bepaalde tijdsduur in beslag neemt, blijft de correctie beperkt tot de waarde die buiten het land van invoer daadwerkelijk aan dit element is toegevoegd.

Lid 1, onder c.

• 1. De in artikel 8, lid 1, onder c. bedoelde royalties en licentierechten omvatten, onder meer, betalingen uit hoofde van octrooien, fabrieks- of handelsmerken en auteursrechten. Bij de vaststelling van de douanewaarde worden de voor het recht tot reproduktie van de ingevoerde goederen in het land van invoer betaalde bedragen evenwel niet aan de werkelijk voor de goederen betaalde of te betalen prijs toegevoegd.

• 2. Betalingen door de koper voor het recht tot distributie of wederverkoop van de ingevoerde goederen worden niet aan de werkelijk voor de ingevoerde goederen betaalde of te betalen prijs toegevoegd indien dergelijke betalingen geen deel uitmaken van de voorwaarden voor de verkoop voor uitvoer naar het land van invoer van de ingevoerde goederen.

Lid 3

De transactiewaarde kan niet met toepassing van artikel 1 worden vastgesteld indien voor de toevoegingen uit hoofde van artikel 8 geen objectieve en kwantificeerbare gegevens beschikbaar zijn. Ter illustratie hiervan het volgende voorbeeld: er wordt een royalty betaald op basis van de prijs bij verkoop in het land van invoer van één liter van een bepaald produkt dat per kg werd ingevoerd en dat na de invoer aan een oplossing wordt toegevoegd. Indien de royalty ten dele gebaseerd is op de ingevoerde goederen en ten dele op andere factoren die geen enkel verband houden met de ingevoerde goederen (bijvoorbeeld wanneer ingevoerde goederen met binnenlandse bestanddelen worden vermengd en zij niet langer als zodanig kunnen worden geïdentificeerd of wanneer de royalty niet van bepaalde bijzondere financiële regelingen tussen de koper en de verkoper kan worden onderscheiden), zou een toevoeging voor royalties niet correct zijn. Indien het bedrag van de royalty evenwel uitsluitend op de ingevoerde goederen gebaseerd is en zich op eenvoudige wijze laat kwantificeren kan de werkelijk betaalde of te betalen prijs dienovereenkomstig worden verhoogd.

Aantekening bij artikel 9

Voor de toepassing van artikel 9 kan onder „tijdstip van invoer” mede het tijdstip van de douane-aangifte worden verstaan.

Aantekening bij artikel 11

• 1. Artikel 11 geeft de importeur het recht beroep aan te tekenen tegen de door de douane vastgestelde douanewaarde. In een eerste stadium kan beroep worden ingesteld bij een hogere autoriteit binnen de douanedienst, hoewel de importeur het recht heeft vervolgens beroep aan te tekenen bij een rechterlijke instantie.

• 2. „Zonder sanctie” betekent dat de importeur, op grond van het enkele feit dat hij zijn recht op beroep doet gelden, geen boete kan worden opgelegd, noch daarmee kan worden bedreigd. Normale proceskosten en honoraria van advokaten worden niet als boetes aangemerkt.

• 3. Geen enkele bepaling van artikel 11 vormt voor een partij evenwel een beletsel de volledige betaling van de vastgestelde invoerrechten te eisen voordat het beroep wordt aangetekend.

Aantekening bij artikel 15

Lid 4

Voor de toepassing van dit artikel worden onder „personen”, in voorkomend geval, eveneens rechtspersonen verstaan.

Lid 4, onder e.

Voor de toepassing van deze Overeenkomst wordt een persoon geacht zeggenschap te hebben over een andere persoon indien de eerstgenoemde persoon, hetzij rechtens, hetzij feitelijk, de laatstgenoemde persoon beperkingen kan opleggen of instructies kan geven.

Bijlage II. TECHNISCHE COMMISSIE DOUANEWAARDE

• 1. Overeenkomstig artikel 18 van deze Overeenkomst wordt onder auspiciën van de Internationale Douaneraad een Technische commissie opgericht die zorg draagt dat de Overeenkomst uit technisch oogpunt op uniforme wijze wordt geïnterpreteerd en toegepast.

• 2. De Technische commissie heeft tot taak:

  • a. specifieke technische problemen te onderzoeken die zich voordoen bij de dagelijkse toepassing van de door de partijen gehanteerde methoden voor het bepalen van de douanewaarde en op basis van het naar voren gebrachte feitenmateriaal advies te geven omtrent mogelijke oplossingen;

  • b. op daartoe strekkend verzoek de met deze Overeenkomst verband houdende wettelijke regelingen, procedures en praktijken op het gebied van de waardebepaling te onderzoeken en verslagen over de resultaten van deze onderzoeken voor te bereiden;

  • c. jaarlijkse verslagen inzake de technische aspecten van de werking en de status van deze Overeenkomst voor te bereiden en te distribueren;

  • d. inlichtingen en adviezen in verband met de vaststelling van de douanewaarde van ingevoerde goederen te verstrekken die door een Lid of door de Commissie kunnen worden gevraagd. Dergelijke inlichtingen en adviezen kunnen de vorm hebben van raadgevingen, commentaar of toelichtingen;

  • e. desgevraagd maatregelen te nemen om het verlenen van technische bijstand aan de Leden te vereenvoudigen met het doel de internationale aanvaarding van deze Overeenkomst te bevorderen; en

  • f. de vraagstukken te onderzoeken die haar overeenkomstig artikel 19 van deze Overeenkomst door een Panel kunnen worden voorgelegd;

  • g. alle andere werkzaamheden uit te voeren waarmee de Commissie haar kan belasten.

Algemeen

• 3. Het streven van de Technische commissie is er op gericht haar werkzaamheden op bepaalde specifieke terreinen, in het bijzonder wanneer deze door de Leden, de Commissie of een Panel zijn opgedragen, binnen een redelijke termijn te voltooien. Een Panel stelt overeenkomstig het bepaalde in artikel 19, lid 4 een termijn vast voor de ontvangst van een verslag van de Technische commissie en deze legt haar verslag binnen deze termijn voor.

• 4. De Technische commissie wordt indien nodig in haar werkzaamheden bijgestaan door het Secretariaat van de Internationale Douaneraad.

Vertegenwoordiging

• 5. Elk Lid heeft het recht vertegenwoordigd te zijn in de Technische commissie. Elk Lid kan één afgevaardigde en één of meer plaatsvervangers als zijn vertegenwoordigers in de Technische commissie aanwijzen. Een aldus in de Technische commissie vertegenwoordigd Lid wordt hierna als „lid van de Technische commissie” aangeduid. Vertegenwoordigers van leden van de Technische commissie kunnen worden bijgestaan door adviseurs. Het Secretariaat van de WTO kan dergelijke vergaderingen eveneens als waarnemer bijwonen.

• 6. Leden van de Internationale Douaneraad die geen lid zijn van de WTO kunnen zich op vergaderingen van de Technische commissie door een afgevaardigde en een of meer plaatsvervangers laten vertegenwoordigen. Deze vertegenwoordigers wonen de vergaderingen van de Technische commissie als waarnemers bij.

• 7. Onder voorbehoud van goedkeuring door de Voorzitter van de Technische commissie kan de Secretaris-generaal van de Internationale Douaneraad (hierna de „Secretaris-generaal” genoemd) vertegenwoordigers van entiteiten die noch lid van de WTO noch lid van de Internationale Douaneraad zijn, evenals vertegenwoordigers van internationale gouvernementele organisaties en handelsorganisaties uitnodigen de vergaderingen van de Technische commissie als waarnemer bij te wonen.

• 8. De namen van de afgevaardigden, plaatsvervangers en adviseurs die zijn aangewezen om de vergaderingen van de Technische commissie bij te wonen, worden de Secretaris-generaal ter kennis gebracht.

Vergaderingen van de Technische commissie

• 9. De Technische commissie vergadert zo dikwijls als noodzakelijk is doch minstens tweemaal per jaar. De datum van elke vergadering wordt door de Technische commissie op haar voorafgaande vergadering vastgesteld. De datum van de vergadering kan worden gewijzigd, hetzij op verzoek van een lid van de Technische commissie, ondersteund door een eenvoudige meerderheid van de leden van de Technische commissie, hetzij, in dringende gevallen, op verzoek van de Voorzitter. In afwijking van het bepaalde in de eerste zin van dit lid vergadert de Technische commissie zo dikwijls als noodzakelijk is over zaken die haar overeenkomstig artikel 19 van deze Overeenkomst door een Panel worden voorgelegd.

• 10. De vergaderingen van de Technische commissie vinden plaats ten kantore van de Internationale Douaneraad, tenzij hieromtrent anders wordt beslist.

• 11. Behalve in dringende gevallen doet de Secretaris-Generaal alle leden van de Technische commissie en die bedoeld in de leden 6 en 7 ten minste 30 dagen van tevoren mededeling van de aanvangsdatum van elke vergadering van de Technische commissie.

Agenda

• 12. Behalve in dringende gevallen stelt de Secretaris-Generaal ten minste 30 dagen voor de vergadering een voorlopige agenda van iedere zitting vast die aan de leden van de Technische commissie en aan de in lid 6 en lid 7 bedoelde leden wordt toegezonden. Deze agenda omvat de punten waarvan de Technische commissie de opneming tijdens haar voorafgaande zitting heeft goedgekeurd, de punten die de Voorzitter op eigen initiatief heeft opgenomen en die welke op verzoek van de Secretaris-generaal, de commissie of een lid van de Technische commissie zijn opgenomen.

• 13. Bij de opening van elke vergadering stelt de Technische commissie haar agenda vast. Tijdens de vergadering kan de agenda te allen tijde door de Technische commissie worden gewijzigd.

Samenstelling van het bureau en reglement van orde

• 14. De Technische commissie kiest uit de afgevaardigden van haar leden een Voorzitter en één of meer Vice-Voorzitters. De Voorzitter en de Vice-Voorzitters hebben zitting gedurende een periode van één jaar. De aftredende Voorzitter en Vice-Voorzitters zijn herkiesbaar. Een Voorzitter of Vice-Voorzitters die ophoudt een lid van de Technische commissie te vertegenwoordigen, verliest automatisch zijn mandaat.

• 15. Indien de Voorzitter op een vergadering of een gedeelte daarvan niet aanwezig is, wordt het voorzitterschap door een Vice-Voorzitter waargenomen. In dit geval heeft de Vice-Voorzitter dezelfde bevoegdheden en plichten als de Voorzitter.

• 16. De Voorzitter van de vergadering neemt in die hoedanigheid aan de werkzaamheden van de Technische commissie deel en niet als vertegenwoordiger van een lid van de Technische commissie.

• 17. Naast de andere bevoegdheden die hem uit hoofde van dit Reglement worden verleend, heeft de Voorzitter tot taak iedere vergadering te openen en te sluiten, leiding te geven aan de gedachtenwisselingen, de aanwezigen het woord te geven en overeenkomstig het bepaalde in dit Reglement zorg te dragen voor het ordelijke verloop van de werkzaamheden. Voorts kan de Voorzitter een spreker tot de orde roepen wanneer diens opmerkingen niet relevant zijn.

• 18. Bij de bespreking van elk onderwerp kan een delegatie een motie van orde stellen. In dat geval neemt de Voorzitter onmiddellijk een beslissing. Indien deze beslissing wordt aangevochten, legt de Voorzitter haar ter bespreking aan de vergadering voor. De beslissing wordt gehandhaafd, tenzij zij wordt afgestemd.

• 19. De Secretaris-Generaal of de door hem aangewezen functionarissen van het Secretariaat van de IDR verrichten de met de vergaderingen van de Technische commissie gepaard gaande secretariaatswerkzaamheden.

Quorum en stemming

• 20. Het quorum wordt gevormd door vertegenwoordigers van een eenvoudige meerderheid van de leden van de Technische commissie.

• 21. Ieder lid van de Technische commissie beschikt over een stem. Besluiten van de Technische commissie worden genomen met een meerderheid van ten minste twee derde van de aanwezige leden. Ongeacht het resultaat van de stemming over een bepaald onderwerp, is de Technische commissie vrij de commissie en de Internationale Douaneraad een volledig verslag te doen toekomen van de verschillende standpunten die bij de bespreking van het betreffende onderwerp naar voren zijn gebracht. In afwijking van de voorafgaande bepalingen van dit lid neemt de Technische commissie haar beslissingen ten aanzien van de door een Panel voorgelegde vraagstukken bij consensus. Wanneer de Technische commissie geen overeenstemming bereikt over een door een Panel voorgelegd probleem legt zij een verslag voor waarin de zaak in bijzonderheden wordt uiteengezet en de standpunten van de leden worden toegelicht.

Talen en documenten

• 22. De officiële talen van de Technische commissie zijn het Engels, het Frans en het Spaans. Toespraken of verklaringen in één van deze drie talen worden onmiddellijk in de andere officiële talen vertaald, tenzij alle delegaties ermee instemmen dat geen vertaling wordt gemaakt. Toespraken of verklaringen in enige andere taal worden, onder dezelfde voorwaarden, vertaald in het Engels, het Frans en het Spaans, met dien verstande dat de betrokken delegatie in dit geval voor de vertaling in het Engels, het Frans en het Spaans zorgt. Officiële documenten van de Technische commissie worden uitsluitend in het Engels, het Frans en het Spaans gesteld. Door de Technische commissie te behandelen nota's en brieven moeten in een van de officële talen worden voorgelegd.

• 23. De Technische commissie stelt een verslag op van al haar zittingen alsmede, indien de Voorzitter dit noodzakelijk acht, notulen of beknopte samenvattingen van haar vergaderingen. De Voorzitter of een door hem aangewezen persoon doet op elke vergadering van de commissie en van de Internationale Douaneraad verslag van de werkzaamheden van de Technische commissie.

Bijlage III

• 1. De in artikel 20, lid 1 bedoelde termijn van vijf jaar waarmee Leden die ontwikkelingslanden zijn de toepassing van de Overeenkomst kunnen uitstellen, kan in de praktijk voor sommige van deze Leden ontoereikend zijn. In dergelijke gevallen kan een Lid dat een ontwikkelingsland is voor het verstrijken van de in artikel 20, lid 1 bedoelde termijn, om verlenging daarvan verzoeken. De Leden nemen een dergelijk verzoek in welwillende overweging wanneer het betrokken Lid dit verzoek naar behoren kan motiveren.

• 2. Ontwikkelingslanden die voor het bepalen van de douanewaarde momenteel van ambtswege vastgestelde minimumwaarden hanteren, zullen mogelijkerwijze een voorbehoud willen maken om dergelijke methoden van waardebepaling gedurende een overgangsperiode op beperkte schaal te handhaven onder de voorwaarden die door de Leden worden overeengekomen.

• 3. Ontwikkelingslanden die van oordeel zijn dat de mogelijkheid tot omkering van de volgorde op verzoek van de importeur, waarin artikel 4 van de Overeenkomst voorziet, problemen kan doen rijzen, zullen ten aanzien van dit artikel mogelijkerwijze een voorbehoud willen maken dat als volgt luidt:

  „De autoriteiten van .... behouden zich het recht voor te bepalen dat de desbetreffende bepaling van artikel 4 van de Overeenkomst uitsluitend van toepassing is wanneer de douane-instanties het verzoek tot omkering van de volgorde van de artikelen 5 en 6 inwilligen”.

  Wanneer ontwikkelingslanden een dergelijk voorbehoud maken, wordt dit door de Leden op grond van artikel 21 van de Overeenkomst aanvaard.

• 4. Ontwikkelingslanden zullen ten aanzien van het bepaalde in artikel 5, lid 2 van de Overeenkomst mogelijkerwijze het volgende voorbehoud willen maken:

  „De autoriteiten van .... behouden zich het recht voor te bepalen dat artikel 5, lid 2 van de Overeenkomst wordt toegepast met inachtneming van de desbetreffende aantekening, ongeacht of de importeur daarom verzoekt”.

  Indien ontwikkelingslanden een dergelijk voorbehoud maken, wordt dit door de Leden op grond van artikel 21 van de Overeenkomst aanvaard.

• 5. Bepaalde ontwikkelingslanden kunnen problemen ontmoeten bij de toepassing van artikel 1 van de Overeenkomst wat de invoer in hun land door exclusieve agenten, exclusieve distributeurs en exclusieve concessiehouders betreft. Indien dergelijke problemen zich in de praktijk voordoen bij de toepassing van de Overeenkomst door Leden die ontwikkelingslanden zijn, wordt het vraagstuk op verzoek van deze Leden aan een onderzoek onderworpen ten einde hiervoor een passende oplossing te vinden.

• 6. In artikel 17 wordt erkend dat de douanediensten het voor de toepassing van de Overeenkomst noodzakelijk kunnen achten een onderzoek in te stellen naar de echtheid of de juistheid van met het oog op de vaststelling van de douanewaarde voorgelegde verklaringen, documenten of aangiften. Ingevolge dit artikel kan derhalve een onderzoek worden ingesteld met het doel, bij voorbeeld, na te gaan of de elementen die de douane ten behoeve van de vaststelling van de douanewaarde worden aangereikt volledig en juist zijn. Onverminderd hun nationale wetgeving en procedures kunnen de Leden van de importeurs verlangen dat zij hun volledige medewerking verlenen aan deze onderzoeken.

• 7. De werkelijk betaalde of te betalen prijs omvat alle daadwerkelijk verrichte of te verrichten betalingen, hetzij door de koper aan de verkoper, hetzij door de koper aan een derde partij ter voldoening van een verplichting van de verkoper, die een voorwaarde vormen voor de verkoop van de ingevoerde goederen.

Overeenkomst inzake inspectie voor verzending

De Leden,

Vaststellende dat de Ministers op 20 september 1986 zijn overeengekomen dat de „Multilaterale handelsbesprekingen in het kader van de Uruguay-Ronde ten doel hebben een verdere liberalisering en uitbreiding van de wereldhandel te bewerkstelligen”, „de rol van de GATT te versterken” en „het vermogen van het GATT-stelsel om zich aan te passen aan de ontwikkeling van het internationale economische milieu te vergroten”;

Vaststellende dat een aantal Leden die ontwikkelingslanden zijn gebruik maken van de regeling inzake inspectie voor verzending;

Erkennende dat de ontwikkelingslanden dit moeten doen zolang en voor zover dit nodig is om de kwaliteit, kwantiteit of prijs van ingevoerde goederen te controleren;

Zich ervan bewust dat dergelijke programma's moeten worden uitgevoerd zonder aanleiding te geven tot onnodige vertraging of ongelijke behandeling;

Vaststellende dat deze inspectie per definitie wordt uitgevoerd op het grondgebied van exporterende Leden;

Erkennende dat een overeengekomen internationaal kader van de rechten en verplichtingen van de Leden die de regeling toepassen en van de exporterende Leden tot stand moet worden gebracht;

Erkennende dat de beginselen en verplichtingen van de GATT 1994 van toepassing zijn op die activiteiten van de met inspectie voor verzending belaste instanties waartoe opdracht is gegeven door de regeringen die Lid zijn van de WTO;

Erkennende dat het wenselijk is te zorgen voor een doorzichtige werking van de met inspectie vóór verzending belaste instanties en van de wetten en regelingen met betrekking tot de inspectie vóór verzending;

Geleid door de wens om te komen tot snelle, doeltreffende en rechtvaardige beslechting van geschillen tussen exporteurs en met inspectie vóór verzending belaste instanties die zich in het kader van deze overeenkomst voordoen;

Zijn het volgende overeengekomen:

Artikel 1. Toepassingsgebied – Definities

• 1 Deze Overeenkomst is van toepassing op alle inspecties vóór verzending uitgevoerd op het grondgebied van Leden, ongeacht het feit of voor dergelijke inspecties een contract wordt gesloten dan wel opdracht daartoe wordt gegeven door de regering of enige overheidsinstelling van een Lid.

• 2 Onder „Lid dat de regeling toepast” wordt verstaan een Lid waarvan de regering of enige overheidsinstelling contracten sluit voor of opdracht geeft tot het gebruik van de regeling inzake inspectie vóór verzending.

• 3 De inspectie vóór verzending omvat alle activiteiten die verband houden met de controle van de kwaliteit, kwantiteit, prijs, inclusief wisselkoersen en financiële voorwaarden, en/of de tariefindeling van de goederen die naar het grondgebied van het Lid dat de regeling toepast worden geëxporteerd.

• 4 Onder „met inspectie vóór verzending belaste instantie” wordt verstaan elke instantie waarmee een Lid een contract heeft gesloten voor of waaraan het opdracht heeft gegeven tot het uitvoeren van de inspectie vóór verzending260.

Artikel 2. Verplichtingen van de Leden die de regeling toepassen

Non-discriminatie

• 1 De Leden die de regeling toepassen zorgen ervoor dat de inspecties vóór verzending op niet-discriminerende wijze worden uitgevoerd en dat de procedures en criteria voor het uitvoeren van die inspecties objectief zijn en gelijkelijk op alle door dergelijke inspecties getroffen exporteurs worden toegepast. Zij zien erop toe dat de door alle inspecteurs van de met inspectie vóór verzending belaste instanties, waarmee zij een contract hebben gesloten of waaraan zij een opdracht hebben gegeven, uitgevoerde inspecties uniform zijn.

Overheidsvoorschriften

• 2 De Leden die de regeling toepassen zorgen ervoor dat tijdens de inspecties vóór verzending die verband houden met hun wetten, regelingen en voorschriften de bepalingen van artikel III, lid 4, van de GATT 1994 worden nagekomen voor zoverre zij ter zake dienend zijn.

Plaats van inspectie

• 3 De Leden die de regeling toepassen zorgen ervoor dat de inspecties voor verzending, met inbegrip van de afgifte van een verslag van akkoordbevinding of een nota van niet-afgifte, worden uitgevoerd binnen het douanegebied van waaruit de goederen worden geëxporteerd, of, indien de inspectie vanwege de complexe aard van de betrokken produkten niet binnen dat douanegebied kan worden uitgevoerd of indien beide partijen daarin toestemmen, binnen het douanegebied waarin de goederen worden vervaardigd.

Normen

• 4 De Leden die de regeling toepassen zorgen ervoor dat de kwantiteit- en kwaliteitscontroles worden uitgevoerd in overeenstemming met de door de verkoper en koper in de koopovereenkomst vastgelegde normen en dat, bij gebrek aan dergelijke normen, de terzake geldende internationale normen261 worden toegepast.

Doorzichtigheid

• 5 De Leden die de regeling toepassen zorgen ervoor dat de inspectie vóór verzending op transparante wijze wordt uitgevoerd.

• 6 De Leden die de regeling toepassen zorgen ervoor dat, wanneer de exporteurs voor de eerste keer met hen contact opnemen, de met inspectie vóór verzending belaste instanties de exporteurs een lijst ter beschikking stellen met alle inlichtingen die zij nodig hebben om aan de voorwaarden van de inspectie te voldoen. De met inspectie vóór verzending belaste instanties verstrekken de eigenlijke inlichtingen wanneer zij door de exporteurs daarom worden verzocht. Deze inlichtingen omvatten een verwijzing naar de wetten en regelingen van de Leden die de regeling toepassen welke betrekking hebben op de inspectie vóór verzending en bevatten ook de procedures en criteria die worden gebruikt voor de inspectie en voor het controleren van de prijzen en wisselkoersen, de rechten van de exporteurs ten opzichte van de inspectie-instanties alsook de in lid 21 ingestelde procedure van beroep. Op een verzending worden geen bijkomende procedurevoorwaarden of wijzigingen in bestaande procedures toegepast tenzij de betrokken exporteur van die wijzigingen in kennis wordt gesteld op het ogenblik dat datum van de inspectie wordt vastgelegd. In noodsituaties als bedoeld in artikelen XX en XXI van de GATT 1994, mogen dergelijke aanvullende voorwaarden of wijzigingen evenwel vóórdat de exporteur daarvan in kennis is gesteld op een verzending worden toegepast. Deze bijstand ontheft de exporteurs evenwel niet van hun verplichtingen met betrekking tot de naleving van de invoervoorschriften van de Leden die de regeling toepassen.

• 7 De Leden die de regeling toepassen zorgen ervoor dat de in punt 6 bedoelde inlichtingen op passende wijze ter beschikking van de exporteurs worden gesteld en dat de bureau's van de met de inspectie vóór verzending belaste instanties fungeren als informatiecentra waar deze inlichtingen beschikbaar zijn.

• 8 De Leden die de regeling toepassen maken alle van toepassing zijnde wetten en regelingen inzake inspectie vóór verzending onverwijld bekend zodat de andere regeringen en handelaren daarvan kennis kunnen nemen.

Bescherming van vertrouwelijke bedrijfsinformatie

• 9 De Leden die de regeling toepassen zorgen ervoor dat de met inspectie vóór verzending belaste instanties alle tijdens die inspectie ontvangen gegevens als vertrouwelijke bedrijfsinformatie behandelen voor zover die informatie niet reeds is gepubliceerd, niet algemeen toegankelijk is voor derden dan wel tot het openbaar domein behoort. De Leden die de regeling toepassen zien erop toe dat de met inspectie vóór verzending belaste instanties daartoe procedures in acht nemen.

• 10 De Leden die de regeling toepassen verstrekken de Leden die daarom verzoeken inlichtingen over de maatregelen die zij nemen om uitvoering te geven aan lid 9. De bepalingen van dit lid verplichten een Lid niet tot bekendmaking van vertrouwelijke gegevens waardoor de effectiviteit van de inspectieprogramma's in gevaar zou worden gebracht, dan wel de wettige handelsbelangen van bepaalde openbare of particuliere ondernemingen zouden worden geschaad.

• 11 De Leden die de regeling toepassen zorgen ervoor dat de met inspectie vóór verzending belaste instanties geen vertrouwelijke bedrijfsinformatie onthullen aan derden, met dien verstande dat die instanties deze inlichtingen mogen delen met de overheidsinstellingen waarmee zij een contract hebben gesloten of waarvan zij een opdracht hebben ontvangen. De Leden die de regeling toepassen zorgen ervoor dat de vertrouwelijke bedrijfsinformatie die zij ontvangen van de met inspectie vóór verzending belaste instanties waarmee zij een contract hebben gesloten of waaraan zij de opdracht hebben toevertrouwd adequaat wordt beschermd. De met inspectie vóór verzending belaste instanties delen de vertrouwelijke bedrijfsinformatie met de regeringen waarmee zij een contract hebben gesloten of waarvan zij hun opdracht hebben ontvangen slechts voor zover dergelijke informatie gewoonlijk is vereist voor kredietbrieven of andere vormen van betaling of voor douanedoeleinden, de toekenning van invoervergunningen of deviezencontroles.

• 12 De Leden die de regeling toepassen zien erop toe dat de met inspectie vóór verzending belaste instanties van de exporteurs niet eisen dat zij inlichtingen verstrekken over:

  • a. gegevens met betrekking tot fabricageprocessen waarvoor patenten of licenties bestaan of die geheim zijn of processen waarvoor een patent is aangevraagd;

  • b. niet bekendgemaakte technische gegevens, andere dan de gegevens die nodig zijn om de conformiteit met technische voorschriften of normen aan te tonen;

  • c. de interne prijsstelling, met inbegrip van de fabricagekosten;

  • d. winstmarges;

  • e. de voorwaarden van overeenkomsten tussen exporteurs en hun leveranciers tenzij het voor de instantie anders niet mogelijk is om de inspectie uit te voeren. In dergelijke gevallen vraagt de met de inspectie belaste instantie slechts de inlichtingen die zij daartoe nodig heeft.

• 13 De in lid 12 bedoelde inlichtingen, die de met inspectie voor verzending belaste instanties overigens niet mogen vragen, mogen door de exporteur uit eigen beweging worden bekendgemaakt om een specifiek geval te verduidelijken.

Belangentegenstellingen

• 14 De Leden die de regeling toepassen zorgen ervoor dat de met inspectie vóór verzending belaste instanties, rekening houdend met de bepalingen inzake de bescherming van vertrouwelijke bedrijfsinformatie van leden 9 tot en met 13, procedures in acht nemen om belangentegenstellingen te vermijden:

  • a. tussen de met inspectie vóór verzending belaste instanties en alle, daarmee verband houdende instanties, met inbegrip van alle instanties waarin laatstgenoemde een financieel of commercieel belang hebben of alle instanties die een financieel belang hebben in de met inspectie vóór verzending belaste instanties, en waarvan de verzendingen door de met inspectie vóór verzending belaste instanties moeten worden gecontroleerd.

  • b. tussen de met inspectie vóór verzending belaste instanties en alle andere instanties, met inbegrip van andere instanties die aan inspectie vóór verzending zijn onderworpen, met uitzondering van de overheidsinstanties die een contract sluiten voor of opdracht geven tot het uitvoeren van de inspecties;

  • c. met diensten van de met inspectie vóór verzending belaste instanties die betrokken zijn bij andere activiteiten dan die welke nodig zijn voor het uitvoeren van de inspectie.

Vertragingen

• 15 De Leden die de regeling toepassen zorgen ervoor dat de met inspectie vóór verzending belaste instanties onredelijke vertraging bij de inspectie van de verzendingen vermijden. Zij zorgen ervoor dat de met de inspectie vóór verzending belaste instantie, zodra zij met een exporteur een datum voor de inspectie is overeengekomen, de inspectie op die datum uitvoert tenzij de exporteur en de instantie een andere datum overeenkomen of indien de met de inspectie vóór verzending belaste instantie door de exporteur of ten gevolge van force majeure262 daarvan wordt weerhouden.

• 16 De Leden die de regeling toepassen zorgen ervoor dat, na ontvangst van de definitieve documenten en de uitvoering van de inspectie, de met inspectie vóór verzending belaste instanties binnen de vijf werkdagen een verslag van akkoordbevinding afgeven dan wel een uitvoerige schriftelijke verklaring overleggen met de redenen voor het niet afgeven van een dergelijk verslag. Zij zorgen ervoor dat de met inspectie vóór verzending belaste instanties in laatstgenoemd geval de exporteurs in de gelegenheid stellen hun standpunt schriftelijk toe te lichten en, indien de exporteurs daarom verzoeken, treffen zij schikkingen opdat zo snel mogelijk op een voor beide partijen geschikte datum een nieuwe inspectie kan worden uitgevoerd.

• 17 De Leden die de regeling toepassen zorgen ervoor dat, telkens wanneer zij door de exporteurs daarom worden verzocht, de met inspectie vóór verzending belaste instanties vóór de datum van de fysieke inspectie, een voorafgaande prijscontrole en, in voorkomend geval, een wisselkoerscontrole uitvoeren op basis van het contract tussen de exporteur en de importeur, de pro-forma faktuur, en in voorkomend geval, de aanvraag voor een invoervergunning. Zij zorgen ervoor dat de door een met inspectie vóór verzending belaste instantie op basis van een dergelijke voorafgaande controle aanvaarde prijs of wisselkoers niet wordt ingetrokken indien de goederen conform de invoerdocumenten en/of invoervergunning zijn. Zij zien erop toe dat, nadat de voorafgaande controle heeft plaatsgevonden, de met inspectie vóór verzending belaste instanties de exporteurs onmiddellijk schriftelijk in kennis stellen van hun instemming met de prijs en/of wisselkoers of uitvoerig de redenen toelichten waarom zij die afwijzen.

• 18 De Leden die de regeling toepassen zorgen ervoor dat, om vertraging bij de betaling te voorkomen, de met inspectie vóór verzending belaste instanties de exporteurs of de door hen aangewezen vertegenwoordigers zo snel mogelijk een verslag van akkoordbevinding toezenden.

• 19 De Leden die de regeling toepassen zorgen ervoor dat de met inspectie voor verzending belaste instanties, ingeval van een schrijf- of tikfout in het verslag van akkoordbevinding, de fout corrigeren en de gecorrigeerde inlichtingen zo snel mogelijk aan de betrokken partijen doen toekomen.

Prijscontrole

• 20 De Leden die de regeling toepassen zorgen ervoor dat om over- en onderfacturering en fraude te voorkomen, de met inspectie vóór verzending belaste instanties bij de prijscontrole263 de volgende richtsnoeren in acht nemen:

  • a. de met inspectie vóór verzending belaste instanties wijzen een tussen een exporteur en een importeur contractueel overeengekomen prijs alleen af indien zij kunnen aantonen dat hun bevinding dat de prijs onbevredigend is steunt op een controleproces dat in overeenstemming is met de in punten b. tot en met e. vermelde criteria;

  • b. de met inspectie vóór verzending belaste instantie baseert haar prijsvergelijking voor het controleren van de exportprijs op de prijs (prijzen) van identieke of soortgelijke goederen die voor export uit hetzelfde land van uitvoer worden aangeboden op of omstreeks hetzelfde ogenblik, onder concurrentiële en vergelijkbare verkoopvoorwaarden, in overeenstemming met de gebruikelijke handelspraktijken en vrij van elke normaal toepasselijke korting. Deze vergelijking moet zijn gebaseerd op het volgende:

    • i. er mag alleen gebruik worden gemaakt van prijzen die een geldige vergelijkingsbasis bieden, rekening houdend met de relevante economische factoren die eigen zijn aan het land van invoer en aan het (de) voor de prijsvergelijking gebruikte land (en);

    • ii. de met inspectie vóór verzending belaste instantie steunt niet op de prijs van goederen die voor export naar verschillende landen van invoer worden aangeboden om arbitrair de laagste prijs voor de verzending op te leggen;

    • iii. de met inspectie vóór verzending belaste instantie houdt rekening met de specifieke elementen vermeld in punt c.;

    • iv. de met inspectie vóór verzending belaste instantie stelt de exporteur in alle fasen van bovengenoemd proces in de gelegenheid om de prijs te verantwoorden;

  • c. bij de prijscontrole houden de met inspectie vóór verzending belaste instanties terdege rekening met de voorwaarden van de verkoopovereenkomst en met de over het algemeen toepasselijke aanpassingsfactoren die betrekking hebben op de transactie; deze factoren omvatten ondermeer het commerciële niveau en de omvang van de verkoop, de leveringstermijnen en -voorwaarden, doorberekeningsclausules, kwaliteitsvoorschriften, speciale vormgevingskenmerken, speciale voorschriften met betrekking tot het transport of de verpakking, de omvang van de bestelling, locoverkopen, seizoeninvloeden, vergoedingen voor licenties of andere intellectuele eigendomsrechten en diensten die worden gepresteerd in het kader van het contract indien zij gewoonlijk niet afzonderlijk worden gefaktureerd. Zij omvatten ook bepaalde elementen met betrekking tot de door de exporteur vastgestelde prijs zoals de contractuele relatie tussen de exporteur en de importeur;

  • d. de controle van de vervoerkosten heeft uitsluitend betrekking op de overeengekomen prijs van de wijze van vervoer in het land van export als aangegeven in het verkoopcontract;

  • e. de volgende elementen mogen niet worden gebruikt voor de prijscontrole:

    • i. de verkoopprijs in het land van invoer van in dat land geproduceerde goederen;

    • ii. de prijs van voor export bestemde goederen van herkomst uit een ander land dan dat van export;

    • iii. de produktiekosten;

    • iv. arbitraire of fictieve prijzen of waarden.

Procedure van beroep

• 21 De Leden die de regeling toepassen zorgen ervoor dat de met inspectie vóór verzending belaste instanties procedures vaststellen voor het ontvangen en onderzoeken van klachten van exporteurs en het nemen van besluiten daaromtrent en dat de inlichtingen in verband met dergelijke procedures in overeenstemming met de bepalingen van leden 6 en 7 ter beschikking van de exporteurs worden gesteld. De Leden die de regeling toepassen zorgen ervoor dat de procedures worden ontwikkeld en toegepast in overeenstemming met de volgende richtlijnen:

• a. de met inspectie vóór verzending belaste instanties wijzen één of meer ambtenaren aan die tijdens de normale kantooruren in elke stad of haven waarin zij een administratief bureau voor inspectie vóór verzending hebben aanwezig zijn om klachten van exporteurs te ontvangen en te onderzoeken en besluiten daaromtrent te nemen;

• b. de exporteurs verstrekken de aangewezen ambtenaar (ambtenaren) schriftelijk de feiten met betrekking tot de transactie in kwestie, de aard van de klacht en een voorstel voor een oplossing;

• c. de aangewezen ambtenaar (ambtenaren) neemt (nemen) de klachten van de exporteurs welwillend in beraad en neemt (nemen) zo snel mogelijk na ontvangst van de in punt b. bedoelde documenten een besluit.

Afwijking

• 22 In afwijking van de bepalingen van artikel 2, bepalen de Leden die de regeling toepassen dat, met uitzondering van gedeeltelijke zendingen, verzendingen waarvan de waarde kleiner is dan de door het Lid dat de regeling toepast voor dergelijke verzendingen vastgestelde minimumwaarde, niet worden geïnspecteerd tenzij in uitzonderlijke omstandigheden. Deze minimumwaarde is één van de inlichtingen die uit hoofde van de bepalingen van lid 6 aan de exporteurs worden verstrekt.

Artikel 3. Verplichtingen van exporterende leden

Non-discriminatie

• 1 De exporterende Leden zorgen ervoor dat hun wetten en regelingen met betrekking tot inspectie vóór verzending op niet-discriminerende wijze worden toegepast.

Doorzichtigheid

• 2 De exporterende Leden maken onverwijld alle op de inspectie vóór verzending van toepassing zijnde wetten en regelingen bekend zodat de andere regeringen en handelaren daarvan kennis kunnen nemen.

Technische bijstand

• 3 De exporterende Leden verlenen de Leden die de regeling toepassen, onder in onderling overleg overeengekomen voorwaarden, technische bijstand ter verwezenlijking van de doelstellingen van deze Overeenkomst.264

Artikel 4. Procedures voor onafhankelijk onderzoek

De Leden moedigen de met inspectie vóór verzending belaste instanties en exporteurs aan hun geschillen onderling te regelen. Elke partij mag evenwel, twee werkdagen na indiening van de klacht in overeenstemming van de bepalingen van artikel 2, lid 21, een onafhankelijk onderzoek van het geschil aanvragen. De Leden nemen alle redelijke binnen hun bereik liggende maatregelen om ervoor te zorgen dat daartoe de volgende procedures worden ingesteld en in stand gehouden:

• a. deze procedures worden uitgevoerd door een onafhankelijke instantie die voor de toepassing van deze Overeenkomst gezamenlijk wordt gevormd door een organisatie die de met inspectie vóór verzending belaste instanties vertegenwoordigt en een organisatie die de exporteurs vertegenwoordigt;

• b. de sub a. bedoelde onafhankelijke instantie stelt een lijst van deskundigen op, bestaande uit:

  • i. een deel met leden aangewezen door de organisatie die de met inspectie vóór verzending belaste instanties vertegenwoordigt;

  • ii. een deel met leden aangewezen door een organisatie die de exporteurs vertegenwoordigt;

  • iii. een deel met onafhankelijke handelsdeskundigen aangewezen door de sub a. bedoelde onafhankelijke instantie.

  De geografische spreiding van de op de lijst voorkomende deskundigen is zo dat alle in het kader van deze procedures opgeworpen geschillen snel kunnen worden behandeld.

  Deze lijst wordt opgesteld binnen de twee maanden na de inwerkingtreding van de WTO-Overeenkomst en wordt jaarlijks bijgewerkt. De lijst moet voor iedereen toegankelijk zijn. Hij wordt ter kennis gebracht van het Secretariaat en wordt aan alle Leden toegezonden;

• c. een exporteur of een met inspectie vóór verzending belaste instantie die een geschil wenst op te werpen neemt contact op met de sub a. bedoelde onafhankelijke instantie en dient een verzoek in tot vorming van een speciale groep. De onafhankelijke instantie is verantwoordelijk voor de instelling van een speciale groep. Deze bestaat uit drie leden. De leden van de speciale groep worden zo gekozen dat onnodige kosten en vertragingen worden vermeden. Het eerste lid wordt door de met inspectie voor verzending belaste instantie gekozen uit deel i. van bovengenoemde lijst, op voorwaarde dat dit lid geen banden heeft met die instantie. Het tweede lid wordt door de betrokken exporteur gekozen uit deel ii. van bovengenoemde lijst, op voorwaarde dat dit lid geen banden heeft met die exporteur. Het derde lid wordt door de sub a. bedoelde onafhankelijke instantie gekozen uit deel iii. van bovengenoemde lijst. Er wordt geen verzet aangetekend tegen een uit deel iii. van bovengenoemde lijst gekozen onafhankelijk handelsdeskundige;

• d. de uit deel iii. van bovengenoemde lijst gekozen onafhankelijke handelsdeskundige zit de speciale groep voor. De onafhankelijke handelsdeskundige neemt de nodige beslissingen om te zorgen voor een snelle beslechting van het geschil door de speciale groep. Hij beslist bijvoorbeeld of de feiten van de zaak een bijeenkomst van de leden van de speciale groep vereisen en, in voorkomend geval, waar die bijeenkomst dient plaats te vinden, rekening houdend met de plaats van de betrokken inspectie;

• e. indien de partijen bij het geschil daarmee instemmen kan de sub a. bedoelde onafhankelijke instantie één onafhankelijke handelsdeskundige kiezen uit deel iii. van bovengenoemde lijst om het geschil in kwestie te onderzoeken. Deze deskundige neemt de beslissingen die nodig zijn voor een snelle beslechting van het geschil, bijvoorbeeld met inachtneming van de plaats van de bedoelde inspectie;

• f. dit onderzoek heeft tot doel na te gaan of de partijen bij het geschil tijdens de betwiste inspectie de bepalingen van deze Overeenkomst zijn nagekomen. De procedures dienen vlot te verlopen en beide partijen de gelegenheid te bieden om hun standpunt persoonlijk of schriftelijk toe te lichten;

• g. de beslissingen van de uit drie leden bestaande speciale groep worden bij meerderheid van stemmen genomen. De beslissing over het geschil wordt genomen binnen de acht werkdagen na de vraag om een onafhankelijk onderzoek en wordt aan de partijen bij het geschil medegedeeld. Deze termijn kan met de instemming van de partijen bij het geschil worden verlengd. De speciale groep of de onafhankelijke handelsdeskundige verdelen de kosten op grond van de merites van de zaak;

• h. de beslissing van de speciale groep is bindend voor de met inspectie vóór verzending belaste instantie en de exporteur die partij zijn bij het geschil.

Artikel 5. Kennisgeving

De Leden leggen aan het Secretariaat kopieën over van de wetten en regelingen waarmee zij deze Overeenkomst in werking doen treden evenals kopieën van alle andere wetten en regelingen met betrekking tot de inspectie voor verzending wanneer de WTO-Overeenkomst voor het betrokken Lid in werking treedt. Er worden geen wijzigingen in de wetten en regelingen met betrekking tot inspectie vóór verzending ten uitvoer gelegd voordat zij officieel zijn bekendgemaakt. Zij worden onmiddellijk na hun bekendmaking ter kennis gebracht van het Secretariaat. Het Secretariaat deelt de Leden mee dat deze inlichtingen beschikbaar zijn.

Artikel 6. Onderzoek

Na het verstrijken van het tweede jaar te rekenen vanaf de inwerkingtreding van de WTO-Overeenkomst en vervolgens om de drie jaar stelt de Ministeriële Conferentie een onderzoek in naar de bepalingen, de tenuitvoerlegging en de toepassing van deze Overeenkomst, zulks met inachtneming van de doelstellingen ervan en de bij de tenuitvoerlegging opgedane ervaring. De Ministeriële Conferentie kan op grond van dit onderzoek de bepalingen van de Overeenkomst wijzigen.

Artikel 7. Overleg

De Leden plegen op verzoek overleg met andere Leden over alle vraagstukken in verband met de toepassing van deze Overeenkomst. In dergelijke gevallen zijn de bepalingen van artikel XXII van de GATT 1994, als uitgewerkt en toegepast in het kader van het Memorandum van Overeenstemming inzake de beslechting van geschillen, van toepassing op deze Overeenkomst.

Artikel 8. Beslechting van geschillen

Alle geschillen tussen Leden met betrekking tot de toepassing van deze Overeenkomst zijn onderworpen aan de bepalingen van artikel XXIII van de GATT 1994, als uitgewerkt en toegepast in het kader van het Memorandum van Overeenstemming inzake de beslechting van geschillen.

Artikel 9. Slotbepalingen

• 1 De Leden nemen de maatregelen die nodig zijn voor de tenuitvoerlegging van deze Overeenkomst.

• 2 De Leden zien erop toe dat hun wetten en regelingen niet strijdig zijn met de bepalingen van deze Overeenkomst.

Overeenkomst betreffende de oorsprongsregels

De Leden,

Ervan nota nemend dat de Ministers op 20 september 1986 zijn overeengekomen dat „de multilaterale handelsbesprekingen in het kader van de Uruguay-Ronde gericht zijn op een verdere liberalisering en uitbreiding van de wereldhandel, een versterking van de rol van de GATT en een verbetering van het vermogen van het GATT-stelsel zich aan de ontwikkelingen van het internationale economische klimaat aan te passen;

Geleid door de wens de doelstellingen van de GATT 1994 na te streven;

Erkennend dat duidelijke en voorspelbare oorsprongsregels en de toepassing van deze regels het internationale handelsverkeer vergemakkelijken;

Geleid door de wens ervoor te zorgen dat de oorsprongsregels zelf het handelsverkeer niet onnodig belemmeren;

Geleid door de wens ervoor te zorgen dat de oorsprongsregels de rechten van de Leden op grond van de GATT 1994 teniet doen of aantasten;

Erkennend dat het wenselijk is te zorgen voor doorzichtige wetten, verordeningen en praktijken op het gebied van de oorsprongsregels;

Verlangend ervoor te zorgen dat de oorsprongsregels worden opgesteld en toegepast op een onpartijdige, transparante, voorspelbare, consequente en neutrale wijze;

Erkennend dat bij deze overeenkomst een overlegmechanisme en procedures voor een spoedige, effectieve en billijke regeling van geschillen zijn ingesteld;

Verlangende de oorsprongsregels te harmoniseren en te verduidelijken;

Zijn als volgt overeengekomen:

DEEL I. DEFINITIES EN TOEPASSINGSGEBIED

Artikel 1. Oorsprongsregels

• 1 Voor de toepassing van de Delen I tot en met IV van deze overeenkomst zijn oorsprongsregels de wetten, verordeningen en bestuursrechtelijke besluiten van algemene gelding die de Leden toepassen om het land van oorsprong van goederen vast te stellen, voor zover deze oorsprongsregels geen betrekking hebben op contractuele of autonome handelsregelingen die tot de toekenning van tariefpreferenties leiden die verder gaan dan de toepassing van artikel I, lid 1, van de GATT 1994.

• 2 De in lid 1 bedoelde oorsprongsregels omvatten alle oorsprongsregels die in het kader van niet-preferentiële handelsbeleidsinstrumenten worden aangewend, zoals bij de toepassing van de meestbegunstigingsclausule op grond van de artikelen I, II, III, XI en XIII van de GATT 1994, van anti-dumpingrechten en compenserende rechten op grond van artikel VI van de GATT 1994, van vrijwaringsmaatregelen op grond van artikel XIX van de GATT 1994; van de voorschriften inzake oorsprongsaanduidingen op grond van artikel IX van de GATT 1994; en van discriminerende kwantitatieve beperkingen of tariefcontingenten. Zij omvatten tevens de oorsprongsregels die voor overheidsopdrachten en handelsstatistieken worden gebruikt.265

DEEL II. DISCIPLINES BIJ DE TOEPASSING VAN DE OORSPRONGSREGELS

Artikel 2. Disciplines in de overgangsperiode

Zolang het in Deel IV omschreven werkprogramma voor de harmonisering van de oorsprongsregels niet is voltooid, zien de Leden erop toe dat:

• a. wanneer zij bestuursrechtelijke bepalingen van algemene gelding vaststellen, duidelijk is omschreven aan welke voorwaarden moet worden voldaan. Met name:

  • i. bij toepassing van het criterium van verandering van tariefindeling, moet in de oorsprongsregel en de eventuele uitzonderingen op die regel duidelijk worden aangegeven om welke posten of postonderverdelingen van de tariefnomenclatuur het gaat;

  • ii. bij toepassing van het criterium van het ad-valorempercentage, moet de wijze waarop dit percentage wordt berekend ook in de oorsprongsregels worden aangegeven;

  • iii. bij toepassing van het criterium van het fabricage- of bewerkingsproces, moet nauwkeurig worden aangegeven door welk proces de betrokken goederen het karakter van produkt van oorsprong verkrijgen;

• b. ongeacht de handelsbeleidsmaatregel of het handelsbeleidsinstrument waarmee ze verband houden, hun oorsprongsregels niet rechtstreeks of onrechtstreeks gebruikt worden als instrumenten om handelsdoeleinden te bereiken;

• c. de oorsprongsregels zelf de internationale handel niet beperken, vervalsen of verstoren. Voor de bepaling van het land van oorsprong stellen zij geen onnodig strenge eisen en evenmin voorwaarden die geen verband houden met de vervaardiging of bewerking. Kosten die geen rechtstreeks verband houden met de vervaardiging of bewerking mogen evenwel in aanmerking worden genomen voor de toepassing van het criterium van het ad-valorem-percentage als onder a. bepaald;

• d. de oorsprongsregels die zij op import- en exportgoederen toepassen niet strenger zijn dan de oorsprongsregels die zij toepassen om te bepalen of goederen binnenlandse goederen zijn en dat zij niet tussen andere Leden discrimineren, ongeacht de banden van de producenten van de betrokken goederen266 met andere bedrijven;

• e. hun oorsprongsregels op een consequente, eenvormige, onpartijdige en redelijke wijze worden toegepast;

• f. hun oorsprongsregels op positieve criteria zijn gebaseerd. Oorsprongsregels die aangeven wat geen oorsprong verleent (negatieve criteria) zijn toegestaan als onderdeel van een uitleg over een positief criterium of in bijzondere gevallen waarin een positieve bepaling van de oorsprong niet nodig is;

• g. hun wetten, verordeningen, rechterlijke besluiten en bestuursrechtelijke voorschriften van algemene gelding over oorsprongsregels gepubliceerd worden alsof lid 1 van artikel X van de GATT 1994 daarop van toepassing was en zij daarmee in overeenstemming waren;

• h. wanneer een exporteur, importeur of een persoon met een rechtmatig belang hierom verzoekt, zo spoedig mogelijk, en in ieder geval binnen 150 dagen267 na dit verzoek, verklaringen worden afgegeven over de oorsprong die zij goederen zouden toekennen, mits alle noodzakelijke gegevens zijn verstrekt. Verzoeken om dergelijke verklaringen worden aanvaard voordat de handel in de betrokken goederen begint en kunnen steeds later worden aanvaard. De verklaringen blijven drie jaar geldig, op voorwaarde dat de feiten en voorwaarden, met inbegrip van de oorsprongsregels waarop zij zijn gebaseerd, vergelijkbaar blijven. Mits de betrokkenen hiervan van tevoren in kennis worden gesteld, zijn de verklaringen niet meer geldig wanneer naar aanleiding van een onder j. bedoeld beroep een besluit wordt genomen dat met de verklaring strijdig is. De verklaringen worden bekend gemaakt onder voorbehoud van het bepaalde onder k.;

• i. bij de invoering van wijzigingen in hun oorsprongsregels of van nieuwe oorsprongsregels, deze wijzigingen niet met terugwerkende kracht worden toegepast zoals bepaald in en onverminderd hun wetten of verordeningen;

• j. tegen bestuursrechtelijke maatregelen die zij nemen op het gebied van de vaststelling van de oorsprong terstond beroep kan worden ingesteld of een procedure aangespannen bij een rechterlijke instantie, een arbitragetribunaal of administratieve instantie, onafhankelijk van de autoriteit die de vaststelling heeft gedaan, hetgeen tot wijziging of nietigverklaring van de vaststelling kan leiden;

• k. alle informatie van vertrouwelijke aard of die met het oog op de toepassing van de oorsprongsregels op vertrouwelijke basis wordt verstrekt, als strikt vertrouwelijk wordt behandeld door de betrokken autoriteiten, die deze niet bekend zullen maken zonder de uitdrukkelijke toestemming van de persoon of de regering die deze informatie heeft verstrekt, tenzij mededeling ervan noodzakelijk is in het kader van een gerechtelijke procedure.

Artikel 3. Disciplines na de overgangsperiode

Gezien het doel dat alle Leden wensen te bereiken, namelijk de harmonisering van de oorsprongsregels door middel van het in deel IV omschreven harmoniseringswerkprogramma, zien zij er bij de uitvoering van de resultaten van dit programma erop toe dat:

• a. zij de oorsprongsregels voor alle in artikel 1 omschreven doeleinden op gelijke wijze toepassen;

• b. volgens hun oorsprongsregels de oorsprong van bepaalde produkten het land is waar de goederen geheel en al werden verkregen dan wel, wanneer meer dan een land bij de produktie van de goederen is betrokken, het land waar de laatste ingrijpende be- of verwerking werd verricht;

• c. de oorsprongsregels die zij op import- en exportgoederen toepassen niet strenger zijn dan de oorsprongsregels die zij toepassen om te bepalen of goederen binnenlandse goederen zijn en dat zij niet tussen andere Leden discrimineren, ongeacht de banden van de producenten van de betrokken goederen met andere bedrijven;

• d. de oorsprongsregels op een consequente, eenvormige, onpartijdige en redelijke wijze worden toegepast;

• e. hun wetten, verordeningen, rechterlijke besluiten en bestuursrechtelijke voorschriften van algemene gelding over oorsprongsregels gepubliceerd worden alsof lid 1 van artikel X van de GATT 1994 daarop van toepassing was en zij daarmee in overeenstemming waren;

• f. wanneer een exporteur, importeur of een persoon met een rechtmatig belang hierom verzoekt, zo spoedig mogelijk en in ieder geval binnen 150 dagen na dit verzoek, verklaringen worden afgegeven over de oorsprong die zij goederen zouden toekennen, mits alle noodzakelijke gegevens zijn verstrekt. Verzoeken om dergelijke verklaringen worden aanvaard voordat de handel in de betrokken goederen begint en kunnen steeds later worden aanvaard. De verklaringen blijven drie jaar geldig, mits de feiten en voorwaarden, met inbegrip van de oorsprongsregels waarop zij zijn gebaseerd, vergelijkbaar blijven. Mits de betrokkenen hiervan van tevoren in kennis worden gesteld, zijn de verklaringen niet meer geldig wanneer naar aanleiding van een onder h. bedoeld beroep een besluit wordt genomen dat met de verklaring strijdig is. De verklaringen worden bekend gemaakt onder voorbehoud van het bepaalde onder i.;

• g. wanneer zij hun oorsprongsregels wijzigen of nieuwe oorsprongsregels invoeren, dit niet met terugwerkende kracht worden geschiedt zoals bepaald in en onverminderd hun wetten of verordeningen;

• h. tegen bestuursrechtelijke maatregelen die zij nemen op het gebied van de vaststelling van de oorsprong onmiddellijk een beroep kan worden ingesteld of een procedure aangespannen bij een rechterlijke instantie, een arbitragetribunaal of administratieve instantie, onafhankelijk van de autoriteit die de vaststelling heeft gedaan, hetgeen tot de wijziging of de nietigverklaring van de vaststelling kan leiden;

• i. alle informatie van vertrouwelijke aard of die met het oog op de toepassing van de oorsprongsregels op vertrouwelijke basis wordt verstrekt, als strikt vertrouwelijk wordt behandeld door de betrokken autoriteiten, die deze niet bekend zullen maken zonder de uitdrukkelijke toestemming van de persoon of de regering die deze informatie heeft verstrekt, tenzij mededeling ervan noodzakelijk is in het kader van een gerechtelijke procedure.

DEEL III. PROCEDURES VOOR KENNISGEVING, ONDERZOEK, OVERLEG EN DE BESLECHTING VAN GESCHILLEN

Artikel 4. Instellingen

• 1 Hierbij wordt een Commissie „Oorsprongsregels” opgericht (in deze overeenkomst „Commissie” genoemd) die bestaat uit vertegenwoordigers van alle Leden. De Commissie kiest haar voorzitter en komt bijeen wanneer dit nodig is, doch ten minste éénmaal per jaar, ten einde de Leden de gelegenheid te geven met elkaar overleg te plegen over zaken in verband met de toepassing van de Delen I, II, III en IV of de realisatie van de daarin genoemde doelstellingen en om andere taken te vervullen waarmee ze op grond van deze overeenkomst of door de Raad Goederenverkeer is belast. De Commissie vraagt de in punt b. genoemde Technische Commissie zo nodig inlichtingen en advies over aangelegenheden die met deze overeenkomst verband houden. De Commissie kan de Technische Commissie ook vragen andere werkzaamheden uit te voeren die zij voor de realisatie van de bovengenoemde doelstellingen van deze Overeenkomst nuttig acht. Het Secretariaat van de WTO neemt het secretariaat van de Commissie waar.

• 2 Onder de auspiciën van de Internationale Douaneraad (IDR) wordt een Technische Commissie „Oorsprongsregels” ingesteld (in deze overeenkomst „Technische Commissie” genoemd), zoals in Bijlage I uiteengezet. De Technische Commissie voert de in Deel IV vermelde en in Bijlage I nader omschreven technische werkzaamheden uit. De Technische Commissie vraagt de Commissie zo nodig inlichtingen en advies over aangelegenheden die met deze overeenkomst verband houden. De Technische Commissie kan de Commissie ook vragen andere werkzaamheden uit te voeren die het voor de realisatie van de bovengenoemde doelstellingen van de Overeenkomst nuttig acht. Het Secretariaat van de IDR neemt het secretariaat van de Technische Commissie waar.

Artikel 5. Informatie en procedures voor de wijziging en de invoering van nieuwe oorsprongsregels

• 1 Elk Lid deelt het Secretariaat, binnen 90 dagen na de datum van inwerkingtreding van de WTO-Overeenkomst, zijn oorsprongsregels, rechterlijke besluiten en bestuursrechtelijke voorschriften van algemene gelding mede betreffende de oorsprongsregels die op die datum van toepassing zijn. Heeft een Lid een oorsprongsregel bij vergissing niet medegedeeld, dan doet het dit alsnog zodra de vergissing is opgemerkt. Het Secretariaat zendt de leden lijsten toe van ontvangen informatie die bij het Secretariaat beschikbaar is.

• 2 In de in artikel 2 bedoelde periode publiceren Leden die hun oorsprongsregels wijzigen, tenzij het minimale wijzigingen betreft, of die nieuwe oorsprongsregels invoeren die, in de zin van dit artikel ook de in lid 1 bedoelde oorsprongsregels omvatten die het secretariaat niet werden medegedeeld, ten minste 60 dagen vóór de inwerkingtreding van de gewijzigde of nieuwe regel hierover op zulke wijze een bericht dat belanghebbenden van het voornemen tot wijziging van een oorsprongsregel of tot invoering van een nieuwe oorsprongsregel kennis kunnen nemen, tenzij een Lid met buitengewone omstandigheden wordt geconfronteerd of hiermee geconfronteerd dreigt te worden. In deze buitengewone gevallen wordt de gewijzigde of nieuwe regel zo spoedig mogelijk door het Lid gepubliceerd.

Artikel 6. Onderzoek

• 1 De Commissie onderzoekt elk jaar de toepassing en werking van de delen II en III van deze overeenkomst, met inachtneming van de daarin vermelde doelstellingen. De Commissie stelt de Raad Goederenverkeer in kennis van de ontwikkelingen gedurende de onderzochte periode.

• 2 De Commissie onderzoekt de bepalingen van de delen I, II en III en stelt de wijzigingen voor die als gevolg van de resultaten van het harmoniseringswerkprogramma nodig mochten blijken.

• 3 De Commissie stelt in samenwerking met de Technische Commissie regelingen in om wijzigingen op de resultaten van het harmoniseringswerkprogramma te bestuderen en voor te stellen, met inachtneming van de doelstellingen en principes van artikel 9. Het kan hier met name gaan om de praktische uitvoerbaarheid van regels of de aanpassing van regels aan nieuwe produktieprocessen die het gevolg zijn van technologische ontwikkelingen.

Artikel 7. Overleg

Het bepaalde in artikel XXII van de GATT 1994, zoals uitgewerkt en toegepast bij het Memorandum van Overeenstemming inzake de Beslechting van Geschillen is op deze overeenkomst van toepassing.

Artikel 8. Regeling van geschillen

Het bepaalde in artikel XXII van de GATT 1994, zoals uitgewerkt en toegepast in het Memorandum van Overeenstemming inzake de Beslechting van Geschillen is op deze overeenkomst van toepassing.

DEEL IV. HARMONISERING VAN DE OORSPRONGSREGELS

Artikel 9. Doelstellingen en beginselen

• 1 Ten einde de oorsprongsregels te harmoniseren en, onder meer, de wereldhandel meer zekerheid te verschaffen, draagt de Ministeriële Conferentie tezamen met de IDR zorg voor de uitvoering van het hierna omschreven werkprogramma dat op de volgende beginselen is gebaseerd:

  • a. De oorsprongsregels dienen voor alle in artikel 1 omschreven doeleinden op dezelfde wijze te worden toegepast.

  • b. De oorsprongsregels dienen als oorsprong van een produkt het land aan te wijzen waar het produkt geheel en al is verkregen of, wanneer bij de vervaardiging van het produkt meer dan een land is betrokken, het land waar de laatste ingrijpende bewerking is verricht.

  • c. De oorsprongsregels dienen objectief, duidelijk en voorspelbaar te zijn.

  • d. De oorsprongsregels mogen noch rechtstreeks noch onrechtstreeks gebruikt worden als instrumenten om handelsdoeleinden te vervolgen, ongeacht de maatregel of het instrument waarmee ze eventueel zijn verbonden. Zij mogen niet van dien aard zijn dat zij de internationale handel beperken, vervalsen of verstoren. Zij mogen geen onnodig strenge eisen stellen of voor de bepaling van het land van oorsprong voorwaarden stellen die geen verband houden met de vervaardiging of bewerking van produkten. Kosten die geen rechtstreeks verband houden met de vervaardiging of bewerking mogen echter voor de toepassing van een op een ad-valorem-percentage gebaseerd criterium in aanmerking worden genomen.

  • e. De oorsprongsregels dienen zo te zijn dat zij op een consequente, eenvormige, onpartijdige en redelijke wijze toegepast kunnen worden.

  • f. De oorsprongsregels dienen onderling samen te hangen.

  • g. De oorsprongsregels dienen op positieve criteria te zijn gebaseerd. Negatieve criteria mogen worden gebruikt om positieve te verduidelijken.

Werkprogramma

• 2

  • a. Het werkprogramma zal zo spoedig mogelijk na de inwerkingtreding van de WTO-Overeenkomst worden aangevat en zal binnen drie jaar worden voltooid.

  • b. De in artikel 4 bedoelde Commissie en Technische Commissie zijn de geëigende organen voor de uitvoering van de hier bedoelde werkzaamheden.

  • c. Met het oog op een nauwe samenwerking met de IDR, vraagt de Commissie de Technische Commissie om mededeling van de interpretaties en adviezen die uit de hieronder omschreven werkzaamheden, op basis van de in lid 1 omschreven beginselen, voortvloeien. Met het oog op een tijdige voltooiing van het harmoniseringswerkprogramma worden de werkzaamheden uitgevoerd per produktensector op basis van de verschillende hoofdstukken en afdelingen van de nomenclatuur van het Geharmoniseerd Systeem (GS).

    • i. Geheel en al verkregen produkten en minimale be- of verwerkingen

      De Technische Commissie stelt geharmoniseerde definities op van:

      • – produkten die als geheel en al in één land verkregen kunnen worden beschouwd. Deze definities zijn zo gedetailleerd mogelijk;

      • – minimale be- of verwerkingen die op zich geen oorsprong verlenen.

      De resultaten van deze werkzaamheden worden de Commissie voorgelegd binnen drie maanden na ontvangst van diens verzoek.

    • ii. Ingrijpende be- of verwerking – Verandering van tariefindeling

      • -

        Aan de hand van het criterium van de ingrijpende be- of verwerking, onderzoekt de Technische Commissie het gebruik van het begrip „verandering van tariefpost of van tariefpostonderverdelingen” bij het ontwikkelen van oorsprongsregels voor bepaalde produkten of een bepaalde produktsector en, zo nodig, de minimale wijziging binnen de nomenclatuur die aan dit criterium beantwoordt.

      • -

        De Technische Commissie verdeelt bovengenoemde werkzaamheden op produktbasis, volgens de hoofdstukken of afdelingen van de GS-nomenclatuur, zodat de resultaten van de werkzaamheden ten minste per kwartaal aan de Commissie worden voorgelegd. De Technische Commissie voltooit bovengenoemde werkzaamheden binnen een termijn van een jaar en drie maanden na ontvangst van het verzoek van de Commissie.

    • iii. Ingrijpende be- of verwerking – Aanvullende criteria

      Voor elke produktsector of afzonderlijke produktcategorie waarvoor het aan de hand van de GS-nomenclatuur alleen niet mogelijk is van ingrijpende be- of verwerking te spreken, en nadat de werkzaamheden op grond van punt ii. zijn voltooid:

      • – onderzoekt de Technische Commissie, bij het ontwikkelen van oorsprongsregels voor bepaalde produkten of een bepaalde produktsector, aan de hand van het criterium van ingrijpende be- of verwerking, het gebruik, op aanvullende of exclusieve wijze, van andere criteria, met inbegrip van ad-valorem-percentagesWordt het ad-valorem-percentage toegepast, dan wordt de wijze van berekening van dit percentage ook in de oorsprongsregels aangegeven. en/of produktie- of verwerkingsprocessenWordt het criterium van het produktie- of het be- of verwerkingsproces toegepast, dan moet het proces dat oorsprong verleent nauwkeurig worden aangegeven.;268 en/of produktie- of verwerkingsprocessen269;

      • – kan de Technische Commissie uitleg geven over haar voorstellen;

      • – verdeelt de Technische Commissie bovengenoemde werkzaamheden op produktbasis, volgens de hoofdstukken of afdelingen van de GS-nomenclatuur, zodat resultaten van de werkzaamheden ten minste per kwartaal aan de Commissie kunnen worden voorgelegd. De Technische Commissie voltooit bovengenoemde werkzaamheden binnen een termijn van een jaar en drie maanden na ontvangst van het verzoek van de Commissie.

Rol van de Commissie

• 3 Op grond van de in lid 1 omschreven beginselen:

  • a. onderzoekt de Commissie regelmatig de interpretaties en adviezen van de Technische Commissie overeenkomstig de in lid 2, onder c., alinea's i., ii. en iii. genoemde termijnen met het oog op de goedkeuring van deze interpretaties en adviezen. De Commissie kan de Technische Commissie verzoeken deze interpretaties en adviezen te verfijnen of nader uit te werken en/of een nieuwe aanpak te ontwikkelen. Ter ondersteuning van de Technische Commissie geeft de Commissie aan waarom het om bijkomende werkzaamheden, en, indien van toepassing, om een andere aanpak verzoekt;

  • b. onderzoekt de Commissie, nadat de in lid 2, onder c., alinea's i., ii. en iii. genoemde werkzaamheden zijn afgesloten, het geheel van de resultaten op onderlinge samenhang.

Resultaten van het harmoniseringswerkprogramma en aansluitende werkzaamheden

• 4 De Ministeriële Conferentie stelt de resultaten van het harmoniseringswerkprogramma vast in een bijlage die een onderdeel van deze overeenkomst vormt.270 De Ministeriële Conferentie stelt de termijn voor de inwerkingtreding van deze bijlage vast.

Bijlage I. TECHNISCHE COMMISSIE „OORSPRONGSREGELS”

Taken

• 1. De permanente taken van de Technische Commissie zijn de volgende:

  • a. Op verzoek van een lid van de Technische Commissie, onderzoek van specifieke technische problemen die zijn gerezen bij de praktische toepassing van de oorsprongsregels door de Leden en, op grond van de beschreven feiten, advies over passende oplossingen.

  • b. Op verzoek van een Lid of van de Commissie, informatie en advies over kwesties in verband met de bepaling van de oorsprong van goederen.

  • c. Opstelling en verspreiding van periodieke verslagen over de technische aspecten van de werking en status van deze overeenkomst.

  • d. Jaarlijks onderzoek van de technische aspecten van de uitvoering en werking van de Delen II en III.

• 2. De Technische Commissie voert op verzoek van de Commissie andere taken uit.

• 3. De Technische Commissie streeft ernaar specifieke aangelegenheden, met name die welke Leden of de Commissie hebben voorgelegd, binnen een redelijk korte termijn af te handelen.

Vertegenwoordiging

• 4. Elk Lid heeft het recht in de Technische Commissie vertegenwoordigd te zijn. Elk Lid kan een vertegenwoordiger en één of meer plaatsvervangende vertegenwoordigers als lid van de Technische Commissie benoemen. Een Lid dat op deze wijze in de Technische Commissie is vertegenwoordigd wordt hierna „lid” van de Technische Commissie genoemd. Vertegenwoordigers van leden van de Technische Commissie kunnen tijdens vergaderingen van de Technische Commissie door adviseurs worden bijgestaan. Het Secretariaat van de WTO kan deze vergaderingen ook als waarnemer bijwonen.

• 5. De Leden van de IDR die geen Leden van de WTO zijn kunnen de vergaderingen van de Technische Commissie bijwonen en daartoe een vertegenwoordiger en een of meer plaatsvervangende vertegenwoordigers aanwijzen. Deze vertegenwoordigers zijn op de vergaderingen van de Technische Commissie als waarnemer aanwezig.

• 6. Onder voorbehoud van de goedkeuring van de Voorzitter van de Technische Commissie, kan de Secretaris-generaal van de IDR (hierna „Secretaris-generaal” genoemd) vertegenwoordigers van regeringen uitnodigen die noch Lid zijn van de WTO noch van de IDR en vertegenwoordigers van internationale overheids- en handelsorganisaties om vergaderingen van de Technische Commissie als waarnemer bij te wonen.

• 7. De namen van vertegenwoordigers, plaatsvervangend vertegenwoordigers en adviseurs die zijn aangewezen om de vergaderingen van de Technische Commissie bij te wonen worden de Secretaris-generaal medegedeeld.

Vergaderingen

• 8. De Technische Commissie komt bijeen wanneer dit nodig is, doch ten minste één maal per jaar.

Procedures

• 9. De Technische Commissie kiest haar eigen Voorzitter en stelt haar eigen procedures vast.

Bijlage II. GEMEENSCHAPPELIJKE VERKLARING OVER PREFERENTIËLE OORSPRONGSREGELS

• 1. Erkennende dat sommige Leden preferentiële oorsprongsregels toepassen die van niet-preferentiële oorsprongsregels verschillen, komen de Leden als volgt overeen.

• 2. In de zin van deze gemeenschappelijke verklaring zijn preferentiële oorsprongsregels wetten, verordeningen en bestuursrechtelijke bepalingen van algemene gelding die een Lid toepast om vast te stellen of goederen op grond van contractuele of autonome handelsregelingen voor een preferentiële behandeling in aanmerking komen, hetgeen inhoudt dat tariefpreferenties worden toegekend die verder gaan dan de toepassing van lid 1 van artikel 1 van de GATT 1994.

• 3. De Leden komen overeen erop toe te zien dat:

  • a. wanneer zij bestuursrechtelijke bepalingen van algemene gelding vaststellen, de eisen waaraan moet worden voldaan duidelijk zijn omschreven. Met name:

    • i. bij toepassing van het criterium van verandering van tariefindeling, moet in de preferentiële oorsprongsregel, en eventuele uitzonderingen daarop, duidelijk de onderverdelingen of posten van de tariefnomenclatuur zijn aangegeven waarop deze regel van toepassing is;

    • ii. bij toepassing van het criterium van het ad-valorem-percentage, moet de wijze van berekening van dit percentage in de preferentiële oorsprongsregels worden aangegeven;

    • iii. bij toepassing van het criterium van het fabricage- of bewerkingsproces, moet het proces waardoor preferentiële oorsprong wordt verkregen nauwkeurig zijn omschreven;

  • b. hun preferentiële oorsprongsregels op positieve criteria zijn gebaseerd. Preferentiële oorsprongsregels die aangeven waardoor de preferentiële oorsprong niet wordt verkregen (negatieve criteria) zijn toelaatbaar als onderdeel van een uitleg over positieve criteria of in bepaalde gevallen waarin een positieve bepaling van de preferentiële oorsprong niet noodzakelijk is;

  • c. hun wetten, verordeningen, rechterlijke besluiten en bestuursrechtelijke voorschriften van algemene gelding betreffende preferentiële oorsprongsregels worden gepubliceerd alsof lid 1 van Artikel X van de GATT 1994 daarop van toepassing was en zij daarmee in overeenstemming waren;

  • d. wanneer een exporteur, importeur of een persoon met een rechtmatig belang hierom verzoekt, zo spoedig mogelijk, en in ieder geval binnen de 150 dagen271 na de ontvangst van dit verzoek, verklaringen worden afgegeven over de preferentiële oorsprong die zij een produkt zouden toekennen, mits alle nodige gegevens zijn verstrekt. Verzoeken om dergelijke verklaringen worden aanvaard voordat de handel in de betrokken goederen aanvangt en kunnen steeds later worden aanvaard. De verklaringen blijven drie jaar geldig, voor zover de feiten en voorwaarden, met inbegrip van de preferentiële oorsprongsregels waarop ze zijn gebaseerd, vergelijkbaar blijven. Mits de betrokkenen hiervan van tevoren in kennis worden gesteld, zijn de verklaringen niet meer geldig wanneer als gevolg van een een onder f. bedoeld beroep een besluit is genomen dat met de verklaring strijdig is. De verklaringen worden bekend gemaakt onder voorbehoud van het bepaalde onder g.;

  • e. wanneer zij hun preferentiële oorsprongsregels wijzigen of nieuwe oorsprongsregels invoeren, dit niet met terugwerkende kracht geschiedt zoals bepaald in en overeenkomstig hun wetten en verordeningen;

  • f. tegen bestuursrechtelijke maatregelen die zij nemen op het gebied van de vaststelling van de preferentiële oorsprong onmiddellijk een beroep kan worden ingesteld of een procedure aangespannen bij een rechterlijke instantie, een arbitragetribunaal of administratieve instantie, onafhankelijk van de autoriteit die de vaststelling heeft gedaan en die de vaststelling kan wijzigen of nietig verklaren;

  • g. alle informatie van vertrouwelijke aard of die met het oog op de toepassing van de preferentiële oorsprongsregels op vertrouwelijke basis wordt verstrekt, als strikt vertrouwelijk wordt behandeld door de betrokken autoriteiten, die deze niet bekend zullen maken zonder de uitdrukkelijke toestemming van de persoon of de regering die deze informatie heeft verstrekt, tenzij mededeling ervan noodzakelijk is in het kader van een gerechtelijke procedure.

• 4. De Leden komen overeen het Secretariaat zo spoedig mogelijk hun preferentiële-oorsprongsregels te doen toekomen, met inbegrip van een lijst van de preferentiële regelingen die zij toepassen, van de rechterlijke besluiten en bestuursrechtelijke voorschriften van algemene gelding betreffende de preferentiële oorsprongsregels die op de dag van inwerkingtreding van de WTO-Overeenkomst voor het betrokken Lid van kracht zijn. Voorts komen de Leden overeen dat zij wijzigingen op hun preferentiële oorsprongsregels of nieuwe oorsprongsregels zo spoedig mogelijk aan het Secretariaat zullen mededelen. Lijsten van ontvangen inlichtingen die bij het Secretariaat beschikbaar zijn worden door het Secretariaat aan alle Leden toegezonden.

Overeenkomst inzake procedures op het gebied van invoervergunningen

De Leden,

Uit hoofde van de multilaterale handelsbesprekingen;

Geleid door de wens de doelstellingen van de GATT 1994 na te streven;

Met inachtneming van de bijzondere behoeften van de Leden die ontwikkelingslanden zijn op het gebied van handel, ontwikkeling en financiën;

Erkennende dat automatische invoervergunningen voor bepaalde doeleinden nuttig zijn en dat zij niet zouden moeten worden gebruikt om het handelsverkeer te beperken;

Erkennende dat invoervergunningen kunnen worden gebruikt om maatregelen te beheren zoals die welke krachtens de desbetreffende bepalingen van de GATT 1994 zijn aangenomen;

Rekening houdend met de bepalingen van de GATT 1994 die van toepassing zijn op de procedures op het gebied van invoervergunningen;

Geleid door de wens ervoor te zorgen dat de procedures op het gebied van invoervergunningen niet in strijd met de beginselen en verplichtingen van de GATT 1994 worden gebruikt;

Beseffend dat het verloop van de internationale handel kan worden belemmerd door het onjuiste gebruik van de procedures op het gebied van invoervergunningen;

Ervan overtuigd dat invoervergunningen, met name niet-automatische invoervergunningen, op een doorzichtige en voorspelbare manier dienen te worden toegepast;

Beseffend dat niet-automatische procedures op het gebied van vergunningen in administratief opzicht niet omslachtiger mogen zijn dan absoluut nodig is voor het beheer van de desbetreffende maatregel te beheren;

Geleid door de wens de in de internationale handel gebruikte administratieve procedures en gebruiken te vereenvoudigen en doorzichtig te maken alsmede erop toe te zien dat deze procedures en gebruiken op eerlijke en billijke wijze worden toegepast en beheerd;

Geleid door de wens te voorzien in de instelling van een overlegmechanisme en in de snelle, doeltreffende en rechtvaardige beslechting van de geschillen die zich in het kader van deze Overeenkomst kunnen voordoen,

Zijn het volgende overeengekomen:

Artikel 1. Algemene bepalingen

• 1 Voor de toepassing van deze Overeenkomst wordt onder formaliteiten inzake invoervergunningen verstaan de administratieve procedures 272 die worden gebruikt voor de toepassing van regelingen inzake invoervergunningen waarvoor als voorwaarde voor de invoer op het douanegebied van het importerend lid wordt gesteld dat aan de bevoegde administratieve instantie een aanvraag of andere documenten (verschillend van de voor douanedoeleinden benodigde documenten) worden voorgelegd.

• 2 De Leden zien erop toe dat de administratieve procedures die worden gebruikt voor de tenuitvoerlegging van de regelingen inzake invoervergunningen in overeenstemming zijn met de desbetreffende bepalingen van de GATT 1994, de bijlagen en protocollen daarvan, zoals die door deze Overeenkomst worden uitgelegd, ten einde eventuele uit een onjuiste toepassing van deze procedures voortvloeiende distorsies van de handelsstromen te voorkomen, zulks met inachtneming van de doelstellingen inzake economische ontwikkeling en de behoeften op het gebied van financiën en handel van de Leden die ontwikkelingslanden zijn.273

• 3 De voorschriften betreffende de procedures op het gebied van invoervergunningen zijn wat de toepassing ervan betreft, neutraal en worden op eerlijke en billijke wijze beheerd.

• 4

  • a. De voorschriften en alle inlichtingen betreffende de procedures voor de indiening van aanvragen, met inbegrip van de voorwaarden waaronder personen, ondernemingen of instellingen in aanmerking komen om zulke aanvragen in te dienen, alsmede de lijsten van produkten waarvoor een vergunning is vereist, worden bekendgemaakt in de bronnen waarvan kennisgeving is gedaan aan de Commissie voor invoervergunningen als bedoeld in artikel 4 (in deze Overeenkomst „de Commissie” genoemd) opdat de regeringen274 en handelaren hiervan kennis kunnen nemen. Deze bekendmaking moet, wanneer zulks doenlijk is, 21 dagen vóór de datum waarop het voorschrift ingaat en alleszins niet na die datum plaatsvinden. Alle uitzonderingen op, afwijkingen van of wijzigingen in hetzij de voorschriften betreffende de procedures op het gebied van invoervergunningen, hetzij de lijsten van produkten waarvoor een invoervergunning is vereist, worden eveneens op dezelfde wijze en binnen bovenvermelde termijn bekendgemaakt. Exemplaren van deze bekendmakingen worden eveneens ter beschikking gesteld van het Secretariaat.

  • b. Leden die schriftelijk opmerkingen wensen te maken worden indien zij daarom verzoeken, in de gelegenheid gesteld deze opmerkingen te bespreken. Het betrokken Lid dient terdege rekening te houden met deze opmerkingen en met de resultaten van de bespreking.

• 5 De aanvraagformulieren en, in voorkomend geval, de vernieuwingsformulieren zijn zo eenvoudig mogelijk. Bij de aanvraag kan worden verzocht om documenten en inlichtingen die absoluut noodzakelijk worden geacht voor de goede werking van de regeling inzake vergunningen.

• 6 De aanvraagprocedures en, in voorkomend geval, de vernieuwingsprocedures zijn zo eenvoudig mogelijk. De aanvragers beschikken over een redelijke termijn voor de indiening van de vergunningaanvragen. Indien er een uiterste datum is vastgesteld dient die termijn ten minste 21 dagen te bedragen met de mogelijkheid om de termijn te verlengen in gevallen waarin er binnen die termijn onvoldoende aanvragen zijn ontvangen. De aanvragers dienen zich voor een aanvraag slechts tot één administratieve instantie te wenden. Indien de aanvragers zich tot meer dan één administratieve instantie moeten wenden mag dit aantal niet hoger liggen dan drie.

• 7 Geen enkele aanvraag wordt afgewezen op grond van kleine vergissingen in de documentatie waardoor de daarin verstrekte basisgegevens niet worden gewijzigd. Voor verzuimen of vergissingen die kennelijk zonder frauduleuze bedoeling of niet door ernstige nalatigheid in de documenten of in de procedures zijn geslopen worden geen hogere boetes opgelegd dan bij wijze van waarschuwing alleen nodig is.

• 8 Met een vergunning ingevoerde goederen worden niet afgewezen op grond van kleine variaties in waarde, hoeveelheid of gewicht ten opzichte van de op de vergunning vermelde cijfers, zulks ten gevolge van verschillen die tijdens het vervoer zijn ontstaan, verschillen in verband met de verlading van de goederen als stortgoed dan wel andere kleine verschillen die verenigbaar zijn met normale handelsgebruiken.

• 9 De deviezen die nodig zijn voor de betaling van met een vergunning ingevoerde goederen worden op dezelfde basis ter beschikking gesteld van de houders van invoervergunningen als van de importeurs van goederen waarvoor geen invoervergunning is vereist.

• 10 Ten aanzien van de uitzonderingen om redenen van veiligheid zijn de bepalingen van artikel XXI van de GATT 1994 van toepassing.

• 11 De bepalingen van deze Overeenkomst verplichten de Leden er niet toe vertrouwelijke inlichtingen te onthullen waarvan de verspreiding een belemmering zou vormen voor de toepassing van de wetgeving, strijdig zou zijn met het openbaar belang of afbreuk zou doen aan de rechtmatige handelsbelangen van openbare of particuliere ondernemingen.

Artikel 2. Automatische invoervergunningen275

• 1 Onder automatische invoervergunningen worden invoervergunningen verstaan die op aanvraag in alle gevallen worden toegekend en die in overeenstemming zijn met de voorschriften van lid 2, sub a..

• 2 Naast artikel 1, leden 1 tot en met 11 en artikel 2, lid 1, zijn de volgende bepalingen276 van toepassing op de procedures inzake automatische invoervergunningen:

  • a. de procedures inzake automatische invoervergunningen worden niet zodanig beheerd dat zij restrictieve gevolgen hebben voor de invoer waarvoor een automatische vergunning geldt. Automatische invoervergunningen worden geacht een beperkende invloed te hebben op de handel, tenzij, onder meer:

    • i. alle personen, ondernemingen of instellingen die voldoen aan de door het importerend Lid voorgeschreven wettelijke voorwaarden om invoerhandelingen met betrekking tot de aan een automatische invoervergunning onderworpen produkten te verrichten, gelijkelijk in aanmerking komen om invoervergunningen aan te vragen en te verkrijgen;

    • ii. de aanvragen voor invoervergunningen op elke werkdag vóór de inklaring van de goederen kunnen worden ingediend;

    • iii. de naar behoren en in hun geheel ingediende aanvragen voor invoervergunningen onmiddellijk na ontvangst worden goedgekeurd voor zover dat in administratief opzicht mogelijk is en in ieder geval binnen een maximumtermijn van tien werkdagen;

  • b. de Leden erkennen dat automatische invoervergunningen noodzakelijk kunnen zijn wanneer er geen andere passende procedures bestaan. De automatische invoervergunningen kunnen gehandhaafd blijven zolang de omstandigheden die aan de invoering ervan ten grondslag liggen blijven bestaan of zolang de fundamentele administratieve doelstellingen ervan niet op passender wijze kunnen worden verwezenlijkt.

Artikel 3. Niet-automatische invoervergunningen

• 1 Naast artikel 1, leden 1 tot en met 11, zijn de volgende bepalingen van toepassing op de procedures inzake niet-automatische invoervergunningen. Onder niet-automatische invoervergunningen worden invoervergunningen verstaan die niet onder de definitie in artikel 2, lid 1, vallen.

• 2 Niet-automatische invoervergunningen mogen voor de invoerhandel geen restrictieve noch verstorende gevolgen hebben naast die welke door de instelling van de beperking worden veroorzaakt. Niet-automatische invoervergunningen moeten wat hun toepassingsgebied en duur betreft beantwoorden aan de maatregel waarvan zij de toepassing beogen en mogen in administratief opzicht niet omslachtiger zijn dan absoluut nodig is voor het beheer van de maatregel.

• 3 In het geval van vergunningvoorwaarden voor andere doeleinden dan de toepassing van kwantitatieve beperkingen, publiceren de Leden voldoende informatie opdat de andere Leden en handelaren zouden weten op welke basis de vergunningen zijn toegekend en/of toegewezen.

• 4 Wanneer een Lid personen, ondernemingen of instellingen in de mogelijkheid stelt uitzonderingen op of afwijkingen van vergunningvoorwaarden aan te vragen, dient het Lid dit te vermelden in de overeenkomstig artikel 1, lid 4, gepubliceerde inlichtingen en mede te delen hoe een dergelijke aanvraag moet worden ingediend en, voor zover mogelijk, onder welke omstandigheden de verzoeken in aanmerking kunnen worden genomen.

• 5

  • a. De leden verstrekken op verzoek van elk Lid dat belang heeft bij de handel in het betrokken produkt, alle dienstige inlichtingen betreffende:

    • i. de toepassing van de beperkingen;

    • ii. de tijdens een recente periode toegekende invoervergunningen;

    • iii. de verdeling van deze vergunningen tussen de leverende landen;

    • iv. wanneer zulks doenlijk is, invoerstatistieken (d.w.z. waarde en/of omvang) betreffende de produkten waarvoor een invoervergunning is vereist. Van de Leden die ontwikkelingslanden zijn wordt niet verwacht dat zij uit dien hoofde extra administratieve of financiële lasten op zich nemen;

  • b. de Leden die door middel van vergunningen contingenten beheren, delen de totale omvang en/of de totale waarde van de toe te passen contingenten mede, alsook de begin- en einddata daarvan en elke wijziging ter zake, binnen de in artikel 1, lid 4, vermelde termijnen en op zulke wijze dat de regeringen en handelaren hiervan kennis kunnen nemen;

  • c. in het geval van tussen de leverende landen verdeelde contingenten stelt het Lid dat de beperking toepast alle andere Leden die belang hebben bij de levering van het betrokken produkt onverwijld in kennis van het aandeel van het contingent, uitgedrukt in omvang of waarde, dat voor de lopende periode aan de verschillende leverende landen is toegekend en publiceert het deze inlichtingen binnen de in artikel 1, lid 4, vermelde termijnen en op zulke wijze dat de regeringen en handelaren hiervan kennis kunnen nemen;

  • d. wanneer de openingsdatum van de contingenten als gevolg van de situatie moet worden vervroegd, moeten de in artikel 1, lid 4, bedoelde inlichtingen binnen de in artikel 1, lid 4, vermelde termijnen worden gepubliceerd en op zulke wijze dat de regeringen en handelaren hiervan kennis kunnen nemen;

  • e. alle personen, ondernemingen of instellingen die voldoen aan de door het importerend Lid voorgeschreven wettelijke en administratieve voorwaarden komen gelijkelijk in aanmerking om invoervergunningen aan te vragen en te verlangen dat hun aanvragen in overweging worden genomen. Indien een aanvraag voor een vergunning niet wordt ingewilligd, wordt de reden daarvan op verzoek bekendgemaakt aan de aanvrager die overeenkomstig de nationale wetgeving of procedures van het invoerend Lid recht van beroep of van herziening heeft;

  • f. de termijn voor de behandeling van aanvragen is, behalve wanneer dit niet mogelijk is om redenen buiten de wil van het Lid, niet langer dan 30 dagen indien de aanvragen worden onderzocht wanneer zij worden ontvangen, d.w.z. in de volgorde waarin zij binnenkomen, en niet langer dan 60 dagen indien alle aanvragen tegelijk worden onderzocht. In laatstgenoemd geval wordt de periode voor de behandeling van de aanvragen geacht aan te vangen op de dag volgend op de einddatum van de voor de indiening van de aanvragen aangekondigde termijn;

  • g. de geldigheidsduur van de invoervergunningen is redelijk en niet zo kort dat de invoer hierdoor wordt belemmerd. De invoer uit verre landen mag hierdoor niet worden belemmerd, behalve in speciale gevallen waarin de invoer noodzakelijk is om te voorzien in onverwachte behoeften op korte termijn;

  • h. bij het beheer van de contingenten verhinderen de Leden niet dat de invoer overeenkomstig de afgegeven invoervergunningen wordt verricht en trachten zij niet volledige gebruik van de contingenten tegen te gaan;

  • i. bij de afgifte van invoervergunningen houden de Leden rekening met de wenselijkheid invoervergunningen af te geven die overeenkomen met in economisch opzicht belangrijke hoeveelheden produkten;

  • j. bij de verdeling van de invoervergunningen moeten de Leden rekening houden met de vroegere door de aanvrager verrichte invoer. In dit verband dient rekening te worden gehouden met het feit of de in het verleden aan de aanvragers afgegeven vergunningen volledig zijn gebruikt tijdens een recente referentieperiode. In de gevallen waarin de vergunningen niet volledig zijn gebruikt, onderzoekt het Lid de redenen daarvoor en houdt rekening met die redenen bij de verdeling van nieuwe vergunningen. Er dient ook te worden op toegezien dat een redelijke toewijzing van invoervergunningen aan nieuwe importeurs plaatsvindt, zulks met inachtneming van de wenselijkheid om invoervergunningen af te geven die overeenkomen met in economisch opzicht belangrijke hoeveelheden produkten. In dit verband dient speciale aandacht te worden geschonken aan de importeurs die produkten van oorsprong uit Leden die ontwikkelingslanden zijn, met name Leden die minstontwikkelde landen zijn, importeren;

  • k. in het geval van door middel van invoervergunningen beheerde contingenten die niet tussen die leverende landen worden verdeeld, hebben de houders van een invoervergunning277 de vrije keuze van de invoerbron. In geval van tussen de leverende landen verdeelde contingenten vermeldt de vergunning duidelijk het land of de landen;

  • l. bij de toepassing van de bepalingen van artikel 1, lid 8, kunnen de toekomstige verdelingen van invoervergunningen worden aangepast ter compensatie van die invoer die het vroegere niveau van de vergunningen overschrijdt.

Artikel 4. Instellingen

Hierbij wordt een Commissie Invoervergunningen ingesteld, bestaande uit vertegenwoordigers van elk der Leden. De Commissie kiest haar voorzitter en vice-voorzitter en komt zo vaak noodzakelijk is bijeen om de Leden in de gelegenheid te stellen overleg te plegen over alle vraagstukken met betrekking tot de toepassing van deze Overeenkomst of de bevordering van de doelstellingen ervan.

Artikel 5. Kennisgeving

• 1 Leden die vergunningprocedures instellen of wijzigingen in die procedures aanbrengen stellen de Commissie daarvan in kennis binnen 60 dagen te rekenen vanaf de bekendmaking.

• 2 De kennisgevingen van het instellen van procedures op het gebied van invoervergunningen moeten de volgende inlichtingen bevatten:

  • a. een lijst van de aan de vergunningprocedures onderworpen produkten;

  • b. de persoon of dienst waarbij inlichtingen kunnen worden verkregen over de ontvankelijkheidscriteria;

  • c. de administratieve instantie of instanties waarbij de aanvragen moeten worden ingediend;

  • d. de datum en naam van de publikatie waarin de procedures inzake vergunningen zijn bekendgemaakt;

  • e. de vermelding of de procedure inzake vergunningen automatisch dan wel niet-automatisch is, overeenkomstig de bepalingen in artikelen 2 en 3;

  • f. in het geval van automatische procedures inzake invoervergunningen hun administratief doel;

  • g. in het geval van niet-automatische procedures inzake invoervergunningen vermelding van de maatregel die door de procedure inzake vergunningen ten uitvoer wordt gelegd;

  • h. de verwachte duur van de procedure inzake vergunningen indien zij met enige zekerheid kan worden geschat en, indien dit niet mogelijk is, de reden waarom deze informatie niet kan worden verstrekt.

• 3 In de kennisgevingen van wijzigingen in de procedures op het gebied van invoervergunningen moeten de bovengenoemde elementen worden vermeld indien daarin wijzigingen zijn aangebracht.

• 4 De Leden delen aan de Commissie mee in welke publikatie(s) de in artikel 1, lid 4, gevraagde inlichtingen zullen worden bekendgemaakt.

• 5 Elk belanghebbend Lid dat van oordeel is dat een ander Lid van de instelling van een vergunningprocedure of van wijzigingen daarin geen kennisgeving heeft gedaan overeenkomstig de bepalingen van leden 1 tot en met 3 kan de zaak onder de aandacht van dat ander Lid brengen. Indien vervolgens niet terstond kennisgeving wordt gedaan, mag dit Lid zelf kennisgeving doen van de vergunningprocedure of van wijzigingen daarin, met inbegrip van alle ter zake dienende en beschikbare inlichtingen.

Artikel 6. Overleg en beslechting van geschillen

Het overleg en de beslechting van geschillen voor wat betreft elk vraagstuk met betrekking tot de toepassing van deze Overeenkomst vallen onder de procedures van de artikelen XXII en XXIII van de GATT 1994, als uitgewerkt in en ten uitvoer gelegd door het memorandum van overeenstemming inzake de beslechting van geschillen.

Artikel 7. Onderzoek

• 1 De Commissie stelt naargelang van de noodzaak, maar ten minste eenmaal per twee jaar, een onderzoek in naar de tenuitvoerlegging en de toepassing van deze Overeenkomst, zulks met inachtneming van de doelstellingen daarvan en de daarin vervatte rechten en verplichtingen.

• 2 Het Secretariaat stelt als basis voor het onderzoek door de Commissie een feitenverslag op aan de hand van de uit hoofde van artikel 5 verstrekte inlichtingen, de antwoorden op de jaarlijkse vragenlijst over procedures op het gebied van invoervergunningen278 en andere ter zake dienende betrouwbare inlichtingen waarover het beschikt. Dit verslag dient een samenvatting te bevatten van bovengenoemde inlichtingen, waarin met name alle wijzigingen of ontwikkelingen tijdens de beschouwde periode, met inbegrip van alle andere door de Commissie overeengekomen inlichtingen, zijn vermeld.

• 3 De Leden verbinden zich ertoe de jaarlijkse vragenlijst over procedures op het gebied van invoervergunningen onverwijld en volledig in te vullen.

• 4 De Commissie stelt de Raad voor de handel in goederen in kennis van de feiten die zich hebben voorgedaan gedurende de periode waarop dit onderzoek betrekking heeft.

Artikel 8. Slotbepalingen

Voorbehoud

• 1 Zonder toestemming van de andere Leden mag geen voorbehoud ten aanzien van de bepalingen van deze Overeenkomst worden gemaakt.

Interne wetgeving

• 2

  • a. Ieder Lid zorgt er uiterlijk op de datum waarop de WTO-Overeenkomst wat hem betreft in werking treedt, voor dat zijn wetten, regelingen en administratieve procedures in overeenstemming zijn met de bepalingen van deze Overeenkomst.

  • b. Ieder Lid stelt de Commissie in kennis van iedere wijziging in zijn wetten en regelingen met betrekking tot de bepalingen van deze Overeenkomst alsmede in de toepassing van deze wetten en regelingen.

Overeenkomst inzake subsidies en compenserende maatregelen

DEEL I. : ALGEMENE BEPALINGEN

Artikel 1. Definitie van een subsidie

• 1.1 Voor de toepassing van deze Overeenkomst wordt een subsidie geacht te bestaan indien:

  • a. 1. een overheid of een overheidsinstantie (in deze Overeenkomst „overheid” genoemd) een financiële bijdrage levert binnen het gebied van een Lid, dat wil zeggen, wanneer

    • i. een overheidspraktijk een directe overdracht van middelen (bijv. schenkingen, leningen en deelname in het maatschappelijk kapitaal), een mogelijke directe overdracht van middelen of een verbintenis (bijv. het garanderen van een lening) inhoudt;

    • ii. een overheid afstand doet van inkomsten die haar normaal toekomen of deze niet int (bijv. belastingmaatregelen zoals belastingkredieten279;

    • iii. een overheid andere goederen of diensten levert dan de algemene infrastructuur of goederen aankoopt;

    • iv. een overheid betalingen verricht aan een financieringsmechanisme of indien zij een particulier orgaan met een of meer van de onder i. tot en met iii. hierboven genoemde soorten functies belast die zij normalerwijze zelf vervult of indien zij het particuliere orgaan daartoe opdracht geeft, en de praktijk in werkelijkheid niet afwijkt van praktijken die overheden normalerwijze volgen;

    of

  • a. 2. indien er sprake is van enige vorm van bescherming van inkomen of steun aan prijzen in de zin van artikel XVI van de GATT 1994;

    en

  • b. indien hierdoor een voordeel wordt toegekend.

• 1.2 Het bepaalde in Deel II of in Deel III of V is uitsluitend van toepassing op een subsidie in de zin van lid 1 indien deze subsidie specifiek is in de zin van artikel 2.

Artikel 2. Specificiteit

• 2.1 Om te bepalen of een subsidie, als in artikel 1, lid 1, omschreven, specifiek is voor een onderneming of bedrijfstak of groep ondernemingen (in deze Overeenkomst „bepaalde ondernemingen” genoemd) binnen het rechtsgebied van de subsidieverlenende autoriteit zijn de volgende beginselen van toepassing:

  • a. Een subsidie is specifiek wanneer de subsidieverlenende autoriteit of de wetgeving op grond waarvan de subsidieverlenende autoriteit handelt, de mogelijkheid subsidie te verkrijgen uitdrukkelijk tot bepaalde ondernemingen beperkt.

  • b. Een subsidie is niet specifiek indien de subsidieverlenende autoriteit objectieve criteria of voorwaarden280 hanteert voor de toekenning van subsidies en de hoogte ervan, of indien zulke criteria of voorwaarden zijn neergelegd in de wetgeving op grond waarvan de subsidieverlenende autoriteit handelt, voor zover de toekenning dan automatisch is en de criteria en voorwaarden strikt in acht worden genomen. De criteria of voorwaarden moeten in de wetten, voorschriften of andere officiële documenten duidelijk zijn omschreven zodat controle mogelijk is.

  • c. Indien, ondanks het feit dat op grond van het bepaalde onder a. en b. er geen sprake lijkt te zijn van specificiteit, er toch redenen zijn om aan te nemen dat een subsidie specifiek is, kunnen andere factoren in aanmerking worden genomen, zoals gebruik van een subsidieregeling door een beperkt aantal bepaalde ondernemingen, overheersend gebruik door bepaalde ondernemingen, de toekenning van onevenredig hoge bedragen subsidie aan bepaalde ondernemingen en de wijze waarop de subsidieverlenende autoriteit bij het besluit subsidie te verlenen van haar discretionaire bevoegdheid gebruik maakt281. Bij de toepassing van deze alinea wordt rekening gehouden met de mate van diversificatie van de economische activiteiten binnen het rechtsgebied van de subsidieverlenende autoriteit en de tijd gedurende welke de subsidieregeling van kracht is.

• 2.2 Een subsidie die tot bepaalde ondernemingen in een afgebakend geografisch gebied binnen het rechtsgebied van een subsidieverlenende autoriteit is beperkt, is specifiek, met dien verstande dat de vaststelling of wijziging van algemeen geldende belastingtarieven door alle overheidsinstanties die daartoe zijn gerechtigd niet geacht wordt een specifieke subsidie te zijn in de zin van deze Overeenkomst.

• 2.3 Een subsidie waarop het bepaalde in artikel 3 van toepassing is, wordt geacht specifiek te zijn.

• 2.4 De vaststelling dat er sprake is van een specifieke subsidie op grond van het bepaalde in dit artikel, moet duidelijk met positief bewijsmateriaal zijn onderbouwd.

DEEL II. : VERBODEN SUBSIDIES

Artikel 3. Verbod

• 3.1 Behoudens het bepaalde in de Overeenkomst inzake Landbouw zijn de volgende subsidies, in de zin van artikel 1, verboden:

  • a. subsidies die, rechtens of in feite282, uitsluitend of onder meer van exportprestaties afhankelijk zijn, met inbegrip van de in Bijlage I genoemde subsidies283;

  • b. subsidies die uitsluitend of onder meer afhankelijk zijn van het gebruik van binnenlandse in plaats van ingevoerde goederen.

• 3.2 Een Lid mag de in lid 1 genoemde subsidies niet verlenen of in stand houden.

Artikel 4. Rechtsmiddelen

• 4.1 Indien een Lid redenen heeft om aan te nemen dat een verboden subsidie door een ander Lid wordt verleend of in stand gehouden, kan dit Lid om overleg met dit andere Lid verzoeken.

• 4.2 Een verzoek om overleg op grond van lid 1 bevat een opgave van het materiaal waaruit het bestaan en de aard van de betrokken subsidie zou blijken.

• 4.3 Het Lid waarvan wordt vermoed dat het de betrokken subsidie verleent of in stand houdt, gaat zo spoedig mogelijk op het in lid 1 bedoelde verzoek om overleg in. Dit overleg heeft ten doel de feitelijke situatie op te helderen en overeenstemming over een oplossing te bereiken.

• 4.4 Indien partijen binnen 30 dagen284 na het verzoek om overleg geen overeenstemming over een oplossing hebben bereikt, kan een Lid dat bij dit overleg partij is de zaak het Orgaan Geschillenbeslechting (hierna „DSB” (Dispute Settlement Body) genoemd) voorleggen ten einde onverwijld een panel te laten instellen, tenzij het DSB bij consensus besluit geen panel in te stellen.

• 4.5 Na te zijn ingesteld kan het panel verzoeken, bij het onderzoek of de betrokken maatregel een verboden subsidie is, te worden bijgestaan door de Permanente Groep Deskundigen285 (hierna „PGE” (Permanent Group of Experts) genoemd). De PGE onderzoekt desgevraagd de stukken waaruit het bestaan en de aard van de betrokken maatregel zou blijken en stelt het Lid dat deze maatregel toepast of handhaaft in de gelegenheid aan te tonen dat deze maatregel geen verboden subsidie is. De PGE deelt het panel binnen de door het panel vastgestelde termijn zijn conclusies mede. De conclusies van de PGE over het feit of de betrokken maatregel een verboden subsidie is worden door het panel zonder wijzigingen aanvaard.

• 4.6 Het panel legt zijn definitieve verslag voor aan de partijen bij het geschil. Het verslag wordt binnen 90 dagen na de instelling van het panel en de omschrijving van diens opdracht aan alle Leden toegezonden.

• 4.7 Is de conclusie dat de betrokken maatregel een verboden subsidie is, dan doet het panel de aanbeveling dat het subsidieverlenende Lid de subsidie onmiddellijk intrekt. Het panel geeft in zijn verslag de termijn aan waarbinnen de maatregel moet worden ingetrokken.

• 4.8 Het verslag van het panel wordt, binnen 30 dagen nadat het aan alle Leden is toegezonden, door het DSB aanvaard, tenzij een partij bij het geschil het DSB officieel van haar besluit in kennis stelt in beroep te gaan of het DSB bij consensus besluit het verslag niet goed te keuren.

• 4.9 Wordt tegen een verslag van het panel beroep aangetekend, dan deelt het Orgaan van Beroep zijn besluit mede binnen 30 dagen nadat de partij bij het geschil haar voornemen in beroep te gaan officieel heeft medegedeeld. Is het Orgaan van Beroep van oordeel dat het binnen 30 dagen geen verslag kan uitbrengen, dan deelt het het DSB schriftelijk de redenen daarvan mede onder opgave van de termijn waarbinnen het zijn verslag vermoedelijk zal uitbrengen. De procedure kan in geen geval langer dan 60 dagen duren. Het verslag van het Orgaan van Beroep wordt door het DSB goedgekeurd en door de partijen bij het geschil onvoorwaardelijk aanvaard, tenzij het DSB, binnen 20 dagen nadat het verslag aan de Leden is toegezonden286, bij consensus besluit het verslag van het Orgaan van Beroep niet goed te keuren.

• 4.10 Wordt de aanbeveling van de DSB niet opgevolgd binnen de door het panel aangegeven termijn die begint op de dag van goedkeuring van het verslag van het panel of van het Orgaan van Beroep, dan geeft het DSB het Lid dat de klacht heeft ingediend toestemming passende287 tegenmaatregelen te nemen, tenzij het DSB bij consensus besluit het verzoek af te wijzen.

• 4.11 Indien een partij bij een geschil om arbitrage verzoekt op grond van artikel 22, lid 6, van het Memorandum van Overeenstemming inzake de Beslechting van Geschillen („DSU” – Dispute Settlement Understanding), dan bepaalt de arbiter of de tegenmaatregelen passend zijn.

• 4.12 De termijnen voor de regeling van geschillen op grond van dit artikel bedragen de helft van de termijnen die bij de DSU voor de regeling van dergelijke geschillen zijn voorgeschreven, tenzij in dit artikel anders is bepaald.

DEEL III. : SUBSIDIES WAARTEGEN EEN ACTIE KAN WORDEN INGESTELD

Artikel 5. Schadelijke gevolgen

Een Lid mag, door het gebruik van een van de in artikel 1, leden 1 en 2, genoemde subsidies, de belangen van een ander Lid niet schaden, dat wil zeggen:

• a. de binnenlandse bedrijfstak van een ander Lid288 mag hierdoor geen schade lijden;

• b. de voordelen die andere Leden op grond van de GATT 1994 rechtstreeks of onrechtstreeks hebben gekregen, met name de voordelen die uit de geconsolideerde concessies van artikel II van de GATT 1994289 voortvloeien, mogen hierdoor niet worden teniet gedaan of uitgehold;

• c. de belangen van een ander Lid290 mogen hierdoor niet ernstig worden geschaad.

Dit artikel is niet van toepassing op subsidies die voor landbouwprodukten blijven gelden als in artikel 13 van de Overeenkomst inzake Landbouw bepaald.

Artikel 6. Ernstige schade

• 6.1 Van ernstige schade in de zin van artikel 5, onder c, wordt geacht sprake te zijn wanneer:

  • a. de totale, in waarde uitgedrukte subsidiëring291 van een produkt meer dan 5% bedraagt292;

  • b. subsidies zijn verleend om de exploitatieverliezen van een bedrijfstak te dekken;

  • c. subsidies zijn verleend om de exploitatieverliezen van een onderneming te dekken, andere dan éénmalige maatregelen die voor die onderneming niet kunnen worden herhaald en die slechts genomen worden in afwachting van oplossingen op lange termijn en om acute sociale problemen te voorkomen;

  • d. directe kwijtschelding van schulden, dat wil zeggen de kwijtschelding van schulden ten opzichte van de overheid en schenkingen om de terugbetaling van schulden te dekken293.

• 6.2 In afwijking van het bepaalde in lid 1 wordt geen ernstige schade vastgesteld indien het subsidieverlenende Lid aantoont dat de betrokken subsidie geen van de in lid 3 genoemde gevolgen heeft gehad.

• 6.3 Van ernstige schade in de zin van artikel 5, lid c., kan sprake zijn indien subsidieverlening een of meer van de volgende gevolgen heeft:

  • a. verdringing of verhindering van de invoer van een soortgelijk produkt van een ander Lid in het subsidieverlenende Lid;

  • b. verdringing of verhindering van de uitvoer van een soortgelijk produkt van een ander Lid uit een derde land;

  • c. een aanmerkelijke onderbieding door het gesubsidieerde produkt van de prijzen van het soortgelijke produkt van een ander Lid op dezelfde markt, of een aanmerkelijke verhindering van prijsverhogingen, prijsverlagingen of een daling van de omzet op dezelfde markt;

  • d. een toename van het wereldmarktaandeel van het subsidieverlenende Lid voor een grondstof of basisprodukt294 in vergelijking met het gemiddelde aandeel in de vorige periode van drie jaar, welke toename zich in de periode van subsidieverlening constant heeft ontwikkeld.

• 6.4 Voor de toepassing van lid 3, onder b., wordt onder verdringing of verhindering van de uitvoer ook verstaan de gevallen waarin, onder voorbehoud van het bepaalde in lid 7, is aangetoond dat er een wijziging van het relatieve marktaandeel is opgetreden ten nadele van het niet-gesubsidieerde soortgelijke produkt (over een representatieve periode die lang genoeg is om de ontwikkelingen op de markt voor het betrokken produkt te kunnen aantonen, welke periode in normale omstandigheden ten minste een jaar bedraagt). Onder „wijziging van het relatieve marktaandeel” wordt een van de volgende situaties verstaan:

  • a. een toename van het marktaandeel van het gesubsidieerde produkt;

  • b. een constant marktaandeel van het gesubsidieerde produkt in omstandigheden waarin, zonder subsidie, een verlies van marktaandeel zou zijn opgetreden;

  • c. een verlies van marktaandeel van het gesubsidieerde produkt, maar in een langzamer tempo dan zonder subsidie het geval zou zijn geweest.

• 6.5 Voor de toepassing van lid 3, onder c., wordt onder prijsonderbieding verstaan elk geval waarin prijsonderbieding is aangetoond door een vergelijking van de prijzen van het gesubsideerde produkt met de prijzen van een niet-gesubsidieerd produkt op dezelfde markt. De prijzen worden op hetzelfde handelsniveau vergeleken en op vergelijkbare tijdstippen, waarbij rekening wordt gehouden met alle factoren die op de vergelijkbaarheid van de prijzen van invloed zijn. Indien zulk een directe vergelijking niet mogelijk is, kan prijsonderbieding aan de hand van de exportwaarde per stuk worden aangetoond.

• 6.6 Wordt aangevoerd dat op de markt van een Lid ernstige schade is ontstaan, dan stelt dit Lid, onder voorbehoud van punt 3 van Bijlage V, de partijen bij een geschil waarop artikel 7 van toepassing is en het ingevolge artikel 7, lid 4, ingestelde panel, in kennis van alle ter zake dienende informatie over de wijziging van het marktaandeel van de partijen bij het geschil en de prijzen van het betrokken produkt.

• 6.7 Er is geen sprake van verdringing of verhindering van de in- of uitvoer zoals in lid 3 omschreven, wanneer zich in de betrokken periode een van de volgende omstandigheden voordoet295:

  • a. verbod op of beperking van de uitvoer van het soortgelijke produkt uit het Lid dat de klacht heeft ingediend of op de invoer uit dit Lid in het betrokken derde land;

  • b. besluit van een importerende overheid die een handelsmonopolie in het betrokken produkt bezit of in dat produkt staatshandel drijft de invoer uit het Lid dat de klacht heeft ingediend om niet-commerciële redenen te vervangen door de invoer uit een ander land of andere landen;

  • c. natuurrampen, stakingen, transportonderbrekingen of andere gevallen van overmacht die van aanzienlijke invloed zijn op de produktie, de kwaliteit, de kwantiteit of de prijzen van het produkt dat voor uitvoer uit het Lid dat de klacht heeft ingediend beschikbaar is;

  • d. het bestaan van regelingen tot beperking van de export uit het Lid dat de klacht heeft ingediend;

  • e. vrijwillige vermindering van de voor uitvoer beschikbare hoeveelheden van het betrokken produkt van het Lid dat de klacht heeft ingediend (met inbegrip, onder meer, van de situatie waarin bedrijven in het Lid dat de klacht heeft ingediend de uitvoer van dit produkt op autonome wijze naar nieuwe markten hebben toegeleid);

  • f. het niet in acht nemen van de normen en andere voorschriften van het importerende land.

• 6.8 Doen de in lid 7 genoemde omstandigheden zich niet voor, dan dient het bestaan van ernstige schade te worden vastgesteld op grond van de informatie die het panel is voorgelegd of die het heeft verkregen, met inbegrip van de gegevens die overeenkomstig het bepaalde in Bijlage V zijn voorgelegd.

• 6.9 Dit artikel is niet van toepassing op subsidies die voor landbouwprodukten gehandhaafd blijven overeenkomstig het bepaalde in artikel 13 van de Overeenkomst inzake Landbouw.

Artikel 7. Beroep

• 7.1 Onder voorbehoud van het bepaalde in artikel 13 van de Overeenkomst inzake Landbouw, kan een Lid dat redenen heeft om aan te nemen dat een in artikel 1 bedoelde subsidie door een ander Lid wordt verleend of in stand gehouden, waardoor zijn binnenlandse bedrijfstak schade lijdt, waardoor voordelen worden tenietgedaan of uitgehold, of waardoor het ernstige schade lijdt, kan dit Lid om overleg met dit andere Lid verzoeken.

• 7.2 Een verzoek om overleg op grond van lid 1 bevat een overzicht van het beschikbare bewijsmateriaal ten aanzien van a. het bestaan of de aard van de betrokken subsidie, en b. de schade die de binnenlandse bedrijfstak lijdt, de voordelen die worden teniet gedaan of uitgehold, of het feit dat de belangen van het Lid dat om overleg verzoekt ernstig worden geschaad.

• 7.3 Na het in lid 1 bedoelde verzoek om overleg pleegt het Lid waarvan wordt vermoed dat het de betrokken subsidie verleent of in stand houdt, zo spoedig mogelijk overleg. Dit overleg heeft ten doel de feitelijke situatie op te helderen en overeenstemming over een oplossing te bereiken.

• 7.4 Indien partijen binnen 60 dagen296 geen overeenstemming hebben bereikt over een oplossing, kan een Lid dat bij dit overleg partij is de zaak aan het DSB voorleggen ten einde onverwijld een panel te laten instellen, tenzij het DSB bij consensus besluit geen panel in te stellen. De samenstelling en de opdracht van het panel worden binnen 15 dagen na de datum van instelling vastgesteld.

• 7.5 Het panel onderzoekt de kwestie en legt zijn definitieve verslag voor aan de partijen bij het geschil. Het verslag wordt binnen 120 dagen na de samenstelling en de vaststelling van de opdracht van het panel aan alle Leden toegezonden.

• 7.6 Het verslag van het panel wordt, binnen 30 dagen nadat het aan alle Leden is toegezonden, door het DSB aanvaard, tenzij een partij bij het geschil het DSB officieel van haar besluit in kennis stelt in beroep te gaan of tenzij het DSB bij consensus besluit het verslag niet goed te keuren.

• 7.7 Wordt tegen een verslag van het panel beroep aangetekend, dan deelt het orgaan van beroep zijn besluit mede binnen 60 dagen nadat de partij bij het geschil haar voornemen in beroep te gaan officieel heeft medegedeeld. Is het orgaan van beroep van oordeel dat het binnen 60 dagen geen verslag kan uitbrengen, dan deelt het het DSB schriftelijk de redenen daarvan mede onder opgave van de termijn waarbinnen het zijn verslag denkt uit te brengen. De procedure mag in geen geval langer dan 90 dagen duren. Het verslag van het orgaan van beroep wordt door het DSB goedgekeurd en door de partijen bij het geschil onvoorwaardelijk aanvaard, tenzij het DSB, binnen 20 dagen nadat het verslag aan de Leden is toegezonden297, bij consensus besluit het verslag van het orgaan van beroep niet goed te keuren.

• 7.8 Wordt een verslag van het panel of van het orgaan van beroep – waarin is vastgesteld dat een subsidie de belangen van een ander Lid in de zin van artikel 5 schaadt – goedgekeurd, dan neemt het Lid dat deze subsidie verleent of in stand houdt passende maatregelen om een einde te maken aan de schadelijke gevolgen van de subsidie of trekt deze in.

• 7.9 Heeft het Lid binnen zes maanden nadat het DSB het verslag van het panel of het orgaan van beroep heeft goedgekeurd, geen passende maatregelen genomen om een einde te maken aan de schadelijke gevolgen van de subsidie of om deze in te trekken, dan geeft het DSB het Lid dat de klacht heeft ingediend, in afwezigheid van een compensatieregeling, toestemming tegenmaatregelen te nemen die evenredig zijn met de ernst en de aard van de schadelijke gevolgen, tenzij het DSB bij consensus besluit het verzoek af te wijzen.

• 7.10 Verzoekt een partij bij een geschil om arbitrage op grond van artikel 22, lid 6, van het Memorandum van Overeenstemming inzake de Beslechting van Geschillen („DSU” – Dispute Settlement Understanding), dan bepaalt de arbiter of de tegenmaatregelen evenredig zijn aan de ernst en de aard van de vastgestelde schadelijke gevolgen.

DEEL IV. : SUBSIDIES WAARTEGEN GEEN ACTIE KAN WORDEN INGESTELD

Artikel 8. Omschrijving

• 8.1 Tegen de volgende subsidies kan geen actie worden ingesteld298:

  • a. subsidies die niet specifiek zijn in de zin van artikel 2;

  • b. subsidies die specifiek zijn in de zin van artikel 2, maar die aan de onder 2a., 2b. en 2c. hieronder vermelde criteria voldoen.

• 8.2 In afwijking van het bepaalde in de delen III en V kunnen tegen de volgende subsidies geen acties worden ingesteld:

  • a. steun aan de onderzoekactiviteiten van bedrijven of van hoger-onderwijs- of onderzoekinstellingen die op contractbasis onderzoek voor bedrijven uitvoeren, indien299300301: de steun302 niet meer dan 75% van de kosten van industrieel onderzoek303 dekt of 50% van de kosten van pre-concurrentiële ontwikkeling304305;

    en voor zover deze steun uitsluitend beperkt is tot:

    • i. personeelskosten (onderzoekers, technici en ander ondersteunend personeel dat zich uitsluitend met onderzoek bezighoudt);

    • ii. kosten van apparatuur, uitrusting, land en gebouwen die uitsluitend en permanent (behalve indien ze op commerciële basis worden afgestaan) voor onderzoek worden gebruikt;

    • iii. kosten van advies en soortgelijke diensten die uitsluitend voor het onderzoek worden gebruikt, met inbegrip van aangekocht onderzoek, aangekochte technische kennis, octrooien, enz.:

    • iv. extra algemene kosten die rechtstreeks uit de onderzoekactiviteiten voortvloeien;

    • v. andere exploitatiekosten (zoals die van materieel, leveranties en dergelijke) die rechtstreeks uit de onderzoekactiviteiten voortvloeien.

  • b. steun aan achtergebleven regio's op het grondgebied van een Lid in het algemene kader van regionale ontwikkeling306 en die binnen de in aanmerking komende regio's niet-specifiek zijn (in de zin van artikel 2), voor zover dat:

    • i. elke achtergebleven regio een duidelijk afgebakende aaneengesloten geografische zone is met een duidelijke economische en administratieve identiteit;

    • ii. de regio als achtergebleven wordt beschouwd op grond van neutrale en objectieve criteria aan de hand waarvan kan worden vastgesteld dat de problemen van de regio niet slechts aan tijdelijke omstandigheden zijn te wijten; deze criteria moeten in wetten, voorschriften of andere officiële documenten duidelijk zijn omschreven, zodat ze gecontroleerd kunnen worden;

    • iii. de criteria een meting van de economische ontwikkeling inhouden die ten minste op een van de volgende factoren is gebaseerd:

      – hetzij het inkomen of het gezinsinkomen per hoofd van de bevolking, hetzij het BBP per hoofd van de bevolking, dat niet meer dan 85% mag bedragen van het gemiddelde op het betrokken grondgebied;

      – het werkloosheidspercentage dat ten minste 110% moet bedragen van het gemiddelde op het betrokken grondgebied;

    over een periode van drie jaar; deze berekening mag echter een gemengde zijn, waarbij met andere factoren rekening worden gehouden.

  • c. steun ter verbetering van de aanpassing van de bestaande uitrusting307 aan nieuwe milieu-eisen die bij de wet of anderzins zijn ingesteld, waardoor de bedrijven aan strengere eisen moeten voldoen en zij grotere financiële lasten moeten dragen, mits de steun:

    • i. een éénmalige maatregel is die niet wordt herhaald; en

    • ii. beperkt is tot 20% van de kosten van de aanpassing; en

    • iii. geen betrekking heeft op de vervangings- en exploitatiekosten van de gesteunde investering, welke kosten geheel en al door de bedrijven gedragen moeten worden; en

    • iv. rechtstreeks verband houdt met en evenredig is aan de vermindering van overlast en vervuiling die een bedrijf veroorzaakt en geen eventuele besparing op de produktiekosten dekt; en

    • v. beschikbaar is voor alle bedrijven die de nieuwe uitrusting installeren en/of de nieuwe produktieprocessen toepassen.

• 8.3 Overeenkomstig Deel VII wordt de Commissie in kennis gesteld van een subsidieregeling waarvoor op lid 2 een beroep wordt gedaan, voordat deze regeling van kracht wordt. De kennisgeving dient voldoende gegevens te bevatten om de Leden in staat te stellen te beoordelen of de regeling aan de voorwaarden en criteria van lid 2 voldoet. De leden zenden de Commissie elk jaar de laatste gegevens over de medegedeelde regeling toe, met name de totale uitgaven voor elke regeling en eventuele wijzigingen van de regeling. Andere Leden hebben het recht informatie te vragen over afzonderlijke gevallen van subsidieverlening op grond van een medegedeelde regeling308.

• 8.4 Op verzoek van een Lid onderzoekt het Secretariaat een kennisgeving die ingevolge lid 3 is gedaan en vraagt het zo nodig bij het subsidieverlenende Lid aanvullende inlichtingen op over deze regeling. Het Secretariaat brengt over zijn bevindingen verslag uit bij de Commissie. De Commissie onderzoekt desgevraagd zo spoedig mogelijk de bevindingen van het Secretariaat (of indien geen onderzoek door het Secretariaat werd aangevraagd, de kennisgeving zelf) ten einde vast te stellen of aan de voorwaarden en criteria van lid 2 is voldaan. De in dit lid omschreven procedure wordt ten laatste afgesloten op de eerste gewone vergadering van de Commissie na de kennisgeving van de subsidieregeling, mits ten minste twee maanden tussen deze kennisgeving en de gewone vergadering van de Commissie zijn verstreken. De in dit lid omschreven onderzoekprocedure is, op verzoek, ook van toepassing op aanmerkelijke wijzigingen van een regeling die zijn medegedeeld ter gelegenheid van de in lid 3 bedoelde jaarlijkse toezending van bijgewerkte gegevens.

• 8.5 Op verzoek van een Lid wordt de in lid 4 bedoelde vaststelling van de Commissie, of het niet doen van zulk een vaststelling door de Commissie alsmede de niet-naleving, in afzonderlijke gevallen, van de voorwaarden van een medegedeelde regeling, aan bindende arbitrage onderworpen. De arbitrage-instantie doet de Leden zijn conclusies toekomen binnen 120 dagen nadat de kwestie aan hem is voorgelegd. Tenzij in dit lid anders is bepaald, is de DSU van toepassing op de arbitrage waarin dit lid voorziet.

Artikel 9. Overleg en toegelaten rechtsmiddelen

• 9.1 Indien tijdens de uitvoering van een in artikel 8, lid 2, bedoelde regeling, ondanks het feit dat de regeling aan de daarin genoemde criteria voldoet, een Lid redenen heeft om aan te nemen dat deze regeling ernstige nadelige gevolgen heeft gehad voor zijn binnenlandse bedrijfstak, zodat moeilijk te herstellen schade is ontstaan, kan dit Lid om overleg verzoeken met het Lid dat de subsidie verleent of in stand houdt.

• 9.2 Na het verzoek om overleg ingevolge lid 1, pleegt het Lid dat de betrokken subsidieregeling toepast of in stand houdt zo spoedig mogelijk overleg. Dit overleg is erop gericht de feitelijke situatie op te helderen en tot een voor beide partijen aanvaardbare oplossing te komen.

• 9.3 Is tijdens het in lid 2 bedoelde overleg binnen 60 dagen na het verzoek hiertoe geen oplossing gevonden die voor beide partijen aanvaardbaar is, dan kan het Lid dat het overleg heeft aangevraagd de zaak aan de Commissie voorleggen.

• 9.4 De Commissie onderzoekt onmiddellijk de feiten van de zaak die haar is voorgelegd en het bewijsmateriaal ten aanzien van de in lid 1 bedoelde gevolgen. Indien de Commissie tot de conclusie komt dat deze gevolgen inderdaad aanwezig zijn, kan zij het subsidieverlenende Lid aanbevelen de regeling zo te wijzigen dat deze gevolgen zich niet meer doen gevoelen. De Commissie legt haar conclusies voor binnen de 120 dagen nadat de zaak haar, op grond van lid 3, is voorgelegd. Wordt de aanbeveling niet binnen de zes maanden opgevolgd, dan geeft de Commissie het Lid dat het verzoek heeft ingediend toestemming tegenmaatregelen te nemen die in overeenstemming zijn met de aard en de ernst van de vastgestelde gevolgen.

DEEL V. : COMPENSERENDE MAATREGELEN

Artikel 10. Toepassing van artikel VI van de GATT 1994309

De Leden nemen alle maatregelen om ervoor te zorgen dat de instelling van een compenserend recht310 op een produkt uit het gebied van een Lid dat in het gebied van een ander Lid wordt ingevoerd in overeenstemming met artikel VI van de GATT 1994 en de voorwaarden van onderhavige overeenkomst geschiedt. Compenserende rechten mogen slechts worden ingesteld nadat in overeenstemming met de bepalingen in deze overeenkomst en de Overeenkomst inzake Landbouw een onderzoek is geopend311 en verricht.

Artikel 11. Opening en uitvoering van het onderzoek

• 11.1 Behoudens het bepaalde in lid 6, wordt een onderzoek naar het bestaan, de hoogte en de gevolgen van een subsidie geopend naar aanleiding van een schriftelijk verzoek van of namens de binnenlandse bedrijfstak.

• 11.2 Een op grond van lid 1 ingediend verzoek dient voldoende bewijsmateriaal te bevatten over het bestaan van a. een subsidie en, zo mogelijk, de hoogte ervan, b. schade in de zin van artikel VI van de GATT 1994 zoals bij deze Overeenkomst geïnterpreteerd, en c. een oorzakelijk verband tussen de gesubsidieerde invoer en de schade die zou zijn geleden. Loutere beweringen die niet door bewijsmateriaal worden gesteund kunnen niet als toereikend in de zin van dit lid worden beschouwd. Het verzoek bevat de gegevens die de aanvrager redelijkerwijs bekend zijn, zoals:

  • i. de identiteit van de aanvrager en de hoeveelheid en waarde van het soortgelijke produkt dat hij in het binnenland vervaardigt. Wordt een schriftelijk verzoek namens de binnenlandse bedrijfstak ingediend, dan wordt de bedrijfstak namens welke het verzoek wordt ingediend daarin omschreven door middel van een lijst van alle gekende binnenlandse producenten van het soortgelijke produkt (of verenigingen van producenten van het soortgelijke produkt) en bevat dit, voor zover mogelijk, een opgave van de hoeveelheid en de waarde van de binnenlandse produktie van het door deze producenten vervaardigde soortgelijke produkt;

  • ii. een volledige beschrijving van het produkt dat met subsidie zou worden ingevoerd, de naam van het betrokken land of de betrokken landen van oorsprong of uitvoer, de identiteit van elke gekende exporteur of buitenlandse producent en een lijst van gekende importeurs van het betrokken produkt;

  • iii. stukken waaruit het bestaan, de hoogte en de aard van de betrokken subsidie blijkt;

  • iv. stukken waaruit blijkt dat de schade die de binnenlandse bedrijfstak door de gesubsidieerde invoer zou lijden door de subsidiëring wordt veroorzaakt; dit bewijsmateriaal omvat gegevens over de ontwikkeling van de omvang van de beweerdelijk gesubsidieerde invoer, de gevolgen van deze invoer voor de prijzen van het soortgelijke produkt op de binnenlandse markt en de weerslag van de invoer op de binnenlandse bedrijfstak, zoals uit factoren en indicatoren betreffende de situatie van de binnenlandse bedrijfstak blijkt, waaronder die welke in artikel 15, leden 2 en 4 zijn genoemd.

• 11.3 De autoriteiten controleren de juistheid en toereikendheid van de in het verzoek vervatte bewijsmateriaal ten einde vast te stellen of dit voldoende is om tot de opening van een onderzoek over te gaan.

• 11.4 Een onderzoek op grond van lid 1 wordt eerst geopend nadat de autoriteiten, aan de hand van een onderzoek naar de mate waarin het verzoek door de binnenlandse producenten van het soortgelijke produkt wordt gesteund312, hebben vastgesteld dat het verzoek door of namens de binnenlandse bedrijfstak is ingediend313. Het verzoek wordt geacht „door of namens de binnenlandse bedrijfstak” te zijn gedaan indien het gesteund wordt door de binnenlandse producenten wier gezamenlijke produktie meer dan 50% bedraagt van de totale produktie van het soortgelijke produkt dat vervaardigd wordt door dat deel van de binnenlandse bedrijfstak dat zich voor of tegen het verzoek heeft uitgesproken. Er wordt geen onderzoek geopend wanneer de binnenlandse producenten die het verzoek uitdrukkelijk steunen minder dan 25% vertegenwoordigen van de totale produktie van het soortgelijke produkt door de binnenlandse bedrijfstak.

• 11.5 De autoriteiten geven geen bekendheid aan het verzoek tot opening van een onderzoek voordat het besluit tot opening van het onderzoek is genomen.

• 11.6 Indien, in bijzondere omstandigheden, de betrokken autoriteiten besluiten een onderzoek te openen zonder daartoe een schriftelijk verzoek van of namens de binnenlandse bedrijfstak te hebben ontvangen, zetten zij de procedure slechts voort indien zij voldoende bewijs hebben over het bestaan van een subsidie, schade en oorzakelijk verband, als in lid 2 omschreven, om tot de opening van een onderzoek over te gaan.

• 11.7 Het bewijs ten aanzien van subsidie en schade wordt terzelfdertijd in overweging worden genomen a. bij het besluit al dan niet tot een onderzoek over te gaan en b. daarna, tijdens het onderzoek, dat niet later begint dan op de vroegste tijdstip waarop volgens de bepalingen van deze Overeenkomst voorlopige maatregelen mogen worden genomen.

• 11.8 Wanneer produkten niet rechtstreeks vanuit het land van oorsprong maar via een ander land in het importerende Lid worden ingevoerd, zijn de bepalingen van deze Overeenkomst volledig van toepassing en de transactie(s) word(t)(en) voor de toepassing van deze Overeenkomst geacht tussen het land van oorsprong en het importerende Lid te hebben plaatsgevonden.

• 11.9 Een verzoek op grond van lid 1 wordt afgewezen en een onderzoek beëindigd zodra de betrokken autoriteiten ervan overtuigd zijn dat het bewijsmateriaal inzake subsidiëring of schade niet voldoende is om de procedure voort te zetten. De procedure wordt onmiddellijk beëindigd indien de hoogte van de subsidie minimaal is of indien de werkelijke of potentiële hoeveelheid van het met subsidie ingevoerde produkt, of de schade, te verwaarlozen is. Voor de toepassing van dit lid wordt de subsidie geacht minimaal te zijn indien ze minder dan 1% van de waarde van het produkt bedraagt.

• 11.10 Een onderzoek mag de inklaringsprocedures van de douane niet verstoren.

• 11.11 Een onderzoek wordt, behoudens uitzonderlijke omstandigheden, binnen een jaar na de opening afgesloten en mag in geen geval langer dan 18 maanden duren.

Artikel 12. Bewijs

• 12.1 Belanghebbende Leden en alle andere belanghebbenden bij een onderzoek in verband met compenserende rechten worden in kennis gesteld van de informatie die de autoriteiten wensen te ontvangen en krijgen ruimschoots gelegenheid om het bewijsmateriaal dat zij voor het betrokken onderzoek van belang achten schriftelijk voor te leggen.

  • 12.1.1 Exporteurs, buitenlandse producenten en belanghebbende Leden die een vragenlijst ontvangen betreffende een onderzoek in verband met compenserende rechten beschikken over ten minste 30 dagen om de vragenlijst te beantwoorden314. Met redenen omklede verzoeken tot verlenging van de termijn van 30 dagen dienen in welwillende overweging te worden genomen, en dienen, voor zover dit praktisch mogelijk is, te worden ingewilligd.

  • 12.1.2 Onder voorbehoud van de verplichting tot bescherming van vertrouwelijke informatie, wordt bewijsmateriaal dat een belanghebbend Lid of belanghebbende partij schriftelijk heeft voorgelegd zo spoedig mogelijk ter beschikking gesteld van het andere belanghebbende Lid of de andere belanghebbende partijen die aan het onderzoek deelnemen.

  • 12.1.3 Zodra een onderzoek is geopend, doen de autoriteiten de volledige tekst van het ingevolge artikel 11, lid 1, ontvangen schriftelijke verzoek aan de gekende exporteurs315, en de autoriteiten van het exporterende Lid toekomen en stellen deze, op verzoek, ter beschikking van de andere betrokken belanghebbenden, met inachtneming van de verplichting tot bescherming van vertrouwelijke informatie, zoals in lid 4 bedoeld.

• 12.2 Belanghebbende Leden en partijen hebben, op een met redenen omkleed verzoek, het recht inlichtingen mondeling te verstrekken. Worden inlichtingen mondeling verstrekt, dan moeten de belanghebbende Leden en partijen deze vervolgens op schrift stellen. Een besluit van de met onderzoek belaste autoriteiten kan slechts gebaseerd zijn op inlichtingen en argumenten die zich in het dossier van deze autoriteiten bevinden en die de belanghebbende Leden en partijen die aan het onderzoek hebben deelgenomen ter beschikking stonden, waarbij echter rekening dient te worden gehouden met de noodzaak tot bescherming van vertrouwelijke gegevens.

• 12.3 De autoriteiten geven, voor zover praktisch mogelijk, alle belanghebbende Leden en partijen voldoende gelegenheid tot inzage in alle voor de presentatie van hun zaak relevante stukken die niet vertrouwelijk zijn in de zin van lid 4 en die de autoriteiten bij een onderzoek in verband met compenserende rechten gebruiken; zij geven deze belanghebbende Leden en partijen ook voldoende gelegenheid hun argumenten op grond van deze gegevens voor te leggen.

• 12.4 Inlichtingen die vanwege hun aard vertrouwelijk zijn (bijvoorbeeld omdat bekendmaking ervan een concurrent aanmerkelijk zou bevoordelen of omdat bekendmaking ervan ernstige nadelige gevolgen zou hebben voor de persoon die de informatie heeft verstrekt of voor de persoon van wie deze informatie is verkregen) of die door partijen bij een onderzoek als vertrouwelijk wordt verstrekt, worden, indien daarvoor geldige redenen worden opgegeven, als dusdanig door de autoriteiten behandeld. Dergelijke informatie kan niet worden bekendgemaakt zonder de uitdrukkelijke toestemming van degene die ze heeft verstrekt316.

  • 12.4.1 De autoriteiten vragen dat belanghebbende Leden of partijen die vertrouwelijke inlichtingen verstrekken daarvan een niet-vertrouwelijke samenvatting toezenden. Deze samenvattingen moeten gedetailleerd genoeg zijn om een redelijk inzicht te verschaffen in de essentie van de als vertrouwelijk medegedeelde gegevens. In buitengewone omstandigheden kunnen deze Leden of partijen aangeven dat deze inlichtingen niet kunnen worden samengevat. In dergelijke buitengewone omstandigheden moet worden aangegeven waarom het niet mogelijk is een samenvatting te verstrekken.

  • 12.4.2 Indien de autoriteiten van oordeel zijn dat een verzoek om vertrouwelijke behandeling niet gegrond is en degene die de inlichtingen heeft verstrekt niet bereid is deze bekend te maken of de bekendmaking ervan in algemene bewoordingen of in samengevatte vorm toe te staan, kunnen de autoriteiten deze informatie buiten beschouwing laten tenzij te hunnen genoegen uit goede bronnen blijkt dat de inlichtingen juist zijn317.

• 12.5 Behoudens in de in lid 7 bedoelde omstandigheden, controleren de autoriteiten in de loop van het onderzoek of de inlichtingen die belanghebbende Leden of partijen hebben verstrekt en waarop zij hun bevindingen baseren, juist zijn.

• 12.6 De met onderzoek belaste autoriteiten kunnen het onderzoek zo nodig op het grondgebied van andere Leden verrichten, mits zij het betrokken Lid hiervan tijdig in kennis stellen en dit Lid hiertegen geen bezwaar maakt. Voorts kunnen deze autoriteiten het onderzoek in de lokalen van een onderneming verrichten en de administratie van deze onderneming onderzoeken indien a. de onderneming hiervoor toestemming geeft, en b. het betrokken Lid hiervan in kennis is gesteld en daartegen geen bezwaar maakt. De in Bijlage VI omschreven procedures zijn van toepassing bij onderzoek in de lokalen van een onderneming. Onder voorbehoud van de verplichting tot bescherming van vertrouwelijke gegevens, stellen de autoriteiten de resultaten van het onderzoek ter beschikking van de ondernemingen waarop ze betrekking hebben, of zorgen zij ervoor dat deze resultaten aan deze ondernemingen ter beschikking worden gesteld, overeenkomstig lid 8. Ze kunnen deze resultaten ook de indieners van het verzoek ter beschikking stellen.

• 12.7 Indien een belanghebbend Lid of een belanghebbende partij binnen een redelijke termijn geen toegang verleent tot de noodzakelijke informatie of deze anderszins niet verstrekt, of het onderzoek aanmerkelijk belemmert, kunnen aan de hand van de beschikbare gegevens voorlopige en definitieve conclusies worden getrokken, zowel in positieve als in negatieve zin.

• 12.8 Voordat definitieve conclusies worden getrokken stellen de autoriteiten alle belanghebbende Leden en partijen in kennis van de voornaamste onderzochte feiten die aan het besluit tot het al dan niet nemen van definitieve maatregelen ten grondslag liggen. Deze kennisgeving moet tijdig genoeg gebeuren om alle partijen de gelegenheid te geven hun belangen te verdedigen.

• 12.9 Voor de toepassing van deze Overeenkomst wordt onder „belanghebbende partij” verstaan:

  • i. een exporteur of buitenlandse producent of de importeur van een produkt dat wordt onderzocht, of een vereniging van producenten of handelaars waarvan de meeste leden producenten, exporteurs of importeurs van dit produkt zijn; en

  • ii. een producent van het soortgelijke produkt in het importerende Lid of een vereniging van producenten of handelaars waarvan de meeste leden het soortgelijke produkt in het gebied van het importerende Lid produceren.

  Deze lijst belet niet dat Leden andere binnen- of buitenlandse partijen dan bovengenoemde als belanghebbende partij kunnen beschouwen.

• 12.10 Industriële gebruikers van het onderzochte produkt, representatieve consumentenorganisaties (wanneer het om produkten gaat die courant in de detailhandel worden verkocht) worden door de autoriteiten in de gelegenheid gesteld inlichtingen te verstrekken in verband met het onderzoek inzake subsidiëring, schade en oorzakelijk verband.

• 12.11 De autoriteiten houden rekening met de moeilijkheden die belanghebbende partijen, en met name kleine bedrijven, kunnen hebben om de gevraagde informatie te verstrekken en verlenen deze, voor zover praktisch mogelijk, hulp.

• 12.12 De hierboven omschreven procedures hebben niet ten doel de autoriteiten van een Lid te beletten zo snel mogelijk te handelen wat betreft het openen van een onderzoek, het trekken van voorlopige of definitieve conclusies in zowel positieve als negatieve zin, of het nemen van voorlopige of definitieve maatregelen, overeenkomstig de bepalingen van deze Overeenkomst.

Artikel 13. Overleg

• 13.1 Zo spoedig mogelijk nadat een verzoek ingevolge artikel 11 is aanvaard, en in ieder geval vóór de opening van een onderzoek, worden Leden waarvan de produkten onderzocht kunnen worden voor overleg uitgenodigd met het doel de situatie op te helderen ten aanzien van de in artikel 11, lid 2, bedoelde punten en om overeenstemming over een oplossing te bereiken.

• 13.2 Voorts krijgen de Leden waarvan de produkten worden onderzocht tijdens de gehele duur van het onderzoek redelijke gelegenheid om het overleg voort te zetten ten einde de feitelijke situatie op te helderen en overeenstemming over een oplossing te bereiken318.

• 13.3 Onverminderd de verplichting redelijke gelegenheid tot overleg te bieden, hebben deze bepalingen inzake overleg niet ten doel de autoriteiten van een Lid te beletten zo snel mogelijk, overeenkomstig de bepalingen van deze Overeenkomst, te handelen wat betreft het openen van een onderzoek, het trekken van voorlopige of definitieve conclusies in zowel positieve als negatieve zin, of het nemen van voorlopige of definitieve maatregelen.

• 13.4 Het Lid dat voornemens is een onderzoek uit te voeren of dat een onderzoek uitvoert geeft het Lid of de Leden waarvan de produkten worden onderzocht desgevraagd inzage in het niet-vertrouwelijke bewijsmateriaal, met inbegrip van de niet-vertrouwelijke samenvatting van vertrouwelijke gegevens die bij de opening of het verdere verloop van het onderzoek worden gebruikt.

Artikel 14. Berekening van de hoogte van een subsidie in termen van voordeel voor de ontvanger

Voor de toepassing van deel V wordt elke methode die de met onderzoek belaste autoriteit gebruikt voor de berekening van het voordeel in de zin van artikel 1, lid 1, dat de ontvanger verkrijgt in de nationale wetgeving of de uitvoeringsbepalingen van het betrokken Lid vastgelegd en de toepassing ervan in elk bijzonder geval dient transparant te zijn en voldoende nauwkeurig omschreven. Voorts dient deze methode in overeenstemming te zijn met de volgende regels:

• a. een participatie van de overheid aan het maatschappelijk kapitaal van een bedrijf wordt niet als het toekennen van een voordeel beschouwd, tenzij het investeringsbesluit niet kan worden beschouwd overeen te stemmen met normale investeringspraktijken (met inbegrip van het verstrekken van risicokapitaal) van particuliere investeerders op het grondgebied van dat Lid;

• b. het toekennen van een lening door de overheid wordt niet als het toekennen van een voordeel beschouwd, tenzij er een verschil is tussen het bedrag dat het leningontvangende bedrijf op de overheidslening betaalt en het bedrag dat het bedrijf voor een vergelijkbare commerciële lening zou betalen die het effectief op de markt kan verkrijgen. In dat geval is het voordeel het verschil tussen de twee bedragen;

• c. een geven van een garantie voor een lening door de overheid wordt niet als het toekennen van een voordeel beschouwd, tenzij er een verschil is tussen het bedrag dat het garantie-ontvangende bedrijf op een door de overheid gegarandeerde lening betaalt en het bedrag dat het bedrijf voor een vergelijkbare commerciële lening zonder overheidsgarantie zou betalen. In dat geval is het voordeel het verschil tussen de twee bedragen, gecorrigeerd voor eventuele verschillen in commissies;

• d. de levering van goederen of diensten of de aankoop van goederen door de overheid wordt niet als het toekennen van een voordeel beschouwd, tenzij de levering tegen een minder dan toereikende beloning plaatsvindt en de aankoop tegen een meer dan toereikende beloning. Of de beloning toereikend is wordt vastgesteld door een vergelijking te maken met de marktvoorwaarden voor de betreffende goederen of diensten in het land van levering of aankoop (waaronder prijs, kwaliteit, beschikbaarheid, verhandelbaarheid, transport en andere koop- of verkoopvoorwaarden).

Artikel 15. Vaststelling van schade319

• 15.1 Voor de toepassing van artikel VI van de GATT 1994 wordt de vaststelling van schade gebaseerd op positief bewijsmateriaal en houdt deze een objectief onderzoek in van a. de omvang van de gesubsidieerde invoer en de gevolgen daarvan voor de prijzen van het soortgelijke produkt320 op de binnenlandse markt, en b. de gevolgen van deze invoer voor de binnenlandse producenten van deze produkten.

• 15.2 Wat de omvang van de gesubsidieerde invoer betreft, gaan de met onderzoek belaste autoriteiten na of deze, in absolute cijfers dan wel in verhouding tot de produktie of het verbruik in het importerende Lid, aanzienlijk is toegenomen. Wat de weerslag van de gesubsidieerde invoer op de prijzen betreft, gaan de met onderzoek belaste autoriteiten na of er sprake is van een aanmerkelijke prijsonderbieding door het gesubsidieerde produkt ten opzichte van de prijzen van een soortgelijk produkt van het importerende Lid, of dat deze invoer op andere wijze de prijzen aanzienlijk drukt of prijsverhogingen die anders hadden plaatsgevonden belet, waarbij geen enkele noch meerdere van deze factoren noodzakelijkerwijs doorslaggevend zijn.

• 15.3 Wanneer de invoer van een produkt uit meer dan een land terzelfder tijd in verband met compenserende rechten wordt onderzocht, mogen de met onderzoek belaste autoriteiten de gevolgen van deze invoer uitsluitend cumulatief beoordelen indien zij vaststellen dat a. de hoogte van de subsidie voor het produkt uit elk land meer dan minimaal is als in artikel 11, lid 9, omschreven en de hoeveelheid die uit elk land wordt ingevoerd niet te verwaarlozen is, en b. een cumulatieve beoordeling van de gevolgen van de invoer gepast is gezien de concurrentieverhoudingen tussen de importprodukten onderling en tussen de importprodukten en het soortgelijke binnenlandse produkt.

• 15.4 Het onderzoek naar de gevolgen van de gesubsidieerde invoer voor de binnenlandse bedrijfstak omvat een beoordeling van alle relevante economische factoren en indicatoren die op de situatie van de bedrijfstak van invloed zijn, zoals de werkelijke en potentiële daling van produktie, omzet, marktaandeel, winst, produktiviteit, rendement op investeringen, bezettingsgraad; factoren die van invloed zijn op de binnenlandse prijzen; werkelijke en potentiële negatieve gevolgen voor cash flow, voorraden, werkgelegenheid, lonen, groei, mogelijkheden om kapitaal aan te trekken of investeringen, en, in het geval van de landbouw, of er een groeiende afhankelijkheid is van steunmaatregelen van de overheid. Deze lijst is niet limitatief, noch zijn of of meer van deze factoren noodzakelijkerwijs doorslaggevend.

• 15.5 Aangetoond moet worden dat de gesubsidieerde invoer, ten gevolge van de subsidies321, schade in de zin van deze Overeenkomst veroorzaakt. Het oorzakelijke verband tussen de gesubsidieerde invoer en de schade die de binnenlandse bedrijfstak lijdt, wordt aangetoond door middel van een onderzoek van alle relevante bewijsstukken waarover de autoriteiten beschikken. De autoriteiten onderzoeken ook alle andere gekende factoren dan de gesubsidieerde invoer die de binnenlandse bedrijfstak tegelijkertijd schade toebrengen en de schade die door deze andere factoren wordt veroorzaakt mag niet aan de gesubsidieerde invoer worden toegeschreven. Factoren die in dit verband relevant zijn, zijn onder andere de hoeveelheden en de prijzen van de niet-gesubsidieerde invoer van het betrokken produkt, een inkrimping van de vraag of wijzigingen in het consumentengedrag, handelsbeperkende maatregelen van en concurrentie tussen buitenlandse en binnenlandse producenten, technologische ontwikkelingen en de exportprestaties en produktiviteit van de binnenlandse bedrijfstak.

• 15.6 De gevolgen van de gesubsidieerde invoer worden beoordeeld in verhouding tot de binnenlandse produktie van het soortgelijke produkt wanneer het aan de hand van de beschikbare gegevens mogelijk is die produktie aan de hand van criteria zoals produktieproces, omzet en winst van de producenten duidelijk te onderscheiden. Indien het niet mogelijk is deze produktie te onderscheiden, worden de gevolgen van de gesubsidieerde invoer beoordeeld door de produktie te onderzoeken van de kleinste groep of serie produkten waartoe het soortgelijke produkt behoort en waarover de nodige gegevens kunnen worden verkregen.

• 15.7 De vaststelling dat er sprake is van dreigende aanmerkelijke schade is op feiten gebaseerd en niet op veronderstellingen, ramingen of vage mogelijkheden. De verandering van omstandigheden waardoor een situatie zou ontstaan waarin de subsidie schade veroorzaakt moet voor een nabije toekomst duidelijk zijn te voorzien. Om vast te stellen of er sprake is van dreigende aanmerkelijke schade, nemen de met onderzoek belaste autoriteiten onder meer de volgende factoren in aanmerking:

  • i. de aard van de betrokken subsidie of subsidies en de waarschijnlijke gevolgen daarvan voor de handel;

  • ii. de snelle groei van het aandeel van de gesubsidieerde importprodukten op de binnenlandse markt, wat erop wijst dat de invoer waarschijnlijk nog aanzienlijk zal toenemen;

  • iii. voldoende vrij beschikbare capaciteit van de exporteur, of een aanmerkelijke toename daarvan in de nabije toekomst waardoor het waarschijnlijk is dat de gesubsidieerde uitvoer naar de markt van het importerende Lid nog aanzienlijk zal toenemen, waarbij rekening moet worden gehouden met de beschikbaarheid van andere exportmarkten die de bijkomende voor export beschikbare hoeveelheden kunnen absorberen;

  • iv. of de produkten worden ingevoerd tegen prijzen die een aanmerkelijk druk op de binnenlandse prijzen zullen uitoefenen of die een stijging van deze prijzen duidelijk zullen verhinderen, en waardoor de vraag naar importprodukten nog zal toenemen;

  • v. de bestaande voorraden van het onderzochte produkt.

Geen enkele van deze factoren is noodzakelijkerwijs doorslaggevend, maar de in overweging genomen factoren tezamen moeten tot de conclusie leiden dat de gesubsidieerde invoer op korte termijn nog zal toenemen en dat deze invoer, tenzij beschermingsmaatregelen worden genomen, aanmerkelijke schade zal veroorzaken.

• 15.8 In de gevallen waarin de gesubsidieerde invoer schade dreigt te veroorzaken, wordt het besluit om compenserende maatregelen te nemen zorgvuldig overwogen.

Artikel 16. Omschrijving van het begrip „binnenlandse bedrijfstak”

• 16.1 In de zin van deze overeenkomst wordt onder „binnenlandse bedrijfstak”, behoudens het bepaalde in lid 2, de gezamenlijke binnenlandse producenten van de soortgelijke produkten verstaan of dat deel van de binnenlandse producenten wier gezamenlijke produktie van de produkten een groot deel van de totale binnenlandse produktie van die produkten uitmaakt. Indien het echter om producenten gaat die met exporteurs of importeurs gelieerd322 zijn of die zelf importeur zijn van het produkt dat met subsidie zou worden ingevoerd of van een soortgelijk produkt uit een ander land, kan onder „binnenlandse bedrijfstak” de overige producenten worden verstaan.

• 16.2 In buitengewone omstandigheden kan het grondgebied van een Lid, wat de betrokken produktie betreft, in twee of meer concurrerende markten worden verdeeld en kunnen de producenten binnen elke markt als een afzonderlijke bedrijfstak worden beschouwd indien a. de producenten binnen die markt hun gehele of vrijwel gehele produktie van het betrokken produkt op die markt verkopen, en b. aan de vraag op die markt niet in belangrijke mate wordt voldaan door elders op dat grondgebied gevestigde producenten van het betrokken produkt. In deze omstandigheden kan tot het bestaan van schade worden geconcludeerd zelfs indien een groot deel van de totale binnenlandse bedrijfstak geen schade lijdt, mits de gesubsidieerde invoer op deze afzonderlijke markt geconcentreerd is en de producenten van alle of vrijwel alle produkten op die markt door de gesubsidieerde invoer schade lijden.

• 16.3 Wanneer onder „binnenlandse bedrijfstak” de producenten in een bepaald gebied, namelijk de in lid 2 omschreven markt, wordt verstaan, worden de compenserende rechten slechts geheven op produkten die voor eindverbruik in dat gebied zijn bestemd. Staat de grondwet van het importerende Lid niet toe dat compenserende rechten op die basis worden geheven, dan mag het importerende Lid de compenserende rechten uitsluitend zonder beperking heffen indien a. de exporteurs de gelegenheid hebben gehad de export tegen gesubsidieerde prijzen naar het betrokken gebied stop te zetten of op grond van artikel 18 verbintenissen aan te bieden, maar dat zij deze bevredigende verbintenissen niet terstond hebben aangeboden, en b. deze rechten niet uitsluitend kunnen worden geheven op produkten van specifieke producenten die aan het betrokken gebied leveren.

• 16.4 Wanneer twee of meer landen overeenkomstig het bepaalde in artikel XXIV, lid 8, onder a. van de GATT 1994 zulk een niveau van integratie hebben bereikt dat zij de kenmerken van een enkele, eengemaakte markt hebben, wordt de bedrijfstak in het gehele geïntegreerde gebied beschouwd als de in de leden 1 en 2 bedoelde binnenlandse bedrijfstak.

• 16.5 Het bepaalde in artikel 15, lid 6, is van toepassing op dit artikel.

Artikel 17. Voorlopige maatregelen

• 17.1 Voorlopige maatregelen mogen uitsluitend worden toegepast indien:

  • a. een onderzoek is geopend overeenkomstig het bepaalde in artikel 11, hierover een bericht is gepubliceerd en belanghebbende Leden en partijen voldoende gelegenheid hebben gehad inlichtingen te verstrekken en opmerkingen te maken;

  • b. een voorlopige vaststelling is gedaan dat subsidie is toegekend en dat een binnenlandse bedrijfstak door de gesubsidieerde invoer schade lijdt of dreigt te lijden; en

  • c. de betrokken autoriteiten deze maatregelen noodzakelijk achten om te verhinderen dat tijdens de duur van het onderzoek schade wordt geleden.

• 17.2 Voorlopige maatregelen kunnen de vorm aannemen van voorlopige compenserende rechten waarvan de betaling gegarandeerd wordt door het storten van een geldsom of het stellen van een zekerheid ten belope van de voorlopig berekende subsidie.

• 17.3 Voorlopige maatregelen worden niet eerder genomen dan 60 dagen na de opening van het onderzoek.

• 17.4 De toepassing van voorlopige maatregelen worden tot een zo kort mogelijke periode beperkt, die ten hoogste vier maanden bedraagt.

• 17.5 Het bepaalde in artikel 15, lid 6, is van toepassing op dit artikel.

Artikel 18. Verbintenissen

• 18.1 Een procedure kan323 worden geschorst of beëindigd zonder dat voorlopige maatregelen worden genomen of compenserende rechten ingesteld, indien op vrijwillige basis bevredigende verbintenissen worden aangeboden op grond waarvan:

  • a. de overheid van het exporterende Lid ermee instemt de subsidie op te heffen of te beperken of andere maatregelen te nemen ten aanzien van de gevolgen van de subsidie; of

  • b. de exporteur ermee instemt zijn prijzen zo te herzien dat de met onderzoek belaste autoriteiten ervan overtuigd zijn dat de subsidie geen schadelijke gevolgen meer heeft. Bij deze verbintenissen worden de prijzen niet meer verhoogd dan nodig is om de subsidie te compenseren. Het is wenselijk dat de prijsverhogingen minder zijn dan de hoogte van de subsidie indien dit voldoende is om een einde te maken aan de schade die de binnenlandse bedrijfstak lijdt.

• 18.2 Verbintenissen worden niet gevraagd noch aanvaard tenzij de autoriteiten van het importerende Lid een voorlopige positieve vaststelling hebben gedaan over het bestaan van subsidie en de daardoor veroorzaakte schade en, in geval van verbintenissen van exporteurs, het exporterende Lid hiervoor toestemming heeft gegeven.

• 18.3 Aangeboden verbintenissen behoeven niet te worden aanvaard indien de autoriteiten van het importerende Lid van oordeel zijn dat aanvaarding daarvan niet praktisch mogelijk is, bijvoorbeeld indien het aantal bestaande en potentiële exporteurs te groot is of om andere redenen, met inbegrip van redenen van algemeen beleid. Indien dit het geval is en voor zover dit praktisch mogelijk is, delen de autoriteiten de exporteur mede waarom zij de de verbintenis niet hebben aanvaard en geven zij de exporteur, voor zover mogelijk, gelegenheid hierover opmerkingen te maken.

• 18.4 Indien een verbintenis wordt aanvaard, wordt het onderzoek naar subsidiëring en schade toch voltooid indien het exporterende Lid dit wenst of het importerende Lid hiertoe besluit. Wordt in dit geval vastgesteld dat er geen sprake is van subsidiëring of schade, dan vervalt de verbintenis automatisch, tenzij een dergelijke vaststelling grotendeels het gevolg is van het bestaan van een verbintenis. In dergelijke gevallen kunnen de betrokken autoriteiten eisen dat de verbintenis gedurende een redelijke termijn wordt gehandhaafd overeenkomstig de bepalingen van deze Overeenkomst. Wordt vastgesteld dat er wel sprake is van subsidiëring en schade, dan blijft de verbintenis van kracht overeenkomstig de voorwaarden en bepalingen van deze Overeenkomst.

• 18.5 Voorstellen voor prijsverbintenissen mogen uitgaan van de autoriteiten van het importerende Lid, maar geen exporteur kan gedwongen worden hierop in te gaan. Het feit dat overheden of exporteurs geen verbintenissen aanbieden of niet op een voorstel daartoe ingaan, doet op generlei wijze afbreuk aan het onderzoek van de zaak. De autoriteiten zijn echter vrij te bepalen dat het bij voortzetting van de gesubsidieerde invoer waarschijnlijker is dat schade zal ontstaan.

• 18.6 De autoriteiten van een importerend Lid kunnen eisen dat een overheid of exporteur van wie een verbintenis is aanvaard regelmatig inlichtingen verstrekt in verband met de naleving van deze verbintenis en dat de betreffende gegevens gecontroleerd mogen worden. Bij niet-naleving van een verbintenis kunnen de autoriteiten van het importerende Lid, overeenkomstig de bepalingen van deze Overeenkomst, op korte termijn maatregelen nemen die kunnen bestaan uit de onmiddellijke toepassing van voorlopige maatregelen op grond van de meest betrouwbare gegevens die beschikbaar zijn. In dergelijke gevallen kunnen, overeenkomstig de bepalingen van deze Overeenkomst, definitieve rechten worden geheven op produkten die ten verbruike zijn aangegeven tot ten hoogste 90 dagen vóór de toepassing van deze voorlopige maatregelen, met dien verstande dat een dergelijke heffing achteraf niet mag worden toegepast op produkten die zijn aangegeven voordat de verbintenis werd verbroken.

Artikel 19. Instelling en heffing van compenserende rechten

• 19.1 Doet een Lid, nadat redelijke pogingen zijn gedaan om het overleg tot een goed einde te brengen, een definitieve vaststelling over het bestaan en de hoogte van de subsidie en dat de gesubsidieerde invoer, ten gevolge van de subsidie, schade veroorzaakt, dan kan het een compenserend recht instellen overeenkomstig het bepaalde in dit artikel, tenzij de subsidie wordt ingetrokken.

• 19.2 Het is aan de autoriteiten van het importerende Lid te besluiten of een compenserend recht al dan niet wordt ingesteld wanneer aan alle eisen voor het instellen van dit recht is voldaan, en of dit recht gelijk is aan de hoogte van de subsidie of lager. Het is wenselijk dat de instelling van het recht facultatief is op het grondgebied van alle Leden en dat het recht lager is dan de hoogte van de subsidie indien dit lagere recht voldoende is om een einde te maken aan de schade die de binnenlandse bedrijfstak lijdt, en dat procedures worden vastgesteld door middel waarvan de betrokken autoriteiten rekening kunnen houden met de opmerkingen van belanghebbenden in het binnenland324 wier belangen door het instellen van een compenserend recht geschaad zouden kunnen worden.

• 19.3 Wordt op een produkt een compenserend recht ingesteld, dan wordt dit recht zonder discriminatie geheven op de invoer van dit produkt uit alle gesubsidieerde en schadeveroorzakende bronnen, behalve de invoer uit die bronnen die de betrokken subsidie hebben ingetrokken of waarvan verbintenissen in de zin van deze Overeenkomst zijn aanvaard. Elke exporteur op wiens exportprodukten een definitief compenserend recht is ingesteld, maar wiens produkten niet werkelijk werden onderzocht om andere redenen dan diens weigering mede te werken, heeft recht op een versneld onderzoek zodat de met onderzoek belaste autoriteiten zo snel mogelijk een afzonderlijk compenserend recht voor die exporteur kunnen instellen.

• 19.4 De compenserende rechten die op een importprodukt worden geheven325 mogen niet hoger zijn dan de subsidie waarvan het bestaan is vastgesteld en die per eenheid van het gesubsidieerde en geëxporteerde produkt is berekend.

Artikel 20. Terugwerkende kracht

• 20.1 Voorlopige maatregelen en compenserende rechten worden slechts toegepast op produkten die voor verbruik worden aangegeven, nadat het besluit op grond van artikel 17, lid 1, respectievelijk artikel 19, lid 1, in werking is getreden, behalve in de in onderhavig artikel vermelde uitzonderingsgevallen.

• 20.2 Wanneer een definitieve vaststelling van schade (maar niet van dreigende schade of de aanzienlijke vertraging van de vestiging van een bedrijfstak) is gedaan of, in het geval van een definitieve vaststelling van dreigende schade, wanneer de gesubsidieerde invoer, in afwezigheid van voorlopige maatregelen, tot een vaststelling van schade zouden hebben geleid, kunnen met terugwerkende kracht compenserende rechten worden geheven voor de periode waarin eventueel voorlopige maatregelen van toepassing waren.

• 20.3 Is het definitieve compenserende recht hoger dan het bedrag dat door de storting van een geldsom of door het stellen van een zekerheid is gegarandeerd, dan wordt het verschil niet geïnd. Is het definitieve recht lager dan het door de gestorte geldsom of gestelde zekerheid gegarandeerde bedrag, dan wordt het teveel zo spoedig mogelijk terugbetaald of vrijgegeven.

• 20.4 Behoudens het bepaalde in lid 2 kan, wanneer dreigende schade of de aanmerkelijke vertraging van de vestiging van een bedrijfstak is vastgesteld (maar wanneer zich nog geen schade heeft voorgedaan), een definitief compenserend recht slechts worden ingesteld vanaf de datum waarop de dreigende schade of aanzienlijke vertraging zijn vastgesteld. Geldsommen die tijdens de toepassing van de voorlopige maatregelen zijn gestort worden zo spoedig mogelijk terugbetaald en gestelde zekerheden zo spoedig mogelijk vrijgegeven.

• 20.5 Wanneer een definitieve vaststelling negatief is, worden geldsommen die tijdens de toepassing van de voorlopige maatregelen zijn gestort zo spoedig mogelijk terugbetaald en gestelde zekerheden zo spoedig mogelijk vrijgegeven.

• 20.6 Wanneer de autoriteiten, in kritieke omstandigheden, vaststellen dat moeilijk te herstellen schade is veroorzaakt door de massale import, in een betrekkelijk korte periode, van een produkt waarvoor in strijd met de bepalingen van de GATT 1994 en deze Overeenkomst subsidies zijn uitgekeerd of toegekend en zij het nodig achten, ten einde een herhaling van dergelijke schade te voorkomen, op deze invoer met terugwerkende kracht compenserende rechten in te stellen, mogen definitieve compenserende rechten worden geheven op importprodukten die, niet meer dan 90 dagen voor de datum waarop voorlopige maatregelen zijn toegepast, ten verbruike zijn aangegeven.

Artikel 21. Duur en herziening van de compenserende rechten en verbintenissen

• 21.1 Een compenserend recht blijft van toepassing zolang en voor zover dit nodig is om de schadeveroorzakende subsidie te neutraliseren.

• 21.2 De autoriteiten onderzoeken, zo nodig, of een ingesteld recht moet worden gehandhaafd, hetzij op eigen initiatief, hetzij, mits sinds het instellen van het definitieve compenserende recht een redelijke periode is verstreken, op verzoek van een belanghebbende die positieve gegevens verstrekt waaruit de noodzaak van een herziening blijkt. Belanghebbenden hebben het recht de autoriteiten te verzoeken na te gaan of het nodig is de rechten ter compensatie van subsidiëring te handhaven, of het waarschijnlijk is dat de schade zou voortduren of weer zou ontstaan indien het recht werd opgeheven of gewijzigd, of beide. Indien de autoriteiten bij het in dit lid bedoelde onderzoek vaststellen dat er geen redenen zijn het compenserende recht te handhaven, wordt het onmiddellijk opgeheven.

• 21.3 In afwijking van de leden 1 en 2 vervalt een definitief compenserend recht uiterlijk vijf jaar nadat het werd ingesteld (of uiterlijk vijf jaar na de datum van het meest recente onderzoek op grond van lid 2, indien dit onderzoek zowel op subsidiëring als op schade betrekking had, of op grond van onderhavig lid), tenzij de autoriteiten, tijdens een onderzoek dat vóór die datum op hun eigen initiatief werd geopend of op een met redenen omkleed verzoek van of namens de binnenlandse bedrijfstak binnen een redelijke termijn vóór die datum, dat het vervallen van het recht waarschijnlijk tot een voortzetting of een herhaling van subsidiëring en schade zou leiden326. Het recht kan in afwachting van de resultaten van dit onderzoek gehandhaafd blijven.

• 21.4 Het bepaalde in artikel 12 ten aanzien van bewijsmateriaal en procedures is van toepassing op een herzieningsonderzoek dat op grond van dit artikel wordt uitgevoerd. Een dergelijk onderzoek wordt onverwijld uitgevoerd en binnen 12 maanden na de opening afgesloten.

• 21.5 Het bepaalde in dit artikel is van overeenkomstige toepassing op verbintenissen die overeenkomstig artikel 18 zijn aanvaard.

Artikel 22. Openbaarmaking en motivering van de vaststellingen

• 22.1 Indien de autoriteiten ervan overtuigd zijn dat er voldoende bewijsmateriaal is om, overeenkomstig artikel 11, een onderzoek te openen, wordt dit medegedeeld aan het Lid of de Leden waarvan de produkten onderzocht zullen worden en aan andere partijen waarvan het de met onderzoek belaste autoriteiten bekend is dat zij belang hebben bij het onderzoek. Tevens wordt een bericht gepubliceerd.

• 22.2 Het bericht over de opening van een onderzoek bevat de volgende gegevens of vermeldt dat deze beschikbaar zijn in een afzonderlijk verslag327:

  • i. de naam van het land of de landen van uitvoer en het betrokken produkt;

  • ii. de datum van opening van het onderzoek;

  • iii. een beschrijving van de te onderzoeken subsidiepraktijk of -praktijken;

  • iv. een samenvatting van de factoren waarop de schadeklacht is gebaseerd;

  • v. het adres waaraan belanghebbende Leden en partijen opmerkingen kunnen toezenden; en

  • vi. de termijnen waarbinnen belanghebbende Leden en partijen hun standpunt bekend moeten maken.

• 22.3 Er wordt een bericht gepubliceerd over de voorlopige of definitieve vaststellingen, ongeacht of deze positief of negatief zijn, over besluiten tot aanvaarding van een verbintenis op grond van artikel 18, over de beëindiging van een verbintenis en de beëindiging van een definitief compenserend recht. Elk bericht bevat voldoende gedetailleerde gegevens, of vermeldt dat deze in een afzonderlijk verslag beschikbaar zijn, over de bevindingen en conclusies inzake alle feitelijke en juridische gegevens die door de met onderzoek belaste autoriteiten van belang werden geacht. Deze berichten en verslagen worden toegezonden aan het Lid of de Leden op de produkten waarvan deze vaststellingen of verbintenissen betrekking hebben en aan andere partijen waarvan bekend is dat zij daarbij belang hebben.

• 22.4 Het bericht dat voorlopige maatregelen worden genomen bevat een voldoende gedetailleerde uitleg, of vermeldt dat deze in een afzonderlijk verslag beschikbaar zijn, over de voorlopige vaststellingen inzake het bestaan van subsidie en schade en vermeldt de feitelijke en juridische punten op grond waarvan argumenten zijn aanvaard of afgewezen. Dit bericht of verslag bevat, met inachtneming van plicht tot bescherming van vertrouwelijke gegevens, met name het volgende:

  • i. de namen van de betrokken leveranciers of, wanneer dit niet praktisch mogelijk is, van de betrokken leverancierslanden;

  • ii. een voor douanedoeleinden voldoende nauwkeurige omschrijving van het produkt;

  • iii. de hoogte van de vastgestelde subsidie en de basis waarop het bestaan van een subsidie werd vastgesteld;

  • iv. de in artikel 15 genoemde overwegingen betreffende de vaststelling van schade;

  • v. de voornaamste redenen die tot de vaststelling hebben geleid.

• 22.5 Wanneer een positieve vaststelling wordt gedaan die tot de instelling van een definitief recht of de aanvaarding van een verbintenis leidt, bevat het bericht dat een onderzoek wordt afgesloten of geschorst, alle ter zake dienende feitelijke en juridische gegevens en een opgave van de redenen die tot de instelling van definitieve maatregelen of de aanvaarding van een verbintenis hebben geleid, of vermeldt het dat deze gegevens in een afzonderlijk verslag beschikbaar zijn, waarbij rekening dient te worden gehouden met de plicht tot bescherming van vertrouwelijke gegevens. Het bericht of verslag bevat met name de in lid 4 genoemde gegevens alsmede een opgave van de redenen voor de aanvaarding of afwijzing van ter zake dienende argumenten of eisen van belanghebbende Leden, exporteurs en importeurs.

• 22.6 Een bericht over de beëindiging of schorsing van een onderzoek na de aanvaarding, ingevolge artikel 18, van een verbintenis, bevat het niet-vertrouwelijke deel van deze verbintenis of vermeldt dat dit in een afzonderlijk verslag is opgenomen.

• 22.7 Dit artikel is van overeenkomstige toepassing op de opening en voltooiing van herzieningsonderzoeken op grond van artikel 21 en op besluiten tot toepassing van rechten met terugwerkende kracht op grond van artikel 20.

Artikel 23. Rechterlijk toezicht

Een Lid waarvan de nationale wetgeving bepalingen over compenserende rechten bevat, handhaaft de rechtbanken, scheidsgerechten of administratieve rechtbanken of procedures die onder andere ten doel hebben de administratieve maatregelen ten aanzien van definitieve vaststellingen en herzieningsonderzoeken in de zin van artikel 21 terstond te onderzoeken. Deze rechtbanken, gerechten en procedures zijn onafhankelijk van de autoriteiten die voor de betrokken vaststelling of het betrokken herzieningsonderzoek verantwoordelijk zijn en bieden alle belanghebbenden die aan de administratieve procedure hebben deelgenomen en die een rechtstreeks en individueel belang hebben bij de administratieve maatregelen de mogelijkheid in beroep te gaan.

DEEL VI. : INSTELLINGEN

Artikel 24. Commissie Subsidies en Compenserende Maatregelen en suborganen

• 24.1 Er wordt een Commissie Subsidies en Compenserende Maatregelen ingesteld waarin vertegenwoordigers van elk Lid zitting hebben. De Commissie kiest zijn voorzitter en komt ten minste twee maal per jaar bijeen en, overeenkomstig de bepalingen van deze Overeenkomst, op verzoek van een Lid. De Commissie voert de taken uit waarmee het krachtens deze Overeenkomst of door de Leden is belast en stelt de Leden in de gelegenheid overleg te plegen over alle vraagstukken betreffende de toepassing of de bevordering van de doelstellingen van de overeenkomst. Het WTO-Secretariaat treedt op als secretariaat van de Commissie.

• 24.2 De Commissie kan zo nodig suborganen instellen.

• 24.3 De Commissie stelt een Permanente Groep Deskundigen (PGE Permanent Group of Experts) in, samengesteld uit vijf onafhankelijke personen met grote deskundigheid op het gebied van subsidies en handelsbetrekkingen. De deskundigen worden door de Commissie gekozen en een van hen wordt elk jaar vervangen. De PGE kan worden verzocht een panel bijstand te verlenen, zoals in artikel 4, lid 5, voorzien. De Commissie kan de PGE ook om advies vragen over het bestaan en de aard van een subsidie.

• 24.4 De PGE kan door elk lid worden geraadpleegd en advies geven over de aard van een subsidie die een Lid wil invoeren of handhaven. Dit advies is vertrouwelijk. Bij procedures op grond van artikel 7 mag hiernaar niet worden verwezen.

• 24.5 Bij de uitoefening van hun taken kunnen de Commissie en de eventuele suborganen overleg plegen met of inlichtingen inwinnen bij alle instanties die daarvoor naar hun oordeel in aanmerking komen. Alvorens echter inlichtingen in te winnen bij een instantie binnen het rechtsgebied van een Lid, dient de Commissie of het suborgaan dit Lid hiervan in kennis te stellen.

DEEL VII. : KENNISGEVING EN TOEZICHT

Artikel 25. Kennisgevingen

• 25.1 Onverminderd artikel XVI, lid 1, van de GATT 1994, komen de Leden overeen uiterlijk op 30 juni van elk jaar kennisgeving van subsidies te doen overeenkomstig het bepaalde in de leden 2 tot en met 6.

• 25.2 De Leden geven kennis van alle in artikel 1, lid 1, omschreven subsidies die specifiek zijn in de zin van artikel 2 en die binnen hun gebied worden verleend of in stand gehouden.

• 25.3 De kennisgevingen zijn voldoende nauwkeurig geformuleerd om de andere Leden in staat te stellen de werking van de medegedeelde subsidieregeling te begrijpen en de gevolgen daarvan voor de handel te beoordelen. Zonder op de vorm en inhoud van de vragenlijst inzake subsidies328 vooruit te lopen, zien de Leden erop toe dat hun kennisgevingen de volgende gegevens bevatten:

  • i. vorm van de subsidie (schenking, lening, belastingvoordeel enz.);

  • ii. subsidie per eenheid of, indien dit niet mogelijk is, het totale bedrag of het bedrag per jaar dat voor die subsidie in de begroting is opgenomen (zo mogelijk onder opgave van de gemiddelde subsidie per eenheid in het vorige jaar);

  • iii. beleidsdoelstellingen en/of doel van de subsidie;

  • iv. duur van de subsidie en/of alle andere daarvoor geldende termijnen;

  • v. statistische gegevens aan de hand waarvan het mogelijk is de gevolgen van de subsidie voor de handel te beoordelen.

• 25.4 Indien bepaalde onder lid 3 vermelde punten niet in een kennisgeving wordt behandeld, wordt daarvoor in de kennisgeving zelf een uitleg gegeven.

• 25.5 Indien subsidies voor specifieke produkten of sectoren worden toegekend, worden de kennisgevingen per produkt of sector ingedeeld.

• 25.6 Leden die van oordeel zijn dat binnen hun gebieden geen maatregelen bestaan die op grond van artikel XVI, lid 1, van de GATT 1994 en deze Overeenkomst moeten worden medegedeeld, stellen het Secretariaat daarvan schriftelijk in kennis.

• 25.7 De Leden erkennen dat de kennisgeving van een maatregel geen oordeel inhoudt over de juridische status op grond van de GATT 1994 en deze Overeenkomst, over de gevolgen daarvan in de zin van deze Overeenkomst, of over de aard van de maatregel zelf.

• 25.8 Een Lid kan steeds schriftelijk om inlichtingen verzoeken over de aard en de hoogte van een subsidie die een ander Lid verleent of in stand houdt (met inbegrip van een in Deel IV bedoelde subsidie) of vragen om welke redenen van een bepaalde maatregel geen kennisgeving behoefde te worden gedaan.

• 25.9 De Leden waaraan dit verzoek is gericht verstrekken deze inlichtingen zo vlug en zo volledig mogelijk en zijn op verzoek bereid het Lid dat om inlichtingen heeft gevraagd aanvullende inlichtingen te verstrekken. Deze inlichtingen zijn met name voldoende nauwkeurig om het andere Lid in staat te stellen te beoordelen of aan de voorwaarden van deze Overeenkomst is voldaan. Een Lid dat van oordeel is dat zulke inlichtingen niet zijn verstrekt kan de kwestie onder de aandacht van de Commissie brengen.

• 25.10 Een Lid dat van oordeel is dat een maatregel van een ander Lid dat de gevolgen van een subsidie heeft, niet is medegedeeld overeenkomstig het bepaalde in artikel XVI, lid 1, van de GATT 1994 en onderhavig artikel kan de kwestie onder de aandacht van dit andere Lid brengen. Wordt deze vermoedelijke subsidie daarna niet onverwijld medegedeeld, dan kan dit Lid deze vermoedelijke subsidie zelf onder de aandacht van de Commissie vestigen.

• 25.11 De Leden brengen bij de Commissie onverwijld verslag uit over alle voorlopige en definitieve maatregelen die in verband met compenserende maatregelen zijn genomen. Deze verslagen liggen bij het Secretariaat voor andere Leden ter inzage. De Leden brengen ook elk half jaar verslag uit over maatregelen die zij in het afgelopen half jaar in verband met compenserende rechten hebben genomen. De halfjaarlijkse verslagen worden volgens een overeengekomen model ingediend.

• 25.12 Elk Lid deelt de Commissie mede a. welke van zijn autoriteiten bevoegd zijn het in artikel 11 bedoelde onderzoek te openen en voort te zetten, en b. welke procedures bij de opening van en tijdens het onderzoek worden gevolgd.

Artikel 26. Toezicht

• 26.1 De Commissie onderzoekt de nieuwe en volledige kennisgevingen die op grond van artikel XVI, lid 1, van de GATT 1994 en artikel 25, lid 1, van deze Overeenkomst zijn gedaan op vergaderingen die te dien einde om de drie jaar worden gehouden. Kennisgevingen die in de tussenliggende jaren worden gedaan (bijwerkingen) worden op de gewone vergaderingen van de Commissie onderzocht.

• 26.2 De Commissie onderzoekt de verslagen die op grond van artikel 25, lid 11, zijn ingediend op elke gewone vergadering van de Commissie.

DEEL VIII. : ONTWIKKELINGSLANDEN

Artikel 27. Bijzondere en gedifferentieerde behandeling van Leden die ontwikkelingslanden zijn

• 27.1 De Leden erkennen dat subsidies een belangrijke rol kunnen spelen in de programma's voor de economische ontwikkeling van Leden die ontwikkelingslanden zijn.

• 27.2 Het verbod in artikel 3, lid 1, onder a. is niet van toepassing op:

  • a. de in bijlage VII genoemde Leden die ontwikkelingslanden zijn;

  • b. andere Leden die ontwikkelingslanden zijn voor een periode van acht jaar vanaf de datum van inwerkingtreding van de WTO-Overeenkomst en op de in lid 4 gestelde voorwaarden.

• 27.3 Het verbod in artikel 3, lid 1, onder b. is, vanaf de datum van inwerkingtreding van de WTO-Overeenkomst, voor een periode van vijf jaar niet van toepassing op Leden die ontwikkelingslanden zijn en is voor een periode van acht jaar niet van toepassing op Leden die minstontwikkelde landen zijn.

• 27.4 Een in lid 2, onder b. bedoeld Lid dat ontwikkelingsland is schaft zijn exportsubsidies over een periode van acht jaar, bij voorkeur geleidelijk, af. Een Lid dat een ontwikkelingsland is verhoogt het niveau van zijn exportsubsidies niet329 en schaft ze op een kortere dan de in dit lid genoemde periode af wanneer het gebruik van deze exportsubsidies niet meer aan zijn ontwikkelingsbehoeften beantwoordt. Is een Lid dat een ontwikkelingsland is van oordeel dat het nodig is deze subsidies ook na de periode van acht jaar toe te passen, dan pleegt het uiterlijk een jaar vóór de afloop van deze periode overleg met de Commissie dat beslist of een verlenging van de periode kan worden toegestaan, na onderzoek van de relevante economische, financiële en ontwikkelingsbehoeften van het betrokken Lid dat een ontwikkelingsland is. Indien de Commissie vaststelt dat de verlenging kan worden toegestaan, pleegt het betrokken Lid dat ontwikkelingsland is jaarlijks overleg met de Commissie om vast te stellen of het nog nodig is de subsidies te handhaven. Doet de Commissie een dergelijke vaststelling niet, dan schaft het Lid dat ontwikkelingsland is de nog resterende exportsubsidies af over een periode van twee jaar na het einde van de laatst toegestane termijn.

• 27.5 Een Lid dat een ontwikkelingsland is waarvan een bepaald exportprodukt concurrerend is geworden, schaft de exportsubsidies voor dit produkt over een periode van twee jaar af. Een in Bijlage VII bedoeld Lid dat ontwikkelingsland is waarvan een of meer exportprodukten concurrerend zijn geworden, schaft de exportsubsidies op deze produkten over een periode van acht jaar af.

• 27.6 Een exportprodukt is concurrerend geworden indien de export van dat produkt uit een Lid dat ontwikkelingsland is gedurende twee opeenvolgende kalenderjaren ten minste een aandeel van 3,25% van de wereldhandel in dat produkt heeft bereikt. Er is sprake van concurrerende export a. indien het Lid dat een ontwikkelingsland is mededeelt dat een exportprodukt concurrerend is geworden, of b. indien het Secretariaat tot deze conclusie komt na, op verzoek van een Lid, een berekening te hebben gemaakt. Voor de toepassing van dit lid wordt onder een produkt een post van de nomenclatuur van het geharmoniseerd systeem verstaan. De Commissie stelt vijf jaar na de datum van inwerkingtreding van de WTO-Overeenkomst een onderzoek in naar de werking van deze bepaling.

• 27.7 Het bepaalde in artikel 4 is niet van toepassing op exportsubsidies van een Lid dat een ontwikkelingsland is die in overeenstemming zijn met het bepaalde in de leden 2 tot en met 5. Artikel 7 is in dat geval van toepassing.

• 27.8 Er bestaat geen vermoeden in de zin van artikel 6, lid 1, dat een subsidie die door een Lid dat een ontwikkelingsland wordt toegekend tot ernstige schade leidt in de zin van deze Overeenkomst. Is ernstige schade in de zin van lid 9 van toepassing, dan wordt deze aan de hand van positief bewijsmateriaal aangetoond, overeenkomstig het bepaalde in artikel 6, leden 3 tot en met 8.

• 27.9 Maatregelen overeenkomstig artikel 7 kunnen niet worden toegestaan of genomen ten aanzien van subsidies waartegen een actie kan worden ingesteld die een Lid dat een ontwikkelingsland is verleent of in stand houdt, met uitzondering van de in artikel 6, lid 1, bedoelde subsidies, tenzij blijkt dat tariefconcessies of andere verplichtingen op grond van de GATT 1994 tengevolge van deze subsidies worden tenietgedaan of uitgehold, daar de invoer van een soortgelijk produkt van een ander Lid naar het subsidieverlenende Lid dat een ontwikkelingsland is wordt verdrongen of verhinderd, of een binnenlandse bedrijfstak van een importerend Lid wordt geschaad.

• 27.10 Een onderzoek in verband met een compenserend recht op een produkt van oorsprong uit een Lid dat een ontwikkelingsland is wordt beëindigd zodra de betrokken autoriteiten vaststellen dat:

  • a. het totale niveau van de subsidies die voor het betrokken produkt zijn verleend niet meer bedraagt dan 2% van zijn waarde berekend aan de hand van de waarde per eenheid; of

  • b. het volume van de gesubsidieerde invoer minder dan 4% bedraagt van de totale invoer van het soortgelijke produkt in het importerende Lid, tenzij de invoer uit Leden die ontwikkelingslanden zijn elk afzonderlijk minder dan 4% uitmaken, maar tezamen meer dan 9% uitmaken van de totale invoer van het soortgelijke produkt in het importerende Lid.

• 27.11 Voor de in lid 2, onder b. bedoelde Leden die ontwikkelingslanden zijn die hun exportsubsidies al voor de afloop van de termijn van acht jaar na de datum van inwerkingtreding van de WTO-Overeenkomst hebben afgeschaft en voor de in Bijlage VII genoemde Leden die ontwikkelingslanden zijn is het in lid 10, onder a. genoemde cijfer niet 2%, maar 3%. Deze bepaling is van toepassing vanaf de datum dat de afschaffing van de exportsubsidies aan de Commissie wordt medegedeeld en zolang het kennisgevende Lid dat een ontwikkelingland is geen exportsubsidies verleent. Deze bepaling vervalt acht jaar na de inwerkingtreding van de WTO-Overeenkomst.

• 27.12 Het bepaalde in de leden 10 en 11 is van toepassing op elke vaststelling van de in artikel 15, lid 3, bedoelde minimale subsidiëring.

• 27.13 De bepalingen van Deel III zijn niet van toepassing op een rechtstreekse kwijtschelding van schulden en subsidies om sociale kosten te dekken, in welke vorm dan ook, met inbegrip van het afstand doen van overheidsinkomsten en andere overdrachten van passiva indien deze subsidies verleend zijn in het kader van en rechtstreeks verband houden met een privatiseringsprogramma van een Lid dat een ontwikkelingsland is, mits dit programma en de betrokken subsidies voor een beperkte periode van toepassing zijn en aan de Commissie worden medegedeeld en het programma uiteindelijk tot de privatisering van de betrokken onderneming leidt.

• 27.14 Op verzoek van een belanghebbend Lid onderzoekt de Commissie een bepaalde exportsubsidiepraktijk van een Lid dat een ontwikkelingsland is om na te gaan of deze praktijk aan de ontwikkelingsbehoeften van dat Lid beantwoordt.

• 27.15 Op verzoek van een Lid dat een ontwikkelingsland is onderzoekt de Commissie een bepaalde compenserende maatregel om na te gaan of het aan de voorwaarden van de leden 10 en 11 voldoet zoals die op het betrokken Lid dat een ontwikkelingsland is van toepassing zijn.

DEEL IX. : OVERGANGSREGELINGEN

Artikel 28. Bestaande subsidieregelingen

• 28.1 Subsidieregelingen die binnen het gebied van een Lid zijn vastgesteld voordat dit Lid de WTO-Overeenkomst ondertekende en die met de bepalingen van deze Overeenkomst in strijd zijn:

  • a. worden de Commissie medegedeeld binnen 90 dagen nadat de WTO-Overeenkomst voor dit Lid in werking is getreden; en

  • b. worden binnen drie jaar nadat de WTO-Overeenkomst voor dit Lid in werking is getreden met de bepalingen van deze Overeenkomst in overeenstemming gebracht; Deel II is tot dat tijdstip niet op deze regelingen van toepassing.

• 28.2 De Leden breiden het toepassingsgebied van deze regelingen niet uit en verlengen deze na afloop niet.

Artikel 29. Overschakeling op een markteconomie

• 29.1 Leden die bezig zijn hun economie van een centraal geleide economie op een markteconomie over te schakelen kunnen de regelingen en maatregelen treffen die voor deze overschakeling noodzakelijk zijn.

• 29.2 Deze Leden schaffen de in artikel 3 bedoelde subsidieregelingen die overeenkomstig lid 3 zijn medegedeeld geleidelijk af of brengen deze binnen zeven jaar na de datum van inwerkingtreding van de WTO-Overeenkomst met artikel 3 in overeenstemming. In dit geval is artikel 4 niet van toepassing. Bovendien geldt in dezelfde periode dat:

  • a. tegen subsidieregelingen waarop artikel 6, lid 1, onder d. van toepassing is geen maatregelen op grond van artikel 7 kunnen worden genomen;

  • b. artikel 27, lid 9, van toepassing is op andere subsidies waartegen acties kunnen worden ingesteld.

• 29.3 De in artikel 3 bedoelde subsidieregelingen worden de Commissie zo spoedig als praktisch mogelijk is na de datum van inwerkingtreding van de WTO-Overeenkomst medegedeeld. Verdere kennisgevingen van deze subsidies kunnen tot twee jaar na de datum van inwerkingtreding van de WTO-Overeenkomst worden gedaan.

• 29.4 In uitzonderlijke omstandigheden kan de Commissie de in lid 1 bedoelde Leden toestaan van hun medegedeelde regelingen en maatregelen en van het tijdschema voor deze regelingen en maatregelen af te wijken indien dit voor het overschakelingsproces noodzakelijk wordt geacht.

DEEL X. : BESLECHTING VAN GESCHILLEN

Artikel 30

Het bepaalde in de artikelen XXII en XXIII van de GATT 1994 zoals uitgewerkt en toegepast bij het Memorandum van Overeenstemming inzake de Beslechting van Geschillen (DSU – Dispute Settlement Understanding) is van toepassing op het overleg en de beslechting van geschillen in het kader van deze Overeenkomst, tenzij daarin uitdrukkelijk anders is bepaald.

DEEL XI. : SLOTBEPALINGEN

Artikel 31. Voorlopige toepassing

Het bepaalde in artikel 6, lid 1 en in de artikelen 8 en 9 zijn voor een periode van vijf jaar van toepassing vanaf de datum van inwerkingtreding van de WTO-Overeenkomst. Uiterlijk 180 dagen voor het einde van deze periode zal de Commissie de werking van deze bepalingen onderzoeken ten einde vast te stellen of de toepassing ervan, in de huidige dan wel in een gewijzigde vorm, moet worden verlengd.

Artikel 32. Andere slotbepalingen

• 32.1 Bijzondere maatregelen tegen een subsidie van een ander Lid kunnen alleen worden genomen voor zover zij in overeenstemming zijn met de bepalingen van de GATT 1994, zoals bij deze Overeenkomst geïnterpreteerd330.

• 32.2 Een Lid mag zonder de toestemming van de andere Leden geen voorbehoud maken ten aanzien van een bepaling van deze Overeenkomst.

• 32.3 Onder voorbehoud van lid 4 zijn de bepalingen van deze Overeenkomst van toepassing op onderzoeken en herzieningsonderzoeken van bestaande maatregelen die worden geopend op een verzoek dat op of na de datum waarop de WTO-Overeenkomst voor een Lid in werking is getreden is ingediend.

• 32.4 Voor de toepassing van artikel 21, lid 3, worden bestaande compenserende maatregelen uiterlijk op de datum waarop de WTO-Overeenkomst voor een Lid in werking is getreden geacht te zijn ingesteld, tenzij de binnenlandse wetgeving van een Lid die op die datum van kracht was reeds een bepaling van de soort bevatte als in dat lid bedoeld.

• 32.5 Ieder Lid neemt alle nodige maatregelen, van algemene of bijzondere aard, om ervoor te zorgen dat zijn wetten, voorschriften en administratieve procedures, uiterlijk op de datum waarop de WTO-Overeenkomst voor hem in werking treedt, in overeenstemming zijn met de bepalingen van deze Overeenkomst die op hem van toepassing kunnen zijn.

• 32.6 Ieder Lid stelt de Commissie in kennis van wijzigingen in de wetten en voorschriften die met deze Overeenkomst verband houden en van wijzigingen in de toepassing van deze wetten en voorschriften.

• 32.7 De Commissie onderzoekt elk jaar de tenuitvoerlegging en werking van deze Overeenkomst, gelet op de doelstellingen ervan. De Commissie stelt de Raad voor de Handel in Goederen elk jaar van de ontwikkelingen tijdens de onderzochte periode in kennis.

• 32.8 De Bijlagen maken deel uit van deze Overeenkomst.

Bijlage I. LIJST VAN VOORBEELDEN VAN EXPORTSUBSIDIES

• a. Verlening door de overheid van directe subsidies aan ondernemingen of bedrijfstakken afhankelijk van exportprestaties.

• b. Regelingen krachtens welke deviezen niet behoeven te worden afgedragen of soortgelijke praktijken die een exportpremie inhouden.

• c. Interne vervoer- en vrachttarieven voor exportzendingen, door of in opdracht van de overheid toegepast, die voordeliger zijn dan de tarieven voor binnenlandse zendingen.

• d. Levering door de overheid of door overheidsorganen, direct dan wel indirect in het kader van overheidsregelingen, van ingevoerde of binnenlandse produkten of diensten voor gebruik bij de produktie van exportgoederen, op gunstiger voorwaarden dan bij de levering van soortgelijke of rechtstreeks concurrerende produkten of diensten voor gebruik bij de produktie van goederen voor binnenlands gebruik indien (in geval van produkten) deze voorwaarden gunstiger zijn dan die welke op de wereldmarkt voor hun exporteurs commercieel verkrijgbaar331 zijn.

• e. Gehele of gedeeltelijke vrijstelling, kwijtschelding of uitstel van betaling, speciaal in verband met de export, van directe belastingen332 of sociale premies die door industriële of handelsondernemingen zijn of moeten worden betaald333.

• f. Bijzondere aftrekmogelijkheden, rechtstreeks verband houdend met de export of met exportprestaties die, bij de vaststelling van de grondslag van de directe belastingen, worden toegestaan boven die welke voor de produktie voor binnenlands verbruik worden toegestaan.

• g. Vrijstelling of kwijtschelding, uit hoofde van de produktie en distributie van exportprodukten, van een bedrag aan indirecte belastingen334 dat hoger is dan het bedrag dat uit hoofde van de produktie en distributie van soortgelijke, voor binnenlands verbruik bestemde produkten wordt geheven;

• h. Vrijstelling, kwijtschelding of uitstel van betaling van in voorafgaande stadia geheven cumulatieve indirecte belastingen335 op goederen en diensten die bij de produktie van exportprodukten worden gebruikt voor bedragen die hoger zijn dan de vrijstelling, kwijtschelding of uitstel van betaling van in voorafgaande stadia geheven cumulatieve indirecte belastingen op goederen of diensten die gebruikt worden bij de produktie van soortgelijke, voor binnenlands verbruik bestemde goederen. Vrijstelling, kwijtschelding of uitstel van betaling van in voorafgaande stadia geheven cumulatieve indirecte belastingen kan voor exportprodukten worden toegestaan zelfs indien deze niet worden toegestaan voor soortgelijke, voor binnenlands verbruik bestemde goederen, indien de in voorafgaande stadia geheven cumulatieve indirecte belastingen worden geheven op produktiemiddelen die bij de vervaardiging van het exportprodukt worden verbruikt (rekening houdend met normale verliezen)336. Dit punt wordt geïnterpreteerd overeenkomstig de in Bijlage II opgenomen richtlijnen over het verbruik van produktiemiddelen in het produktieproces.

• i. De kwijtschelding of terugbetaling van invoerheffingen337 voor een hoger bedrag dan het bedrag van de invoerheffingen op de importprodukten die bij de vervaardiging van het exportprodukt zijn gebruikt (rekening houdend met normale verliezen). In bijzondere gevallen evenwel kan een bedrijf als vervangingsproduktiemiddelen eenzelfde hoeveelheid binnenlandse produktiemiddelen van dezelfde kwaliteit en met dezelfde eigenschappen als ingevoerde produktiemiddelen gebruiken om voor deze bepaling in aanmerking te komen, indien zowel de import- als de overeenkomstige exporttransacties beide binnen een redelijke termijn plaatsvinden die niet meer dan twee jaar mag bedragen. Dit punt wordt geïnterpreteerd overeenkomstig de in Bijlage II opgenomen richtlijnen inzake het verbruik van produktiemiddelen in het produktieproces en de in Bijlage III opgenomen richtlijnen om vast te stellen of terugbetalingsregelingen voor vervangende produktiemiddelen exportsubsidies zijn.

• j. Het instellen door de overheid (of door gespecialiseerde instellingen onder toezicht van de overheid) van regelingen voor exportkredietgarantie of -verzekering, van regelingen om kostenstijgingen bij de export van produkten of wisselkoersrisico's te dekken, tegen premies die duidelijk ontoereikend zijn om de bedrijfskosten en verliezen van deze regelingen op lange termijn te dekken.

• k. Verlening door de overheid (of door gespecialiseerde instellingen onder toezicht van en/of handelende onder het gezag van de overheid) van exportkredieten tegen een lagere rente dan die welke zij zelf moet betalen om de daarvoor bestemde middelen aan te trekken (of die zij zou moeten betalen indien zij bedragen in dezelfde valuta en met dezelfde looptijd als het exportkrediet op de internationale kapitaalmarkt zou lenen) of de overname door de overheid van alle of een gedeelte van de kosten van exporteurs of financieringsinstellingen om kredieten te verkrijgen, voor zover deze tussenkomst van de overheid een aanmerkelijk voordeel op het gebied van de exportkredietvoorwaarden inhoudt.

  Indien een Lid evenwel partij is bij een internationale verbintenis inzake door de overheid gesteunde exportkredieten waarbij ten minste twaalf oorspronkelijke Leden bij deze Overeenkomst vanaf 1979 partij zijn (of bij een daaropvolgende verbintenis die deze oorspronkelijke Leden hebben aangegaan) of indien een Lid in de praktijk de bepalingen inzake rentevoeten van deze verbintenis toepast, wordt een exportkredietpraktijk die met deze bepalingen in overeenstemming is niet als een bij deze Overeenkomst verboden exportsubsidie beschouwd.

• l. Alle andere uitgaven ten laste van de schatkist die een exportsubsidie zijn in de zin van artikel XVI van de GATT 1994.

Bijlage II. RICHTLIJNEN INZAKE HET VERBRUIK VAN PRODUKTIEMIDDELEN IN HET PRODUKTIEPROCES338

I.

• 1. Regelingen voor de aftrek van indirecte-belastingen kunnen voorzien in vrijstelling, kwijtschelding of uitstel van betaling van in vorige stadia geheven cumulatieve indirecte belastingen op produktiemiddelen die bij de vervaardiging van het exportprodukt zijn verbruikt (rekening houdend met normale verliezen). Tevens kunnen er regelingen zijn voor de kwijtschelding of terugbetaling van invoerheffingen op produktiemiddelen die bij de vervaardiging van het exportprodukt zijn verbruikt (rekening houdend met normale verliezen).

• 2. De punten h. en i. van de lijst van voorbeelden van exportsubsidies in Bijlage I bij deze Overeenkomst bevatten de term „produktiemiddelen die bij de vervaardiging van het exportprodukt zijn verbruikt”. Volgens punt h. kunnen regelingen voor de aftrek van indirecte-belastingen exportsubsidies zijn indien zij leiden tot vrijstelling, kwijtschelding of uitstel van betaling van in vorige stadia geheven cumulatieve indirecte belastingen voor een bedrag dat hoger is dan het bedrag aan belastingen dat werkelijk is geheven op de produktiemiddelen die bij de vervaardiging van het exportprodukt zijn verbruikt. Volgens punt i. zijn terugbetalingsregelingen exportsubsidies indien zij leiden tot de kwijtschelding of teruggave van invoerheffingen voor een hoger bedrag dan het bedrag aan invoerrechten dat werkelijk is geheven op de produktiemiddelen die bij de vervaardiging van het exportprodukt zijn verbruikt. Volgens beide punten moet bij de bevindingen inzake het verbruik van de produktiemiddelen bij de vervaarding van het exportprodukt met normale verliezen rekening worden gehouden. In punt i. wordt ook rekening gehouden met vervanging.

II.

Bij het onderzoek in verband met compenserende rechten op grond van deze Overeenkomst dienen de met onderzoek belaste autoriteiten als volgt te werk te gaan wanneer zij nagaan of produktiemiddelen bij de vervaardiging van het exportprodukt zijn verbruikt:

• 1. Wanneer wordt aangevoerd dat een regeling voor de aftrek van indirecte belastingen of de terugbetaling van invoerrechten een subsidie inhoudt omdat de kwijtschelding van de indirecte belastingen of de terugbetaling van invoerrechten op de produktiemiddelen die bij de vervaardiging van het exportprodukt zijn verbruikt te hoog is, dienen de met onderzoek belaste autoriteiten eerst vast te stellen of de overheid van het exporterende Lid een regeling of procedure kent of toepast aan de hand waarvan kan worden nagegaan welke produktiemiddelen bij de vervaardiging van het exportprodukt zijn verbruikt en in welke hoeveelheden. Wordt vastgesteld dat een dergelijke regeling of procedure wordt toegepast, dan dienen de met onderzoek belaste autoriteiten vervolgens te onderzoeken of deze redelijk is, aan het doel beantwoordt en gebaseerd is op in het exportland algemeen aanvaarde handelspraktijken. De met het onderzoek belaste autoriteiten kunnen het nodig achten om, overeenkomstig artikel 12, lid 6, bepaalde praktische controles uit te voeren om de inlichtingen te verifiëren of om na te gaan of de regeling of procedure effectief wordt toegepast.

• 2. Indien een dergelijke regeling of procedure niet bestaat, niet redelijk is of wanneer een dergelijke regeling of procedure wel is ingesteld en redelijk bevonden, maar ze blijkt niet of niet doelmatig te worden toegepast, dan dient het exporterende Lid een verder onderzoek naar de werkelijk gebruikte produktiemiddelen in te stellen ten einde te bepalen of er werkelijk sprake is van de betaling van een te hoog bedrag. Indien de met onderzoek belaste autoriteiten zulks nodig achten, wordt een verder onderzoek uitgevoerd overeenkomstig lid 1.

• 3. De met onderzoek belaste autoriteiten dienen produktiemiddelen als fysiek in het exportprodukt opgenomen te beschouwen indien deze produktiemiddelen bij het produktieproces zijn gebruikt en fysiek in het exportprodukt aanwezig zijn. De Leden nemen er nota van dat het produktiemiddel niet in dezelfde vorm in het exportprodukt aanwezig behoeft te zijn als de vorm die het bij de aanvang van het produktieproces had.

• 4. Bij de vaststelling van de hoeveelheid van een bepaald produktiemiddel dat bij de vervaardiging van het exportprodukt is verbruikt, dient rekening te worden gehouden met „normale verliezen” die beschouwd dienen te worden als bij de vervaardiging van het exportprodukt verbruikt. Onder „verliezen” wordt dat deel van een bepaald produktiemiddel verstaan dat in het produktieproces geen onafhankelijke functie vervult, niet bij de vervaardiging van het exportprodukt wordt verbruikt (om redenen zoals bijv. inefficiënte opname) en door dezelfde producent niet wordt teruggewonnen, gebruikt of verkocht.

• 5. Om vast te stellen of de correctie voor verliezen „normaal” is, dienen de met onderzoek belaste autoriteiten rekening te houden met het produktieproces, de normale praktijk in de bedrijfstak in het exporterende land en, zo nodig, met andere technische factoren. Ze mogen niet uit het oog verliezen dat het erom gaat vast te stellen of de autoriteiten in het exporterende Lid de hoeveelheid verliezen op redelijke wijze hebben berekend wanneer deze hoeveelheid in aanmerking moet worden genomen bij de berekening van de aftrek van belastingen of de kwijtschelding van rechten.

Bijlage III. RICHTLIJNEN OM VAST TE STELLEN OF TERUGBETALINGSREGELINGEN VOOR VERVANGENDE PRODUKTIEMIDDELEN EXPORTSUBSIDIES ZIJN

I.

Terugbetalingsregelingen kunnen voorzien in de terugbetaling van invoerheffingen op produktiemiddelen die bij de vervaardiging van een exportprodukt worden verbruikt wanneer dit produkt binnenlandse produktiemiddelen bevat met dezelfde kwaliteit en eigenschappen als de ingevoerde produktiemiddelen die zij vervangen. Overeenkomstig punt i. van de lijst van voorbeelden van exportsubsidies in Bijlage I kunnen terugbetalingen voor vervangingsprodukten met een exportsubsidie worden gelijkgesteld wanneer meer wordt terugbetaald dan het bedrag aan invoerheffingen op de invoergoederen waarvoor terugbetaling wordt gevraagd.

II.

Bij het onderzoek in verband met compenserende rechten op grond van deze Overeenkomst dienen de met onderzoek belaste autoriteiten bij het onderzoek naar terugbetalingen voor vervangingsgoederen als volgt te werk te gaan:

• 1. Volgens punt i. van de lijst van voorbeelden kunnen binnenlandse produktiemiddelen in plaats van invoergoederen bij de vervaardiging van een exportprodukt worden gebruikt, mits het binnenlandse produkt in dezelfde hoeveelheid wordt gebruikt en dezelfde kwaliteit en kenmerken heeft als het invoergoed dat het vervangt. Het bestaan van een verificatieregeling of -procedure is van belang omdat de overheid van het exporterende Lid met behulp daarvan erop kan toezien en aantonen dat de hoeveelheid produktiemiddelen waarvoor terugbetaling wordt gevraagd niet groter is dan de hoeveelheid soortgelijke uitgevoerde produkten, in welke vorm dan ook, en dat er geen hoger bedrag aan invoerheffingen wordt terugbetaald dan oorspronkelijk op de betrokken invoergoederen is geheven.

• 2. Wanneer wordt aangevoerd dat terugbetalingen voor vervangingsgoederen als subsidies zijn te beschouwen, dienen de met het onderzoek belaste autoriteiten eerst vast te stellen of de overheid van het exporterende Lid een verificatieregeling of -procedure kent of toepast. Wordt vastgesteld dat een dergelijke regeling of procedure wordt toegepast, dan dienen de met onderzoek belaste autoriteiten vervolgens te onderzoeken of de verificatieprocedures redelijk zijn, aan het gestelde doel beantwoorden en gebaseerd zijn op in het exportland algemeen aanvaarde handelspraktijken. Wordt vastgesteld dat dit inderdaad het geval is en dat de procedures effectief worden toegepast, dan wordt niet vermoed dat van subsidie sprake is. De met het onderzoek belaste autoriteiten kunnen het nodig achten om, overeenkomstig artikel 12, lid 6, bepaalde praktische controles uit te voeren om de inlichtingen te verifiëren of om zich ervan te overtuigen dat de verificatieprocedures effectief worden toegepast.

• 3. Indien geen verificatieprocedures bestaan, indien deze niet redelijk zijn, of wanneer deze procedures wel zijn ingesteld en redelijk bevonden doch ze blijken niet of niet doelmatig te worden toegepast, dan kan er sprake zijn van subsidie. In dergelijke gevallen dient een verder onderzoek door het exporterende Lid op grond van de betrokken transacties te worden uitgevoerd om vast te stellen of er teveel is betaald. Indien de met onderzoek belaste autoriteiten zulks nodig achten, wordt een verder onderzoek uitgevoerd overeenkomstig lid 2.

• 4. Bevat de regeling voor de terugbetaling van invoerheffingen op vervangingsmiddelen de bepaling dat exporteurs de invoerzendingen mogen aanwijzen waarop zij hun aanvraag om terugbetaling baseren, dan is dit op zich geen bewijs van subsidie.

• 5. Aangenomen wordt dat de terugbetaling van invoerheffingen in de zin van punt i. te hoog is indien de overheid rente heeft betaald op de sommen die zij in het kader van hun terugbetalingsregelingen hebben terugbetaald, waarbij het teveel betaalde het bedrag van de werkelijk betaalde of te betalen rente is.

Bijlage IV. BEREKENING VAN HET TOTAAL VAN DE IN WAARDE UITGEDRUKTE SUBSIDIE (ARTIKEL 6, LID 1, ONDER A)339

• 1. De hoogte van een subsidie wordt voor de toepassing van artikel 6, lid 1, onder a. berekend in termen van de kosten voor de subsidieverlenende overheid.

• 2. Om vast te stellen of de totale subsidie meer dan 5% van de waarde van het produkt bedraagt wordt als de waarde van het produkt de totale waarde genomen van de omzet van het subsidie-ontvangende bedrijf340 in de meest recente periode van twaalf maanden waarover omzetcijfers beschikbaar zijn voorafgaande aan de periode waarin de subsidie is verleend341, tenzij in de leden 3, 4 en 5 anders is bepaald.in de meest recente periode van twaalf maanden waarover omzetcijfers beschikbaar zijn voorafgaande aan de periode waarin de subsidie is verleend, tenzij in de leden 3, 4 en 5 anders is bepaald.

• 3. Indien de subsidie verbonden is aan de produktie of verkoop van een bepaald produkt, is de waarde van dat produkt de totale waarde van de verkoop van dat produkt door het subsidie-ontvangende bedrijf in de meest recente periode van twaalf maanden waarvoor verkoopcijfers beschikbaar zijn, voorafgaande aan de periode waarin de subsidie is verleend.

• 4. Bevindt het subsidie-ontvangende bedrijf zich in de aanvangsfase, dan wordt ernstige schade geacht te worden veroorzaakt indien de totale subsidiëring meer dan 15% van de totale investeringen bedraagt. Voor de toepassing van dit punt duurt de aanvangsfase van een bedrijf niet langer dan het eerste jaar van produktie342.

• 5. Is het subsidie-ontvangende bedrijf in een land met hoge inflatie gevestigd, dan is de waarde van het produkt de totale omzet van het subsidie-ontvangende bedrijf (of de omzet van het betrokken produkt, indien de subsidie daaraan gebonden was) in het voorafgaande kalenderjaar, gecorrigeerd met het percentage van de inflatie in de periode van twaalf maanden voorafgaande aan de maand van toekenning van de subsidie.

• 6. Bij het vaststellen van het totale subsidiëringspercentage in een bepaald jaar, worden de subsidies die in het kader van verschillende regelingen en door verschillende overheden op het grondgebied van een Lid zijn verleend bij elkaar opgeteld.

• 7. Subsidies die voor de datum van inwerkingtreding van de WTO-Overeenkomst ten behoeve van een toekomstige produktie zijn toegekend, worden bij de berekening van het totale subsidiepercentage in aanmerking genomen.

• 8. Subsidies waartegen op grond van de bepalingen van deze Overeenkomst geen acties kunnen worden ingesteld, worden bij de berekening van de hoogte van de subsidie ingevolge artikel 6, lid 1, onder a., buiten beschouwing gelaten.

Bijlage V. PROCEDURES VOOR HET VERZAMELEN VAN INLICHTINGEN OVER ERNSTIGE SCHADE

• 1. Elk Lid verleent zijn medewerking bij het verzamelen van bewijsmateriaal dat door een panel, overeenkomstig de procedures van artikel 7, leden 4, 5 en 6, moet worden onderzocht. Zodra op artikel 7, lid 4 een beroep is gedaan, delen de partijen bij het geschil en de eventueel betrokken derde landen die Lid zijn het DSB mede welke instantie belast is met de toepassing van deze bepaling op hun grondgebied en welke procedures gevolgd moeten worden om aan de aanvragen om inlichtingen te voldoen.

• 2. Worden vraagstukken op grond van artikel 7, lid 4, aan het DSB voorgelegd, dan opent het DSB op verzoek de procedure om van de overheid van het subsidieverlenende Lid de informatie te verkrijgen die nodig is om het bestaan en de hoogte van de subsidie en de waarde van de totale omzet van de gesubsidieerde bedrijven vast te stellen en de informatie die nodig is om de schade te onderzoeken die door het gesubsidieerde produkt wordt veroorzaakt343. Om de nodige inlichtingen te verkrijgen, alsmede uitleg en nadere gegevens over de informatie waarover de partijen bij een geschil in het kader van de in Deel VII omschreven kennisgevingsprocedures beschikken344 kan deze procedure, zo nodig, het voorleggen van vragen inhouden aan de overheid van het subsidieverlenende Lid en aan de overheid van het Lid dat de klacht heeft ingediend.

• 3. Zijn er gevolgen op de markten van derde landen, dan kan een partij bij een geschil ook door het voorleggen van vragen aan de overheid van het derde land de inlichtingen inwinnen die nodig zijn om de schadelijke gevolgen te onderzoeken en die anders redelijkerwijze niet verkregen kunnen worden bij het Lid dat de klacht heeft ingediend of het subsidieverlenende Lid. Dit voorschrift moet zo worden toegepast dat geen onredelijke last wordt gelegd op het derde land dat Lid is. Met name kan van dit Lid niet verwacht worden dat het speciaal daarvoor een markt- of prijsonderzoek verricht. Dit Lid verstrekt de inlichtingen waarover het reeds beschikt of die het gemakkelijk kan verkrijgen (bijv. de meest recente statistische gegevens waarover de bureaus voor de statistiek reeds beschikken maar die nog niet zijn gepubliceerd, douanegegevens over de invoer en de aangegeven waarde van de betrokken produkten enz.). Indien een partij bij een geschil echter op eigen kosten een diepgaand marktonderzoek verricht, verlenen de autoriteiten van het derde land dat Lid is de nodige medewerking aan de persoon of organisatie die dit onderzoek verricht en geven deze persoon of organisatie toegang tot alle informatie die normalerwijze door de overheid niet als vertrouwelijk wordt beschouwd.

• 4. Het DSB wijst een vertegenwoordiger aan die bij het verzamelen van inlichtingen medewerking verleent. De enige taak van die vertegenwoordiger is ervoor te zorgen dat de informatie die nodig is voor het multilaterale onderzoek van het geschil tijdig wordt bijeengebracht, zodat dit onderzoek op korte termijn kan plaatsvinden. De vertegenwoordiger kan met name voorstellen doen over de meest doelmatige wijze om de nodige inlichtingen op te vragen en de partijen tot medewerking aansporen.

• 5. De procedure voor het verzamelen van inlichtingen als in de leden 2, 3 en 4 omschreven wordt binnen 60 dagen nadat de kwestie ingevolge artikel 7, lid 4, naar het DSB is verwezen, afgesloten. De inlichtingen die bij deze procedure zijn verkregen, worden het door het DSB ingestelde panel voorgelegd overeenkomstig het bepaalde in Deel X. Deze inlichtingen omvatten, onder meer, gegevens over de hoogte van de betrokken subsidie (en, indien van toepassing, de waarde van de totale omzet van de gesubsidieerde bedrijven), de prijzen van het gesubsidieerde produkt, de prijzen van het niet-gesubsidieerde produkt, de prijzen van andere leveranciers op de markt, wijzigingen in het aanbod van het gesubsidieerde produkt op de betrokken markt en wijzigingen in het marktaandeel. Zij omvatten ook de stukken die ter weerlegging van de klacht zijn voorgelegd, alsmede de aanvullende inlichtingen die het panel dienstig acht om conclusies te trekken.

• 6. Heeft/hebben het subsidieverlenende Lid en/of het derde land dat Lid is bij de procedure voor het verzamelen van de inlichtingen geen medewerking verleend, dan baseert het Lid dat de klacht heeft ingediend de bewering inzake ernstige schade op het beschikbare bewijsmateriaal en op feiten en omstandigheden in verband met het gebrek aan medewerking van het subsidieverlenende Lid en/of het derde land dat Lid is. Indien gegevens niet beschikbaar zijn ten gevolge van het gebrek aan medewerking van het subsidieverlenende Lid en/of het derde land dat Lid is, kan het panel het dossier zo nodig aanvullen en daarbij uitgaan van de meest betrouwbare informatie die op andere wijze beschikbaar is.

• 7. Bij het opstellen van zijn bevindingen, dient het panel ongunstige conclusies te verbinden aan het niet-verlenen van medewerking door een partij die bij het verzamelen van inlichtingen was betrokken.

• 8. Indien het panel besluit dat het dienstig is de meest betrouwbare informatie die beschikbaar is te gebruiken of ongunstige conclusies te trekken, houdt het rekening met het advies van de overeenkomstig punt 4 aangewezen vertegenwoordiger van het DSB over de redelijkheid van verzoeken om inlichtingen en de inspanningen van partijen om tijdig aan deze verzoeken te voldoen.

• 9. De procedure voor het verzamelen van inlichtingen beperkt de mogelijkheid van het panel niet alle aanvullende inlichtingen op te vragen die het van essentieel belang acht om het geschil te regelen, en die bij het verzamelen van inlichtingen niet op adequate wijze zijn gevraagd of bijeengebracht. Het panel dient normalerwijze geen gegevens ter aanvulling van een dossier op te vragen indien deze gegevens de positie van een bepaalde partij zouden versterken, terwijl het ontbreken van die inlichtingen in het dossier juist het gevolg is van de onredelijke niet-medewerking van die partij bij het verzamelen van inlichtingen.

Bijlage VI. PROCEDURES VOOR HET ONDERZOEK TER PLAATSE OVEREENKOMSTIG ARTIKEL 12, LID 6

• 1. Bij de opening van een onderzoek dienen de autoriteiten van het exporterende Lid en de ondernemingen waarvan bekend is dat zij belang hebben bij de procedure ervan in kennis te worden gesteld dat het voornemen bestaat een onderzoek ter plaatse in te stellen.

• 2. Indien in buitengewone omstandigheden het voornemen bestaat deskundigen die niet in overheidsdienst zijn in het onderzoekteam op te nemen, dienen de ondernemingen en de autoriteiten van het exporterende Lid daarvan in kennis te worden gesteld. Er dient in passende sancties te worden voorzien voor het geval dat de deskundigen die niet in overheidsdienst zijn niet aan de eisen inzake de behandeling van vertrouwelijke gegevens voldoen.

• 3. De normale handelwijze dient erin te bestaan dat voordat de definitieve datum van het bezoek wordt vastgesteld, de uitdrukkelijke toestemming van de betrokken ondernemingen in het exporterende Lid wordt verkregen.

• 4. Zodra de betrokken ondernemingen hiervoor toestemming hebben gegeven, stellen de met onderzoek belaste autoriteiten de autoriteiten van het exporterende Lid in kennis van de namen en adressen van de te bezoeken ondernemingen en de overeengekomen data.

• 5. De betrokken ondernemingen dienen ruim van tevoren van het voorgenomen bezoek in kennis te worden gesteld.

• 6. Bezoeken die ten doel hebben de vragenlijst toe te lichten vinden slechts op verzoek van de exporterende onderneming plaats. Wordt een dergelijk verzoek gedaan, dan stellen de met onderzoek belaste autoriteiten zich ter beschikking van de onderneming: dit bezoek mag slechts plaatsvinden indien a. de autoriteiten van het importerende Lid dit mededelen aan de vertegenwoordigers van de regering van het betrokken Lid, en b. indien laatstgenoemden daartegen geen bezwaar maken.

• 7. Daar een bezoek ter plaatse voornamelijk ten doel heeft de verstrekte gegevens te verifiëren of aanvullende informatie te verzamelen, dient het plaats te vinden nadat het antwoord op de vragenlijst is ontvangen, tenzij de onderneming ermee instemt dat het bezoek eerder plaatsvindt en de overheid van het exporterende Lid door de met onderzoek belaste autoriteiten van het eerdere bezoek op de hoogte is gesteld en daartegen geen bezwaar maakt. Voorts dient de normale handelwijze erin te bestaan de betrokken ondernemingen voor het bezoek in kennis te stellen van de algemene aard van de te verifiëren inlichtingen en van alle verdere informatie die dient te worden verstrekt, hetgeen echter niet belet dat ter plaatse nadere bijzonderheden kunnen worden gevraagd in het licht van de ontvangen informatie.

• 8. Vragen van de autoriteiten of ondernemingen van het exporterende Lid die van wezenlijk belang zijn voor het welslagen van het bezoek ter plaatse dienen zo veel mogelijk te worden beantwoord voordat het bezoek plaatsvindt.

Bijlage VII. DE IN ARTIKEL 27, LID 2, ONDER A) BEDOELDE LEDEN DIE ONTWIKKELINGSLANDEN ZIJN

De Leden die ontwikkelingslanden zijn waarop, ingevolge artikel 27, lid 2, onder a., het bepaalde in artikel 3, lid 1, onder a., niet van toepassing is, zijn:

• a. De landen die lid zijn van de WTO en die door de Verenigde Naties als minstontwikkeld zijn aangewezen.

• b. De volgende ontwikkelingslanden die Lid zijn van de WTO en waarvoor de regels gelden die ingevolge artikel 27, lid 2, onder b), van toepassing zijn op andere Leden die ontwikkelingslanden zijn zodra het BNP per hoofd van de bevolking $ 1.000 dollar per jaar bedraagt345: Bolivië, Dominicaanse Republiek, Egypte, Filippijnen, Ghana, Guatemala, Guyana, India, Indonesië, Ivoorkust, Kameroen, Kenia, Kongo, Marokko, Nicaruaga, Nigeria, Pakistan, Senegal, Sri Lanka en Zimbabwe.

Overeenkomst inzake vrijwaringsmaatregelen

De Leden,

Rekening houdend met de algemene doelstelling van de Leden die erin bestaat het op de GATT 1994 gebaseerde wereldhandelssysteem te verbeteren en te versterken;

Erkennend dat de disciplines van de GATT 1994 moeten worden verduidelijkt en versterkt, inzonderheid die van artikel XIX daarvan (Noodmaatregelen inzake de invoer van bepaalde produkten), dat het multilateraal toezicht op vrijwaringsmaatregelen moet worden hersteld en dat maatregelen die aan dit toezicht ontsnappen moeten worden opgeheven;

Erkennend dat structurele aanpassingen belangrijk zijn en dat de concurrentie op de internationale markten eerder moet worden vergroot dan beperkt; en

Erkennend bovendien dat daartoe een op alle Leden van toepassing zijnde en op de grondbeginselen van de GATT 1994 gebaseerde omvattende overeenkomst nodig is;

Zijn het volgende overeengekomen:

Artikel 1. Algemeen

Deze Overeenkomst stelt regels vast voor de toepassing van vrijwaringsmaatregelen, waaronder dient te worden verstaan de maatregelen bedoeld in artikel XIX van de GATT 1994.

Artikel 2. Voorwaarden

• 1 Een Lid 346 mag een vrijwaringsmaatregel slechts op een produkt toepassen indien dat Lid in overeenstemming met onderstaande bepalingen heeft vastgesteld dat dat produkt op zijn grondgebied wordt ingevoerd in dermate toegenomen hoeveelheden, absoluut of in verhouding tot de binnenlandse produktie, en onder zodanige voorwaarden dat ernstig nadeel wordt of dreigt te worden berokkend aan de binnenlandse industrie die soortgelijke of rechtstreeks concurrerende produkten vervaardigt.

• 2 Vrijwaringsmaatregelen worden toegepast op een produkt dat wordt uitgevoerd, ongeacht de herkomst daarvan.

Artikel 3. Onderzoek

• 1 Een Lid mag een vrijwaringsmaatregel slechts toepassen nadat de bevoegde autoriteiten van dat Lid een onderzoek hebben verricht in overeenstemming met procedures die van tevoren zijn vastgesteld en in overeenstemming met artikel X van de GATT 1994 openbaar zijn gemaakt. Dit onderzoek moet ook de publikatie omvatten van een bericht om alle betrokken partijen naar behoren op de hoogte te brengen, alsmede hoorzittingen of andere passende middelen om de invoerders, uitvoerders en andere belanghebbende partijen in staat te stellen bewijsmateriaal in te dienen, hun standpunt kenbaar te maken, en te antwoorden op de uiteenzettingen van andere partijen en hun zienswijze kenbaar maken omtrent ondermeer het feit of de toepassing van een vrijwaringsmaatregel al dan niet in het algemeen belang zou zijn. De bevoegde autoriteiten publiceren een verslag met hun bevindingen en gemotiveerde conclusies over alle relevante feitelijke en juridische kwesties.

• 2 Inlichtingen die vanwege hun aard vertrouwelijk zijn of die vertrouwelijk worden verstrekt, worden, na opgave van redenen, vertrouwelijk behandeld door de bevoegde autoriteiten. Deze inlichtingen worden niet bekengemaakt dan na machtiging van de partij die ze heeft verstrekt. Partijen die vertrouwelijke inlichtingen verstrekken, kunnen worden verzocht niet-vertrouwelijke samenvattingen daarvan te verschaffen of, indien deze partijen verklaren dat de betrokken inlichtingen niet kunnen worden samengevat, de redenen waarom geen samenvatting kan worden verstrekt. Indien de bevoegde autoriteiten echter van mening zijn dat een verzoek om vertrouwelijke behandeling niet gegrond is en indien de betrokken partij de inlichtingen niet openbaar wil maken noch machtiging wil geven tot bekendmaking ervan in algemene bewoordingen of in de vorm van een samenvatting hebben zij het recht met de betrokken inlichtingen geen rekening te houden, tenzij hun op overtuigende wijze, uit passende bron, kan worden aangetoond dat de inlichtingen juist zijn.

Artikel 4. Vaststelling van ernstige schade of de dreiging daarvan

• 1 Voor de toepassing van deze Overeenkomst dient te worden verstaan onder:

  • a. ernstige schade: een belangrijke algemene verslechtering van de positie van een binnenlandse industrie;

  • b. dreiging van ernstige schade: ernstige schade die duidelijk nakend is, in overeenstemming met de bepalingen van lid 2 hieronder. De vaststelling dat er een dreiging van ernstige schade bestaat moet zijn gebaseerd op feiten en niet louter op beweringen, vermoedens of vage mogelijkheden; en

  • c. binnenlandse industrie: voor het vaststellen van de schade of de dreiging daarvan wordt onder binnenlandse industrie verstaan alle binnenlandse producenten van soortgelijke of rechtstreeks concurrerende produkten die bedrijvig zijn op het grondgebied van een Lid, of die waarvan de gezamenlijke produktie van soortgelijke of rechtstreeks concurrerende produkten een groot deel van de totale binnenlandse produktie van deze produkten vormt.

• 2

  • a. Bij dit onderzoek dat dient om vast te stellen of de toegenomen invoer ernstige schade heeft berokkend of dreigt te berokkenen aan een binnenlandse industrie in de zin van deze Overeenkomst, moeten de bevoegde autoriteiten alle ter zake dienende factoren van objectieve en kwantificeerbare aard evalueren die van invloed zijn op de situatie van die industrie, met name het tempo en de omvang van de stijging van de invoer van het betrokken produkt in absolute en relatieve cijfers, het door de toegenomen invoer ingepalmde deel van de binnenlandse markt, wijzigingen in het peil van de verkoop, produktie, produktiviteit, capaciteitsbenutting, winst en verlies en werkgelegenheid.

  • b. De vaststelling als bedoeld in sub a. wordt niet gedaan tenzij dit onderzoek, op basis van objectief bewijsmateriaal, aantoont dat er een oorzakelijk verband bestaat tussen de toegenomen invoer van het betrokken produkt en de ernstige schade of dreiging daarvan. Wanneer andere factoren dan de toegenomen invoer op hetzelfde ogenblik schade berokkenen aan de binnenlandse industrie, mag dergelijke schade niet worden toegeschreven aan de toegenomen invoer.

  • c. De bevoegde autoriteiten publiceren onverwijld, in overeenstemming met de bepalingen van artikel 3, een uitvoerige analyse van de onderzochte zaak alsook een bewijs van het relevante karakter van de onderzochte factoren.

Artikel 5. Toepassing van vrijwaringsmaatregelen

• 1 Vrijwaringsmaatregelen worden slechts toegepast voor zover zij noodzakelijk zijn om ernstige schade te voorkomen of te herstellen en om aanpassing te vergemakkelijken. Indien een kwantitatieve beperking wordt toegepast mag de omvang van de invoer door een dergelijke maatregel niet beneden het niveau van een recente periode worden gebracht dat overeenkomt met de gemiddelde invoer van de voorbije drie representatieve jaren waarvoor statistieken beschikbaar zijn, tenzij duidelijk wordt aangetoond dat een ander niveau noodzakelijk is om ernstige schade te voorkomen of te herstellen. De Leden dienen de maatregelen te kiezen die het meest geschikt zijn om deze doelstellingen te verwezenlijken.

• 2

  • a. In gevallen waarin een contingent onder de landen van levering is verdeeld, kan het Lid dat de beperkingen toepast ten aanzien van de toewijzing van aandelen in het contingent tot overeenstemming trachten te komen met alle andere Leden die een aanmerkelijk belang hebben bij de levering van het betrokken produkt. In gevallen waarin deze methode redelijkerwijze niet uitvoerbaar is, kent het betrokken Lid aan de Leden die een aanmerkelijk belang hebben bij de levering van het produkt aandelen toe evenredig aan de totale hoeveelheid of waarde van de invoer van het produkt hetwelk deze Leden gedurende een vorige representatieve periode leverden, daarbij terdege rekening houdende met de eventuele bijzondere factoren die van invloed waren of zijn op de handel in dit produkt.

  • b. Een Lid kan afwijken van de bepalingen sub a. op voorwaarde dat het in artikel 12, lid 3, bedoelde overleg plaatvindt onder de auspiciën van de bij artikel 13, lid 1 ingestelde Commissie Vrijwaringsmaatregelen en dat aan deze Commissie duidelijk is aangetoond dat i. de invoer uit bepaalde Leden is toegenomen met een percentage dat niet in verhouding staat tot de totale toename van de invoer van het betrokken produkt in de representatieve periode, ii. de redenen waarom van de bepalingen sub a. wordt afgeweken gegrond zijn, en iii. de voorwaarden van die afwijking billijk zijn voor alle leveranciers van het betrokken produkt. De duur van dergelijke maatregelen wordt beperkt tot de initiële periode bedoeld in artikel 7, lid 1. Bovengenoemde afwijking wordt niet toegestaan indien er dreiging van ernstige schade bestaat.

Artikel 6. Voorlopige vrijwaringsmaatregelen

Wanneer, onder kritieke omstandigheden, uitstel moeilijk te herstellen schade zou veroorzaken, mag een Lid een voorlopige vrijwaringsmaatregel nemen nadat vooraf is vastgesteld dat er duidelijke bewijzen zijn dat de toegenomen invoer ernstige schade heeft veroorzaakt of dreigt te veroorzaken. De duur van de voorlopige maatregel mag niet meer bedragen dan 200 dagen, gedurende welke periode moet worden voldaan aan de ter zake geldende voorschriften van artikelen 2 tot en met 7 en artikel 12. Dergelijke maatregelen dienen de vorm aan te nemen van tariefverhogingen die terstond worden terugbetaald indien het daaropvolgend onderzoek, bedoeld in artikel 4, lid 2, niet aantoont dat de toegenomen invoer ernstige schade heeft berokkend of dreigde te berokkenen aan een binnenlandse industrie. De duur van een dergelijke voorlopige maatregel wordt gerekend als een deel van de initiële periode en van de verlengingen als bedoeld in leden 1, 2 en 3 van artikel 7.

Artikel 7. Duur en herziening van vrijwaringsmaatregelen

• 1 Een Lid mag vrijwaringsmaatregelen slechts zolang toepassen als noodzakelijk is om ernstige schade te voorkomen of herstellen en om aanpassing te vergemakkelijken. De periode mag niet langer zijn dan vier jaar, tenzij zij overeenkomstig lid 2 wordt verlengd.

• 2 De in punt 10 bedoelde periode kan worden verlengd op voorwaarde dat de bevoegde autoriteiten van het importerend Lid, in overeenstemming met de in artikelen 2, 3, 4 en 5 vermelde procedures hebben vastgesteld dat de vrijwaringsmaatregel noodzakelijk blijft om ernstige schade te voorkomen of te verhelpen, dat er bewijzen zijn dat de industrie aanpassingen doorvoert en op voorwaarde dat de relevante bepalingen van artikelen 8 en 12 in acht worden genomen.

• 3 De totale toepassingsperiode van een vrijwaringsmaatregel, met inbegrip van de toepassingsperiode van een voorlopige maatregel, de initiële toepassingsperiode en elke verlenging daarvan mag niet langer zijn dan acht jaar.

• 4 Om de aanpassing te vergemakkelijken wanneer de verwachte duur van een vrijwaringsmaatregel, waarvan overeenkomstig de bepalingen van artikel 12, lid 1, kennisgeving is gedaan, meer dan een jaar bedraagt, moet het Lid dat de maatregel toepast die op gezette tijden tijdens de uitvoeringsperiode geleidelijk liberaliseren. Indien de duur van de maatregel langer is dan drie jaar moet het Lid dat een dergelijke maatregel toepast de situatie niet later dan halverwege de uitvoeringsperiode van de maatregel opnieuw bezien, en indien aangewezen, de maatregel intrekken of het liberaliseringstempo opvoeren. Een maatregel die krachtens lid 2 wordt verlengd mag niet restrictiever zijn dan hij aan het eind van de initiële periode was en moet verder worden geliberaliseerd.

• 5 De invoer van een produkt die onderworpen is geweest aan een na de datum van inwerkingtreding van de WTO-Overeenkomst genomen vrijwaringsmaatregel mag niet opnieuw aan een vrijwaringsmaatregel worden onderworpen gedurende een periode gelijk aan vorige toepassingsperiode van dergelijke maatregel met dien verstande dat de periode van niet-toepassing ten minste twee jaar moet bedragen.

• 6 In afwijking van de bepalingen van lid 5 mag een vrijwaringsmaatregel met een duur van 180 dagen of minder opnieuw op de invoer van een produkt worden toegepast als:

  • a. tenminste één jaar is verlopen sedert de datum van instelling van een vrijwaringsmaatregel op de invoer van dat produkt; en

  • b. dergelijke vrijwaringsmaatregel in de onmiddellijk aan de datum van instelling van de maatregel voorafgaande periode van vijf jaar niet meer dan twee keer op hetzelfde produkt is toegepast.

Artikel 8. Concessies en andere verplichtingen

• 1 Een Lid dat voornemens is een vrijwaringsmaatregel toe te passen of een vrijwaringsmaatregel wil verlengen streeft ernaar een niveau van concessies en andere verplichtingen in stand te houden dat in wezen gelijk is aan het niveau dat krachtens de GATT 1994 bestaat tussen hem en de exporterende Leden die door een dergelijke maatregel zouden worden getroffen, in overeenstemming met de bepalingen van artikel 12, lid 3. Om dit doel te bereiken kunnen de betrokken Leden overeenstemming bereiken over alle afdoende middelen om de nadelige gevolgen van de maatregel op hun handelsverkeer te compenseren.

• 2 Indien tijdens het in artikel 12, lid 3, bedoelde overleg geen overeenstemming wordt bereikt binnen de 30 dagen, staat het de getroffen exporterende Leden vrij binnen de 90 dagen na toepassing van de maatregel en bij het verstrijken van een termijn van 30 dagen te rekenen vanaf de dag waarop de Raad voor de handel in goederen de schriftelijke kennisgeving van die opschorting heeft ontvangen, de toepassing op te schorten van in wezen gelijkwaardige concessies of andere verplichtingen uit hoofde van de GATT 1994 op het handelsverkeer van het Lid dat de vrijwaringsmaatregel toepast en waarvan de opschorting niet wordt afgekeurd door de Raad voor de handel in goederen.

• 3 Het in lid 2 bedoelde recht tot opschorting mag niet worden uitgeoefend tijdens de eerste drie jaar dat een vrijwaringsmaatregel wordt toegepast, op voorwaarde dat de vrijwaringsmaatregel is genomen als gevolg van een absolute toename van de invoer en in overeenstemming is met de bepalingen van deze Overeenkomst.

Artikel 9. Leden die ontwikkelingslanden zijn

• 1 Er mogen geen vrijwaringsmaatregelen worden toegepast op een produkt van oorsprong uit een Lid dat een ontwikkelingsland is zolang het aandeel van dit Lid in de invoer van het betrokken produkt in het importerend Lid niet groter is dan 3 percent, op voorwaarde dat Leden die ontwikkelingslanden zijn en wier aandeel in de invoer kleiner is dan 3 percent tezamen niet meer dan 9 percent van de totale invoer van het betrokken produkt vertegenwoordigen347.

• 2 Een Lid dat een ontwikkelingsland is heeft het recht de in artikel 7, lid 3, vermelde maximumperiode voor de toepassing van een vrijwaringsmaatregel met ten hoogste twee jaar te verlengen. In afwijking van de bepalingen van artikel 7, lid 5, heeft een Lid dat een ontwikkelingsland is het recht een vrijwaringsmaatregel opnieuw toe te passen op de invoer van een produkt die het voorwerp heeft uitgemaakt van een dergelijke maatregel, genomen na de datum van inwerkingtreding van de WTO-Overeenkomst, na een periode die gelijk is aan de helft van de periode gedurende welke een dergelijke maatregel vroeger is toegepast, met dien verstande dat de periode van niet-toepassing ten minste twee jaar moet bedragen.

Artikel 10. Reeds bestaande maatregelen van artikel XIX

De Leden moeten alle krachtens artikel XIX van de GATT 1947 genomen vrijwaringsmaatregelen die op de datum van inwerkingtreding van de WTO-Overeenkomst bestonden binnen de acht jaar na de datum waarop zij voor het eerst zijn toegepast of vijf jaar na de datum van inwerkingtreding van de WTO-Overeenkomst, indien deze datum later valt, beëindigen.

Artikel 11. Verbod en opheffing van bepaalde maatregelen

• 1

  • a. Een Lid mag met betrekking tot de invoer van bepaalde produkten geen noodmaatregelen, als bedoeld in artikel XIX van de GATT 1994, nemen noch nastreven tenzij die maatregelen in overeenstemming zijn met de overeenkomstig deze Overeenkomst toegepaste bepalingen van dat artikel.

  • b. Een Lid mag bovendien geen vrijwillige exportbeperkingen, marktordeningsregelingen, of alle andere soortgelijke maatregelen met betrekking tot de export of import nastreven, nemen noch handhaven348,349. Hiertoe behoren door een afzonderlijk Lid genomen maatregelen alsook maatregelen op grond van overeenkomsten, regelingen en memoranda van overeenstemming tussen twee of meer Leden.

    Dergelijke maatregelen die van toepassing zijn op de datum van inwerkingtreding van de WTO-Overeenkomst moeten in overeenstemming worden gebracht met deze Overeenkomst of in overeenstemming met lid 2 geleidelijk worden opgeheven.

  • c. Deze Overeenkomst is niet van toepassing op maatregelen die een Lid nastreeft, neemt of handhaaft op grond van andere bepalingen van de GATT 1994 dan die van artikel XIX en andere multilaterale handelsovereenkomsten in bijlage 1A dan deze Overeenkomst of krachtens in het kader van de GATT 1994 gesloten protocollen, overeenkomsten of regelingen.

• 2 De in lid 1 b. bedoelde maatregelen worden geleidelijk opgeheven overeenkomstig tijdschema's die de betrokken Leden uiterlijk 180 dagen na de datum van inwerkingtreding van de WTO-Overeenkomst aan het Commissie voor vrijwaringsmaatregelen voorleggen. Overeenkomstig deze tijdschema's moeten alle in lid 1 bedoelde maatregelen binnen een periode van ten hoogste vier jaar na de datum van inwerkingtreding van de WTO-Overeenkomst geleidelijk worden opgeheven of in overeenstemming worden gebracht met deze Overeenkomst, met uitzondering van één specifieke maatregel per importerend Lid350 die tot uiterlijk 31 december 1999 mag worden gehandhaafd. Dergelijke uitzonderingen moeten onderling worden overeengekomen tussen de rechtstreeks betrokken Leden en binnen de 90 dagen na de inwerkingtreding van de WTO-Overeenkomst voor onderzoek en goedkeuring aan de Commissie Vrijwaringsmaatregelen worden voorgelegd. In de bijlage bij deze Overeenkomst is een maatregel opgenomen waarvoor is overeengekomen dat hij onder deze uitzondering valt.

• 3 De Leden mogen de goedkeuring of handhaving door openbare en particuliere ondernemingen van niet-gouvernementele maatregelen gelijkwaardig aan die bedoeld in lid 1 niet stimuleren noch steunen.

Artikel 12. Kennisgeving en Overleg

• 1 Een Lid stelt de Commissie Vrijwaringsmaatregelen onverwijld in kennis van:

  • a. het openen van een onderzoek met betrekking tot ernstige schade of de dreiging daarvan en de redenen daarvoor;

  • b. het vaststellen van ernstige schade of de dreiging daarvan veroorzaakt door een toegenomen import; en

  • c. het nemen van een besluit tot toepassing of verlenging van een vrijwaringsmaatregel.

• 2 Bij het doen van de in lid 1 sub b. en c. bedoelde kennisgeving moet het Lid dat van plan is een vrijwaringsmaatregel toe te passen of te verlengen de Commissie Vrijwaringsmaatregelen alle ter zake dienende informatie verstrekken, waaronder het bewijs dat de toegenomen invoer ernstige schade heeft veroorzaakt of dreigt te veroorzaken, een precieze omschrijving van het betrokken produkt en de voorgenomen maatregel, de voor de invoering van de maatregel voorziene datum, de verwachte geldigheidstermijn en het tijdschema voor de geleidelijke liberalisering. Indien het om de verlenging van een maatregel gaat, moet ook het bewijs worden geleverd dat de betrokken industrie aanpassingen doorvoert. De Raad voor de handel in goederen of de Commissie Vrijwaringsmaatregelen mogen van het Lid dat de maatregel overweegt toe te passen of te verlengen de aanvullende informatie vragen die zij nodig achten.

• 3 Een Lid dat overweegt een vrijwaringsmaatregel toe te passen of te verlengen dient voldoende gelegenheid te bieden tot voorafgaand overleg met de Leden die een aanmerkelijk belang hebben als exporteur van het betrokken produkt, met het oog op inter alia het onderzoek van de uit hoofde van lid 2 verstrekte informatie, de uitwisseling van meningen over de maatregel en het bereiken van overeenstemming over de wijze waarop de in artikel 8, lid 1, vermelde doelstelling kan worden verwezenlijkt.

• 4 Een Lid moet kennisgeving doen aan de Commissie Vrijwaringsmaatregelen voordat een voorlopige vrijwaringsmaatregel als bedoeld in artikel 6 wordt genomen. Het overleg wordt aangevat onmiddellijk nadat de maatregel is genomen.

• 5 De resultaten van het in dit artikel bedoelde overleg alsook die van de in artikel 7, lid 4, bedoelde onderzoeken halverwege, alle vormen van compensatie bedoeld in artikel 8, lid 1 en de voorgenomen opschortingen of concessies en andere verplichtingen als bedoeld in artikel 8, lid 2, dienen door de betrokken Leden onverwijld ter kennis te worden gebracht van de Raad voor de handel in goederen.

• 6 De Leden brengen hun wetten, regelingen en administratieve procedures met betrekking tot vrijwaringsmaatregelen alsook alle wijzigingen daaraan onverwijld ter kennis van de Commissie Vrijwaringsmaatregelen.

• 7 Leden die de in artikel 10 en artikel 11, lid 1, beschreven maatregelen handhaven die bestaan op de datum waarop de WTO-Overeenkomst in werking treedt, dienen uiterlijk 60 dagen na de datum van inwerkingtreding van de WTO-Overeenkomst aan het Commissie Vrijwaringsmaatregelen kennis te geven van dergelijke maatregelen.

• 8 Elk Lid mag de Commissie Vrijwaringsmaatregelen kennis geven van alle wetten, regelingen, administratieve procedures en alle maatregelen of acties die onder deze Overeenkomst vallen en waarvan geen kennisgeving is gedaan door andere Leden die daar krachtens deze Overeenkomst toe zijn gehouden.

• 9 Elk Lid mag het Commissie Vrijwaringsmaatregelen kennis geven van alle niet-gouvernementele maatregelen als bedoeld in artikel 11.

• 10 Alle kennisgevingen aan de Raad voor de handel in goederen als bedoeld in deze Overeenkomst worden normaal via het Commissie Vrijwaringsmaatregelen gedaan.

• 11 De bepalingen van deze Overeenkomst met betrekking tot kennisgeving verplichten een Lid niet tot bekendmaking van vertrouwelijke gegevens waardoor de handhaving der wetten zou worden belemmerd, dan wel het openbare belang of de wettige handelsbelangen van bepaalde openbare of particuliere ondernemingen zouden worden geschaad.

Artikel 13. Toezicht

• 1 Er wordt een Commissie Vrijwaringsmaatregelen ingesteld die onder de bevoegdheid staat van de Raad voor de handel in goederen en waaraan alle Leden kunnen deelnemen die daartoe de wens te kennen geven. De Commissie wordt belast met:

  • a. het toezicht op en het jaarlijks uitbrengen van verslag aan de Raad voor de handel in goederen over de algemene tenuitvoerlegging van deze Overeenkomst en het formuleren van aanbevelingen ter verbetering daarvan;

  • b. het nagaan, op verzoek van een getroffen Lid, of de procedurevoorschriften van deze Overeenkomst al dan niet zijn nageleefd in verband met een vrijwaringsmaatregel en het rapporteren van zijn bevindingen aan de Raad voor de handel in goederen;

  • c. het verlenen van bijstand aan Leden, indien zij daarom verzoeken, in het overleg dat zij overeenkomstig de bepalingen van deze Overeenkomst voeren;

  • d. het onderzoek van maatregelen die onder artikel 10 en artikel 11, lid 1, vallen, het toezicht op de geleidelijke afschaffing van dergelijke maatregelen en, indien nodig, het uitbrengen van verslag aan de Raad voor de handel in goederen;

  • e. het nagaan, op verzoek van het Lid dat een vrijwaringsmaatregel neemt, of voorstellen tot opschorting van concessies of andere verplichtingen „in wezen gelijkwaardig” zijn en, indien nodig, het uitbrengen van verslag aan de Raad voor de handel in goederen;

  • f. de ontvangst en het onderzoek van alle kennisgevingen waarin deze Overeenkomst voorziet en, indien nodig, het uitbrengen van verslag aan de Raad voor de handel in goederen; en

  • g. het uitvoeren van alle andere taken in verband met deze Overeenkomst die de Raad voor de handel in goederen zou vaststellen.

• 2 Om de Commissie bij de uitoefening van haar toezichthoudende functie te helpen, stelt het Secretariaat jaarlijks een feitenverslag op over de werking van deze Overeenkomst, gebaseerd op kennisgevingen en andere betrouwbare informatie waarover het beschikt.

Artikel 14. Beslechting van geschillen

De bepalingen van artikelen XXII en XXIII van de GATT 1994 als uitgewerkt en toegepast door het Memorandum van Overeenstemming inzake de beslechting van geschillen zijn van toepassing op het overleg en de beslechting van geschillen die in het kader van deze Overeenkomst rijzen.

Bijlage UIZONDERING BEDOELD IN ARTIKEL 11, LID 2

Betrokken Leden	Produkt	Einddatum
EG/Japan	Personenauto's, terreinauto's, lichte bedrijfsvoertuigen, lichte vrachtwagens (tot 5 ton), en dezelfde voertuigen in gedemonteerde staat (CKD-sets).	31 december 1999

BIJLAGE 1B. Algemene overeenkomst betreffende de handel in diensten

De Leden,

Erkennende dat de handel in diensten steeds belangrijker wordt voor de groei en ontwikkeling van de wereldeconomie;

Geleid door de wens een multilateraal kader van beginselen en regels voor de handel in diensten in te stellen, met het oog op de uitbreiding van deze handel onder voorwaarden van doorzichtigheid en geleidelijke liberalisering en als middel om de economische groei van alle handelspartners, alsmede de ontwikkeling van de ontwikkelingslanden te bevorderen;

Geleid door de wens de handel in diensten op korte termijn geleidelijk te liberaliseren door middel van achtereenvolgende multilaterale onderhandelingsronden die gericht zijn op de bevordering van de belangen van alle partijen op basis van wederzijds voordeel en op het bereiken van een globaal evenwicht tussen rechten en plichten, met inachtneming van de nationale beleidsdoelstellingen;

Erkennende dat de Leden het recht hebben de verlening van diensten op hun grondgebied, nu en in de toekomst, aan regelingen te onderwerpen met het oog op nationale beleidsdoelstellingen en dat het, gezien de ongelijke mate van ontwikkeling van de voorschriften inzake dienstverlening in de onderscheiden landen, vooral de ontwikkelingslanden zijn die aan de uitoefening van dit recht behoefte hebben;

Geleid door de wens de ontwikkelingslanden steeds meer bij de handel in diensten te betrekken en de uitbreiding van hun dienstenexport te bevorderen, onder andere door een versterking van de capaciteit van hun binnenlandse dienstensector en een verbetering van de doelmatigheid en het concurrentievermogen van deze sector;

Met name rekening houdend met de ernstige moeilijkheden van de minstontwikkelde landen vanwege hun bijzondere economische situatie en hun behoeften op het gebied van ontwikkeling, handel en financiën;

DEEL I. TOEPASSINGSGEBIED EN DEFINITIES

Artikel I. Toepassingsgebied en definities

• 1 Deze Overeenkomst is van toepassing op maatregelen van Leden die de handel in diensten raken.

• 2 De handel in diensten wordt voor de toepassing van deze Overeenkomst gedefinieerd als de verlening van een dienst:

  • a. vanaf het grondgebied van een Lid naar het grondgebied van een ander Lid;

  • b. binnen het grondgebied van een Lid ten behoeve van de gebruiker van een dienst van een ander Lid;

  • c. door een dienstverlener van een Lid, via een commerciële aanwezigheid op het grondgebied van een ander Lid;

  • d. door een dienstverlener van een Lid, via de aanwezigheid van natuurlijke personen van een Lid op het grondgebied van een ander Lid.

• 3 Voor de toepassing van deze Overeenkomst:

  • a. betekent „maatregelen van Leden” maatregelen genomen door:

    • i. centrale, regionale of lokale overheden en autoriteiten; en

    • ii. niet-gouvernementele organisaties bij de uitoefening van door centrale, regionale of lokale overheden of autoriteiten gedelegeerde bevoegdheden;

    Ieder Lid neemt voor de uitvoering van zijn verplichtingen en verbintenissen ingevolge deze Overeenkomst alle redelijke maatregelen waartoe hij bevoegd is om ervoor te zorgen dat deze op zijn grondgebied door regionale en lokale overheden en autoriteiten, alsmede niet-gouvernementele organisaties in acht worden genomen.

  • b. omvatten „diensten” alle diensten in iedere sector behalve de bij de uitoefening van overheidsgezag verleende diensten;

  • c. betekent „een bij de uitoefening van overheidsgezag verleende dienst” iedere dienst die noch op commerciële basis, noch in concurrentie met een of meer dienstverleners wordt verleend.

DEEL II. ALGEMENE VERPLICHTINGEN EN DISCIPLINES

Artikel II. Meestbegunstiging

• 1 Ten aanzien van alle maatregelen die onder deze Overeenkomst vallen, behandelt ieder Lid diensten en dienstverleners van een ander Lid terstond en onvoorwaardelijk niet ongunstiger dan soortgelijke diensten en dienstverleners uit enig ander land.

• 2 Een Lid mag een met lid 1 strijdige maatregel handhaven, mits een dergelijke maatregel is vermeld in de Bijlage betreffende vrijstellingen van de toepassing van artikel II en aan de voorwaarden daarvan voldoet.

• 3 De bepalingen van deze overeenkomst worden niet zodanig uitgelegd dat een Lid hierdoor wordt verhinderd aangrenzende landen voordelen toe te staan of te verlenen om het handelsverkeer dat beperkt is tot plaatselijk voortgebrachte en verbruikte diensten in naast elkaar liggende grenszones te vergemakkelijken.

Artikel III. Doorzichtigheid

• 1 Ieder Lid maakt alle relevante maatregelen van algemene gelding die met de werking van deze Overeenkomst verband houden of deze raken onmiddellijk bekend en uiterlijk op het moment van hun inwerkingtreding, behalve in noodsituaties. Ondertekent een Lid een internationale overeenkomst die verband houdt met de handel in diensten of deze raakt, dan wordt deze eveneens bekendgemaakt.

• 2 Wanneer de in lid 1 bedoelde bekendmaking niet praktisch uitvoerbaar is, wordt de informatie op een andere wijze ter beschikking van het publiek gesteld.

• 3 Ieder Lid stelt de Raad voor de Handel in Diensten onmiddellijk en ten minste één maal per jaar in kennis van de invoering van nieuwe, of de wijziging van bestaande wetten, regelingen of administratieve richtlijnen die met name van betekenis zijn voor de handel in diensten die onder een van zijn specifieke verbintenissen ingevolge deze Overeenkomst valt.

• 4 Ieder Lid beantwoordt terstond verzoeken van een ander Lid om specifieke informatie over iedere door hem genomen maatregel van algemene gelding of door hem gesloten internationale overeenkomst in de zin van lid 1. Tevens richt ieder Lid een of meer informatiepunten op ten einde, op verzoek, over al deze aangelegenheden, alsmede de aangelegenheden waarvoor de kennisgevingsplicht van lid 3 geldt, informatie aan andere Leden te verstrekken. Deze informatiepunten worden binnen twee jaar na de datum van inwerkingtreding van de Overeenkomst tot oprichting van de WTO (in deze Overeenkomst de „WTO-Overeenkomst” genoemd) opgericht. Voor een individueel Lid dat ontwikkelingsland is kan een zekere flexibiliteit worden overeengekomen wat de termijn voor de oprichting van informatiepunten betreft. Wetten en regelingen behoeven niet bij de informatiepunten te worden neergelegd.

• 5 Is een Lid van oordeel dat een door een ander Lid genomen maatregel de werking van deze Overeenkomst raakt, dan kan hij deze maatregel bij de Raad voor de Handel in Diensten aanmelden.

Artikel IIIbis. Bekendmaking van vertrouwelijke informatie

Geen enkele bepaling van deze Overeenkomst verplicht een Lid tot verstrekking van vertrouwelijke informatie waarvan bekendmaking de rechtshandhaving belemmert, die anderszins met het openbaar belang in strijd is of die schadelijk is voor de rechtmatige handelsbelangen van openbare of particuliere ondernemingen.

Artikel IV. Grotere deelname van de ontwikkelingslanden

• 1 De grotere deelname aan de wereldhandel van de Leden die ontwikkelingsland zijn wordt bevorderd door specifieke, uit onderhandelingen voortvloeiende verbintenissen van de verschillende Leden overeenkomstig de Delen III en IV van deze overeenkomst en die betrekking hebben op:

  • a. de versterking van de binnenlandse capaciteit van de dienstensector van de Leden die ontwikkelingsland zijn en de verbetering van de doelmatigheid en het concurrentievermogen van deze sector, onder andere door toegang tot technologie op commerciële basis;

  • b. de verbetering van hun toegang tot distributiekanalen en informatienetwerken; en

  • c. de liberalisering van de markttoegang in sectoren en vormen van dienstverlening waarvan de export voor hen van belang is.

• 2 Leden die ontwikkelde landen zijn, en voor zover mogelijk ook andere Leden, richten binnen twee jaar na de datum van inwerkingtreding van de WTO-Overeenkomst contactpunten op ter verbetering van de toegang van dienstverleners van de Leden die ontwikkelingslanden zijn tot informatie over hun respectieve markten betreffende:

  • a. de commerciële en technische aspecten van dienstverlening;

  • b. de registratie, erkenning en verkrijging van beroepskwalificaties; en

  • c. de beschikbaarheid van dienstentechnologie.

• 3 Bij de toepassing van de leden 1 en 2 zal bijzondere prioriteit worden verleend aan de Leden die minstontwikkelde landen zijn. Met name zal rekening worden gehouden met de ernstige moeilijkheden van de minstontwikkelde landen bij het aanvaarden van uit de onderhandelingen voortvloeiende specifieke verbintenissen vanwege hun bijzondere economische situatie en hun behoeften op het gebied van ontwikkeling, handel en financiën.

Artikel V. Economische integratie

• 1 Deze Overeenkomst vormt voor geen enkel Lid een beletsel partij te zijn of te worden bij een overeenkomst tot liberalisering van de handel in diensten tussen de bij de overeenkomst aangesloten partijen, op voorwaarde dat een dergelijke overeenkomst:

  • a. een brede sectorale toepassing heeft351, en

  • b. voorziet in de afwezigheid of opheffing tussen partijen van nagenoeg alle vormen van discriminatie in de zin van artikel XVII in de onder a. bedoelde sectoren door middel van:

    • i. opheffing van bestaande discriminerende maatregelen, en/of

    • ii. verbod nieuwe discriminerende maatregelen te nemen of maatregelen die een verdergaande discriminatie inhouden,

    hetzij bij de inwerkingtreding van de overeenkomst, hetzij op basis van een redelijk tijdschema, en met uitzondering van maatregelen die op grond van de artikelen XI, XII, XIV en XIVbis zijn toegestaan.

• 2 Om te beoordelen of aan de voorwaarden van lid 1, onder b., is voldaan, kan de verhouding tussen de overeenkomst en een breder proces van economische integratie of handelsliberalisering tussen de betrokken landen in aanmerking worden genomen.

• 3

  • a. Wanneer ontwikkelingslanden partij zijn bij een overeenkomst van de in lid 1 genoemde soort, wordt bij het onderzoek of aan de voorwaarden van lid 1, en met name die onder b., de nodige flexibiliteit in acht genomen, in overeenstemming met hun ontwikkelingsniveau, zowel in het algemeen als per afzonderlijke sector en subsector.

  • b. In afwijking van lid 6 kan, wanneer uitsluitend ontwikkelingslanden partij zijn bij een in lid 1 bedoelde overeenkomst, een gunstiger behandeling worden toegekend aan rechtspersonen die eigendom zijn van of die bestuurd worden door natuurlijke personen van een van de partijen bij die overeenkomst.

• 4 Elke in lid 1 genoemde overeenkomst wordt opgesteld om de handel tussen de partijen bij die overeenkomst te vereenvoudigen en mag het algemene niveau van belemmeringen in de handel in diensten in de desbetreffende sectoren en subsectoren voor Leden die geen partij bij de overeenkomst zijn niet verhogen in vergelijking met de situatie vóór het bestaan van die overeenkomst.

• 5 Wanneer een Lid bij de sluiting, de uitbreiding of een belangrijke wijziging van een in lid 1 bedoelde overeenkomst voornemens is een specifieke verbintenis in strijd met de voorwaarden in de betrokken lijst in te trekken of te wijzigen, meldt het een dergelijke wijziging of intrekking minstens 90 dagen van tevoren aan, en is de procedure van artikel XXI, leden 2, 3 en 4 van toepassing.

• 6 Een dienstverlener van een ander Lid die een rechtspersoon is naar het recht van een partij bij een in lid 1 genoemde overeenkomst, heeft recht op de krachtens die overeenkomst toegekende behandeling, mits hij betrokken is bij omvangrijke zakelijke transacties op het grondgebied van de partijen bij die overeenkomst.

• 7

  • a. Leden die partij zijn bij een in lid 1 genoemde overeenkomst melden die overeenkomst en iedere uitbreiding of belangrijke wijziging daarvan onmiddellijk bij de Raad voor de Handel in Diensten aan. Ook verstrekken zij de Raad alle eventueel door hem gevraagde relevante informatie. De Raad kan een werkgroep instellen ten einde die overeenkomst, of de uitbreiding of wijziging van die overeenkomst te onderzoeken en de Raad verslag te doen over de verenigbaarheid ervan met dit artikel.

  • b. Leden die partij zijn bij een in lid 1 bedoelde overeenkomst die op basis van een tijdschema wordt uitgevoerd, brengen de Raad voor de Handel in Diensten regelmatig verslag uit over de uitvoering van die overeenkomst. De Raad kan, indien hij dit noodzakelijk acht, een werkgroep instellen ten einde die verslagen te onderzoeken.

  • c. Op basis van de verslagen van de onder a. en b. bedoelde werkgroepen kan de Raad de door hem dienstig geachte aanbevelingen aan de partijen doen.

• 8 Een Lid dat partij bij een in lid 1 bedoelde overeenkomst is, mag geen compensatie vragen voor handelsvoordelen die een ander Lid op grond van die overeenkomst kan verkrijgen.

Artikel Vbis. Overeenkomsten inzake de integratie van arbeidsmarkten

Deze Overeenkomst vormt voor geen enkel Lid een beletsel partij te zijn bij een overeenkomst tot volledige integratie352 van de arbeidsmarkten tussen partijen, mits die overeenkomst:

• a. burgers van partijen bij de overeenkomst vrijstelt van eisen inzake verblijfs- en werkvergunningen;

• b. bij de Raad voor de Handel in Diensten wordt aangemeld.

Artikel VI. Binnenlandse regelingen

• 1 Ieder Lid ziet erop toe dat in de sectoren waarvoor specifieke verbintenissen worden aangegaan, alle maatregelen van algemene gelding die de handel in diensten raken op redelijke, objectieve en onpartijdige wijze worden toegepast.

• 2

  • a. Ieder Lid houdt de rechtbanken, scheidsgerechten, administratieve rechtenbanken of procedures in stand of stelt deze zo snel in, als praktisch mogelijk is, om die administratieve besluiten die de handel in diensten raken op verzoek van een betrokken dienstverlener terstond te onderzoeken, en zo nodig, herzien. Wanneer deze procedures niet onafhankelijk zijn van de instantie die bevoegd is het betrokken administratieve besluit te nemen, zien de Leden erop toe dat de procedures feitelijk in een objectieve en onpartijdige onderzoek voorzien.

  • b. Alinea a. wordt niet zodanig uitgelegd dat van een Lid wordt geëist dat deze rechtbanken of procedures instelt indien dit onverenigbaar is met zijn constitutionele structuur of de aard van zijn rechtsstelsel.

• 3 Indien de verlening van een dienst waarvoor een specifieke verbintenis is aangegaan van een vergunning afhankelijk is, delen de bevoegde autoriteiten van een Lid de aanvrager binnen een redelijke termijn na de indiening van de volgens nationale wetten en regels volledige aanvraag mede welk gevolg zij hieraan hebben gegeven. De bevoegde autoriteiten geven de aanvrager, op verzoek, zonder ongerechtvaardigde vertraging, informatie over de stand van zaken betreffende de aanvraag.

• 4 De Raad voor de Handel in Diensten stelt, eventueel via door hem in te stellen geëigende organen, alle disciplines op die noodzakelijk zijn om ervoor te zorgen dat maatregelen in verband met kwalificaties en procedures, technische normen en vergunningen geen onnodige belemmeringen voor de handel in diensten vormen. Deze disciplines zijn erop gericht ervoor te zorgen dat deze eisen, onder andere,

  • a. gebaseerd zijn op objectieve en doorzichtige criteria, zoals bekwaamheid en het vermogen de dienst te verlenen;

  • b. niet strenger zijn dan noodzakelijk is om de kwaliteit van de dienstverlening te waarborgen;

  • c. in geval van vergunningsprocedures, op zich geen beperking voor de verlening van de dienst vormen.

• 5

  • a. In sectoren waarvoor een Lid specifieke verbintenissen is aangegaan, in afwachting van de inwerkingtreding van de overeenkomstig lid 4 voor deze sectoren opgestelde disciplines, past het Lid geen voorschriften op het gebied van vergunningen, kwalificaties en technische normen toe die de specifieke verbintenissen te niet doen of uithollen:

    • i. waardoor niet aan de in lid 4, onder a., b. of c. omschreven criteria wordt voldaan, en

    • ii. op een wijze die redelijkerwijs niet van dat Lid kon worden verwacht op het moment dat de specifieke verbintenissen voor die sectoren werden aangegaan.

  • b. Bij de beoordeling of een Lid overeenkomstig de verplichting van lid 5, onder a. handelt, wordt rekening gehouden met de door dat Lid toegepaste internationale normen van de bevoegde internationale organisaties353.

• 6 In sectoren waarvoor specifieke verbintenissen ten aanzien van de diensten van deskundigen zijn aangegaan, ziet ieder Lid erop toe dat passende procedures bestaan om de bekwaamheid van deskundigen van een ander Lid te toetsen.

Artikel VII. Erkenning

• 1 Een Lid kan erkennen dat in een bepaald land genoten onderwijs, opgedane ervaring, vervulde voorwaarden of afgegeven vergunningen of certificaten geheel of gedeeltelijk voldoen aan door hem gehanteerde normen of criteria voor het verlenen van goedkeuring of voor het afgeven van vergunningen of certificaten aan dienstverleners, met inachtneming van het bepaalde in lid 3. Deze erkenning, die via harmonisatie of op andere wijze kan geschieden, kan op een overeenkomst of regeling met het betrokken land worden gebaseerd of autonoom worden verleend.

• 2 Een Lid dat partij bij een bestaande of toekomstige overeenkomst of regeling van de in lid 1 bedoelde soort is, biedt andere geïnteresseerde Leden passende mogelijkheden met hem over toetreding tot die overeenkomst of regeling of over vergelijkbare overeenkomsten of regelingen te onderhandelen. Indien een Lid autonoom tot erkenning overgaat, geeft het elk ander Lid voldoende gelegenheid aan te tonen dat op het grondgebied van dat andere Lid genoten onderwijs, opgedane ervaring, verkregen vergunningen of certificaten dan wel vervulde voorwaarden erkend zouden moeten worden.

• 3 Een Lid gaat niet tot erkenning over op een wijze die een middel tot discriminatie tussen landen zou zijn bij de toepassing van zijn normen of criteria voor het verlenen van goedkeuring, of het afgeven van vergunningen of certificaten aan dienstverleners, dan wel een verkapte beperking van de handel.

• 4 Ieder Lid:

  • a. deelt de Raad voor de Handel in Diensten binnen 12 maanden na de datum waarop de WTO-Overeenkomst voor hem van kracht is geworden zijn bestaande erkenningsmaatregelen mede en geeft daarbij aan of die maatregelen op overeenkomsten of regelingen van de in lid 1 bedoelde soort gebaseerd zijn;

  • b. deelt de Raad voor de Handel in Diensten zo vroeg mogelijk vóór de opening van onderhandelingen over een overeenkomst of regeling van de in lid 1 bedoelde soort mede dat onderhandelingen zullen aanvangen, zodat elk ander Lid voldoende gelegenheid heeft om van zijn interesse aan de deelname aan de onderhandelingen blijk te geven voordat deze een essentiële fase ingaan;

  • c. deelt de Raad voor de Handel in Diensten terstond mede wanneer het nieuwe erkenningsmaatregelen aanneemt of bestaande aanmerkelijk wijzigt en geeft daarbij aan of de maatregelen op een overeenkomst of regeling van de in lid 1 bedoelde soort zijn gebaseerd.

• 5 Telkens wanneer dit gepast is, dient erkenning op grond van multilateraal overeengekomen criteria te geschieden. In daartoe geëigende gevallen werken de Leden met de bevoegde overheidsinstanties en niet-gouvernementele organisaties samen bij de opstelling en goedkeuring van gemeenschappelijke internationale normen en criteria voor erkenning en van gemeenschappelijke internationale normen voor de uitoefening van activiteiten en beroepen in verband met de dienstverlening.

Artikel VIII. Monopolies en exclusieve dienstverleners

• 1 Ieder Lid ziet erop toe dat een dienstverlener met een monopolie op zijn grondgebied, bij de verlening van een dienst op de markt waarop hij een monopolie heeft, niet handelt op een wijze die strijdig is met de verplichtingen van dat Lid ingevolge artikel II en zijn specifieke verbintenissen.

• 2 Indien een dienstverlener met een monopolie van een Lid, direct of via een gelieerd bedrijf, concurreert voor de verlening van een dienst die niet onder zijn monopolierechten valt en waarvoor dat Lid specifieke verbintenissen is aangegaan, ziet dat Lid erop toe dat die dienstverlener geen misbruik van zijn monopoliepositie maakt om op zijn grondgebied in strijd met deze verbintenissen te handelen.

• 3 Op verzoek van een Lid dat redenen heeft om aan te nemen dat een dienstverlener met een monopolie van een ander Lid in strijd met lid 1 of lid 2 handelt, kan de Raad voor de Handel in Diensten het Lid dat deze dienstverlener heeft opgericht, in stand houdt of vergunning verleent, vragen specifieke inlichtingen over de desbetreffende transacties te verstrekken.

• 4 Indien een Lid na de datum van inwerkingtreding van de WTO-Overeenkomst monopolierechten tot verlening van een onder zijn specifieke verbintenissen vallende dienst toekent, meldt dat Lid dit ten laatste drie maanden voor de voorgenomen datum van effectieve verlening van de monopolierechten bij de Raad voor de Handel in Diensten aan en zijn de bepalingen van artikel XXI, leden 2, 3 en 4, van toepassing.

• 5 Dit artikel is tevens van toepassing op exclusieve dienstverleners indien een Lid, formeel of feitelijk, a. een klein aantal dienstverleners opricht of daaraan vergunning verleent, en b. de mededinging tussen hen op zijn grondgebied aanmerkelijk verhindert.

Artikel IX. Handelspraktijken

• 1 De Leden erkennen dat bepaalde handelspraktijken van dienstverleners, andere dan die welke in artikel VIII zijn bedoeld, de mededinging en daarmee de handel in diensten kunnen beperken.

• 2 Ieder Lid treedt op verzoek van een ander Lid in overleg met het oog op uitbanning van de in lid 1 genoemde praktijken. Het aangezochte Lid behandelt dit verzoek diepgaand en met welwillendheid en werkt mee door middel van de verstrekking van algemeen beschikbare, niet-vertrouwelijke informatie die voor het betrokken geval van belang is. Het aangezochte Lid verstrekt tevens andere beschikbare informatie aan het verzoekende Lid, onder voorbehoud van zijn nationale recht en het sluiten van een bevredigende overeenkomst betreffende de eerbiediging van de vertrouwelijke aard van deze informatie door het verzoekende Lid.

Artikel X. Urgentie-vrijwaringsmaatregelen

• 1 Er worden multilaterale onderhandelingen gevoerd over urgentie-vrijwaringsmaatregelen die van het beginsel van non-discriminatie uitgaan. De resultaten van die onderhandelingen worden uiterlijk drie jaar na de datum van inwerkingtreding van de WTO-Overeenkomst van kracht.

• 2 In de periode die voorafgaat aan het van kracht worden van de resultaten van de in lid 1 genoemde onderhandelingen kan ieder Lid, in afwijking van artikel XXI, lid 1, de Raad voor de Handel in Diensten in kennis stellen van zijn voornemen een specifieke verbintenis een jaar na de inwerkingtreding te wijzigen of in te trekken, voor zover het Lid de Raad redenen kan opgeven voor het feit dat met de wijziging of intrekking niet tot het verstrijken van de in artikel XXI, lid 1, vermelde termijn van drie jaar kan worden gewacht.

• 3 Lid 2 vervalt drie jaar na de datum van inwerkingtreding van de WTO-Overeenkomst.

Artikel XI. Betalingen en overmakingen

• 1 Een Lid past geen beperkingen toe op internationale overmakingen en betalingen voor lopende transacties die verband houden met zijn specifieke verbintenissen, behoudens in de in artikel XII genoemde omstandigheden.

• 2 Geen enkele bepaling in deze 0vereenkomst doet afbreuk aan de rechten en plichten van de leden van het Internationale Monetaire Fonds die uit de artikelen van de Overeenkomst van dit Fonds voortvloeien, met inbegrip van wisselkoersmaatregelen overeenkomstig de artikelen van Overeenkomst, voor zover een Lid geen beperkingen instelt op kapitaaltransacties op een wijze die in strijd is met zijn specifieke verbintenissen betreffende die transacties, behalve bij toepassing van artikel XII of op verzoek van het Fonds.

Artikel XII. Beperkingen ter bescherming van de betalingsbalans

• 1 In geval van ernstige problemen of dreigende ernstige problemen op het gebied van de betalingsbalans en de buitenlandse financiële positie, mag een Lid beperkingen op de handel in diensten waarvoor het specifieke verplichtingen is aangegaan instellen of in stand houden, waaronder beperkingen op betalingen of overmakingen voor transacties die met die verbintenissen verband houden. Erkend wordt dat een bijzondere druk op de betalingsbalans van een Lid dat met economische ontwikkeling of economische omschakeling bezig is het instellen van beperkingen noodzakelijk kan maken om dit Lid, onder andere, in staat te stellen, voldoende financiële reserves aan te houden om het programma voor economische ontwikkeling of economische omschakeling te kunnen uitvoeren.

• 2 De in lid 1 bedoelde beperkingen:

  • a. mogen niet discrimineren tussen de Leden;

  • b. zijn in overeenstemming met de artikelen van de Overeenkomst van het Internationale Monetaire Fonds;

  • c. brengen geen onnodig nadeel toe aan de commerciële, economische en financiële belangen van de andere Leden;

  • d. gaan niet verder dan gezien de in lid 1 beschreven omstandigheden noodzakelijk is;

  • e. zijn tijdelijk en worden geleidelijk opgeheven naarmate de in lid 1 omschreven situatie verbetert.

• 3 Bij de vaststelling van de beperkingen mogen de Leden voorrang geven aan de verlening van diensten die van groter belang zijn voor hun economische programma's of ontwikkelingsprogramma's. Deze beperkingen mogen evenwel niet worden vastgesteld of gehandhaafd ten behoeve van de bescherming van een bepaalde dienstensector.

• 4 Elke ingevolge lid 1 vastgestelde, gehandhaafde of gewijzigde beperking wordt terstond bij de Algemene Raad aangemeld.

• 5

  • a. Leden die de bepalingen van dit artikel toepassen plegen terstond overleg met de Commissie Betalingsbalansbeperkingen over de krachtens dit artikel aangenomen beperkingen.

  • b. De Ministeriële Conferentie stelt procedures354 vast voor periodiek overleg ten einde het betrokken Lid alle nuttig geachte aanbevelingen te kunnen doen.

  • c. Bij dit overleg worden de betalingsbalanspositie van het betrokken Lid en de krachtens dit artikel vastgestelde of gehandhaafde beperkingen onderzocht, waarbij onder meer de volgende factoren in aanmerking worden genomen:

    • i. de aard en omvang van de problemen op het gebied van de betalingsbalans en de buitenlandse financiële positie;

    • ii. het buitenlandse economische milieu en het handelsmilieu van het Lid dat overleg pleegt;

    • iii. andere corrigerende maatregelen die eventueel genomen kunnen worden.

  • d. Het overleg heeft betrekking op de verenigbaarheid van een beperking met lid 2, met name met de geleidelijke opheffing van beperkingen in overeenstemming met lid 2, onder e..

  • e. Bij dit overleg worden alle bevindingen van statistische en andere gegevens die van het Internationale Monetaire Fonds afkomstig zijn met betrekking tot deviezen, monetaire reserves en betalingsbalansen aanvaard en de conclusies worden gebaseerd op het oordeel van het Fonds over de betalingsbalans en de externe financiële positie van het Lid dat overleg pleegt.

• 6 Wanneer een Lid dat niet bij het Internationale Monetaire Fonds is aangesloten de bepalingen van dit artikel wil toepassen, stelt de Ministeriële Conferentie een onderzoekprocedure en elke andere noodzakelijke procedure in.

Artikel XIII. Overheidsopdrachten

• 1 De artikelen II, XVI en XVII zijn niet van toepassing op wetten, voorschriften of eisen voor de verwerving door overheidsinstanties van diensten aangekocht voor overheidsdoeleinden en niet met het oog op commerciële wederverkoop of het gebruik bij dienstverlening voor commerciële verkoop.

• 2 Binnen twee jaar na de datum van inwerkingtreding van de WTO-Overeenkomst vinden multilaterale onderhandelingen plaats over overheidsopdrachten voor diensten die onder deze Overeenkomst vallen.

Artikel XIV. Algemene uitzonderingen

Onder voorbehoud dat de hieronder bedoelde maatregelen niet zodanig worden toegepast dat zij een middel vormen tot willekeurige of ongerechtvaardigde discriminatie tussen landen waar gelijksoortige omstandigheden heersen of tot een verkapte beperking van de handel in diensten, wordt geen bepaling in deze Overeenkomst uitgelegd als een beletsel voor het vaststellen of toepassen door een Lid van maatregelen:

• a. die noodzakelijk zijn voor de bescherming van de openbare zeden of de handhaving van de openbare orde355;

• b. die noodzakelijk zijn voor de bescherming van het leven of de gezondheid van mens, dier of plant;

• c. die noodzakelijk zijn voor de handhaving van wetten of voorschriften die niet strijdig zijn met de bepalingen van deze Overeenkomst, met inbegrip van die welke betrekking hebben op:

  • i. het voorkomen van misleidende of frauduleuse praktijken of middelen om de gevolgen van de niet-nakoming van dienstenovereenkomsten te compenseren;

  • ii. de bescherming van de persoonlijke levenssfeer in verband met de verwerking en verspreiding van persoonsgegevens en de bescherming van vertrouwelijke aard van persoonlijke dossiers en rekeningen;

  • iii. veiligheid;

• d. die strijdig zijn met artikel XVII, mits het verschil in behandeling is bedoeld om directe belastingen op billijke of doeltreffende wijze356 te kunnen opleggen of innen ten aanzien van diensten of dienstverleners van andere Leden;

• e. die strijdig zijn met artikel II, mits het verschil in behandeling het gevolg is van een overeenkomst ter vermijding van dubbele belastingheffing of van bepalingen ter vermijding van dubbele belastingheffing in een internationale overeenkomst of regeling waaraan een Lid is gebonden.

Artikel XIVbis. Uitzonderingen met betrekking tot de staatsveiligheid

• 1 Geen enkele bepaling in deze Overeenkomst wordt zodanig uitgelegd dat zij:

  • a. een Lid verplicht gegevens te verstrekken waarvan openbaarmaking naar zijn oordeel tegen zijn wezenlijke veiligheidsbelangen indruist; of

  • b. een Lid belet maatregelen te nemen die het ter bescherming van de wezenlijke veiligheidsbelangen nodig acht en die

    • i. betrekking hebben op de verlening van diensten die direct of indirect de bevoorrading van een militaire inrichting als doel heeft;

    • ii. betrekking hebben op splijt- of fusiestoffen of grondstoffen waaruit deze kunnen worden vervaardigd;

    • iii. in tijden van oorlog of van ernstige internationale spanningen worden genomen, of

  • c. een Lid belet maatregelen te nemen tot handhaving van de internationale vrede en veiligheid ingevolge zijn verplichtingen krachtens het Handvest van de Verenigde Naties.

• 2 De Raad voor de Handel in Diensten wordt zo volledig mogelijk op de hoogte gebracht van de op grond van lid 1, onder b. en c., genomen maatregelen en de beëindiging daarvan.

Artikel XV. Subsidies

• 1 De Leden erkennen dat subsidies, in bepaalde omstandigheden, de handel in diensten kunnen verstoren. De Leden treden met elkaar in onderhandeling ten einde de noodzakelijke multilaterale disciplines te ontwikkelen om deze handelsverstoring te voorkomenIn een toekomstig werkprogrammma zal worden bepaald hoe en binnen welke termijn, over deze multilaterale disciplines zal worden onderhandeld. Bij deze onderhandelingen wordt tevens de gegrondheid van compenserende procedures besproken, waarbij de rol van subsidies in het kader van ontwikkelingsprogramma's van ontwikkelingslanden wordt erkend en met de behoeften van de Leden, met name van de Leden die ontwikkelingsland zijn, aan flexibiliteit op dit gebied rekening wordt gehouden. Met het oog op deze onderhandelingen wisselen de Leden informatie uit over alle subsidies in verband met de handel in diensten die zij hun binnenlandse dienstverleners toekennen357. Bij deze onderhandelingen wordt tevens de gegrondheid van compenserende procedures besproken, waarbij de rol van subsidies in het kader van ontwikkelingsprogramma's van ontwikkelingslanden wordt erkend en met de behoeften van de Leden, met name van de Leden die ontwikkelingsland zijn, aan flexibiliteit op dit gebied rekening wordt gehouden. Met het oog op deze onderhandelingen wisselen de Leden informatie uit over alle subsidies in verband met de handel in diensten die zij hun binnenlandse dienstverleners toekennen.

• 2 Elk Lid dat zich door een subsidie van een ander Lid benadeeld acht, kan om overleg over deze aangelegenheden met dat Lid verzoeken. Een dergelijk verzoek wordt in welwillende overweging genomen.

DEEL III. SPECIFIEKE VERBINTENISSEN

Artikel XVI. Markttoegang

• 1 Wat markttoegang via de in artikel I genoemde vormen van dienstverlening betreft, geeft elk Lid diensten en dienstverleners van een ander Lid geen ongunstiger behandeling dan die waarin is voorzien in de voorwaarden en beperkingen die zijn overeengekomen en in zijn Lijst opgenomen358.

• 2 In sectoren waarvoor verbintenissen betreffende markttoegang worden aangegaan, worden de volgende maatregelen door een Lid niet gehandhaafd noch genomen, noch op basis van een regionale onderverdeling, noch voor zijn gehele grondgebied, tenzij in zijn Lijst anders is bepaald:

  • a. beperkingen van het aantal dienstverleners in de vorm van numerieke quota, monopolies, exclusieve dienstverleners dan wel in de vorm van de eis van een onderzoek naar economische behoeften;

  • b. beperkingen van de totale waarde van transacties of activa in verband met diensten in de vorm van numerieke quota dan wel de eis van een onderzoek naar economische behoeften;

  • c. beperkingen van het totale aantal dienstentransacties of de totale hoeveelheid geleverde diensten, in bepaalde numerieke eenheden uitgedrukt in de vorm van quota of de eis van een onderzoek naar economische behoeften359;

  • d. beperkingen van het totale aantal natuurlijke personen dat in een bepaalde dienstensector mag werken of dat een dienstverlener in dienst mag hebben en die nodig zijn voor, en zich rechtstreeks bezig houden met, de verlening van een specifieke dienst in de vorm van numerieke quota of de eis van een onderzoek naar economische behoeften;

  • e. maatregelen die het verlenen van diensten tot bepaalde rechtsvormen of joint-ventures beperken;

  • f. beperkingen van de participatie van buitenlands kapitaal in termen van een maximum-percentage voor buitenlands aandeelhouderschap of de totale waarde van individuele of totale buitenlandse investeringen.

Artikel XVII. Nationale behandeling

• 1 Wat de in zijn Lijst opgenomen sectoren aangaat, en onder voorbehoud van de daarin vermelde voorwaarden en kwalificaties, behandelt ieder Lid diensten en dienstverleners van andere Leden niet ongunstiger dan zijn eigen soortgelijke diensten en dienstverleners in verband met alle maatregelen die de dienstverlening raken360.

• 2 Een Lid kan aan de verplichting van lid 1 voldoen door diensten en dienstverleners van de andere Leden hetzij formeel op gelijke wijze als de eigen soortgelijke diensten en dienstverleners te behandelen hetzij deze formeel een verschillende behandeling te geven.

• 3 Een formeel gelijke of een formeel verschillende behandeling wordt als ongunstiger beschouwd indien deze de mededingingsvoorwaarden wijzigt ten gunste van diensten en dienstverleners van het Lid ten opzichte van soortgelijke diensten of dienstverleners van een ander Lid.

Artikel XVIII. Bijkomende verbintenissen

De Leden kunnen over verbintenissen onderhandelen met betrekking tot maatregelen die de handel in diensten raken en op grond van artikel XVI of artikel XVII niet in de Lijsten zijn opgenomen, met inbegrip van maatregelen op het gebied van kwalificaties, normen en vergunningen. Deze verbintenissen worden opgenomen in de Lijst van een Lid.

DEEL IV. GELEIDELIJKE LIBERALISERING

Artikel XIX. Onderhandelingen over specifieke verbintenissen

• 1 Overeenkomstig de doelstellingen van deze Overeenkomst nemen de Leden aan achtereenvolgende onderhandelingsronden deel die uiterlijk vijf jaar na de datum van inwerkingtreding van de WTO-Overeenkomst zullen aanvangen en daarna regelmatig zullen plaatsvinden ten einde de handel in diensten steeds meer te liberaliseren. Deze onderhandelingen zijn gericht op de beperking of afschaffing van maatregelen die van negatieve invloed zijn op de handel in diensten ten einde de markten daadwerkelijk toegankelijk te maken. Hierbij wordt gestreefd naar de bevordering van de belangen van alle deelnemers op basis van wederzijds voordeel en het bereiken van een globaal evenwicht tussen rechten en plichten.

• 2 Bij het liberaliseringsproces wordt rekening gehouden met de nationale beleidsdoelstellingen en het ontwikkelingsniveau van de individuele Leden, zowel globaal als per sector. Voor individuele Leden die ontwikkelingsland zijn wordt in de nodige flexibiliteit voorzien: zij behoeven minder sectoren open te stellen, minder soorten transacties te liberaliseren, zij mogen hun markten geleidelijk openstellen afhankelijk van hun ontwikkelingssituatie en de opening van hun markten voor buitenlandse dienstverleners afhankelijk stellen van voorwaarden die erop gericht zijn de in artikel IV genoemde doeleinden te bereiken.

• 3 Voor iedere ronde worden onderhandelingsrichtsnoeren en procedures vastgesteld. Bij de vaststelling van deze richtsnoeren gaat de Raad voor de Handel in Diensten over tot een evaluatie van de handel in diensten, in globale termen en op sectorale basis, door vergelijking met de doelstellingen van deze Overeenkomst, waaronder die van artikel IV, lid 1. In de onderhandelingsrichtsnoeren wordt bepaald op welke wijze de liberalisering wordt behandeld die Leden sinds de vorige onderhandelingen op autonome wijze hebben ondernomen, alsook, op grond van artikel IV, lid 3, wat de speciale behandeling inhoudt van de Leden die minstontwikkelde landen zijn.

• 4 Het proces van geleidelijke liberalisering wordt tijdens iedere ronde voortgezet door middel van bilaterale, plurilaterale of multilaterale onderhandelingen die gericht zijn op de verhoging van het algemene niveau van de verbintenissen die de Leden ingevolge deze Overeenkomst zijn aangegaan.

Artikel XX. Lijsten van specifieke verbintenissen

• 1 Ieder Lid stelt een lijst op van de specifieke verbintenissen die het op grond van Deel III van deze Overeenkomst aangaat. Met betrekking tot de sectoren waarvoor dergelijke verbintenissen zijn aangegaan, wordt in iedere Lijst het volgende vermeld:

  • a. de voorwaarden voor en de beperkingen op de markttoegang;

  • b. de voorwaarden en kwalificaties voor nationale behandeling;

  • c. de verplichtingen in verband met bijkomende verbintenissen;

  • d. indien van toepassing, het tijdschema voor de uitvoering van deze verbintenissen; en

  • e. de datum van inwerkingtreding van deze verbintenissen.

• 2 Maatregelen die zowel met artikel XVI als artikel XVII strijdig zijn worden ingeschreven in de kolom betreffende artikel XVI. In dat geval wordt de inschrijving tevens als voorwaarde of kwalificatie voor de toepassing van artikel XVII beschouwd.

• 3 De Lijsten van specifieke verbintenissen worden als bijlage bij deze Overeenkomst gevoegd en vormen een onderdeel daarvan.

Artikel XXI. Wijziging van de lijsten

• 1

  • a. Een Lid (in dit artikel „Lid dat een wijziging aanbrengt” genoemd) kan elke verbintenis die in zijn Lijst is opgenomen, na verloop van drie jaar na de datum van inwerkingtreding van die verbintenis, steeds wijzigen of intrekken, in overeenstemming met de bepalingen van dit artikel.

  • b. Een Lid dat een wijziging aanbrengt meldt zijn voornemen een verbintenis krachtens dit artikel te wijzigen of in te trekken uiterlijk drie maanden voor de voorgenomen datum van uitvoering van de wijziging of intrekking bij de Raad voor de Handel in Diensten aan.

• 2

  • a. Loopt een Lid (hierna „getroffen Lid” genoemd) het risico dat de voordelen die hem op grond van deze Overeenkomst toekomen door een overeenkomstig lid 1, onder b. voorgenomen wijziging of intrekking worden aangetast, dan treedt het Lid dat een wijziging aanbrengt op verzoek van het getroffen Lid in onderhandeling om tot een akkoord te komen over een eventueel noodzakelijke compensatie. Bij deze onderhandelingen en in dit akkoord trachten de betrokken Leden een algemeen niveau van wederzijds voordelige verbintenissen te handhaven dat niet ongunstiger voor de handel is dan het niveau waarin de Lijsten van specifieke verbintenissen voorzagen voordat de onderhandelingen werden aangegaan.

  • b. Compensatie is op het meestbegunstigingsprincipe gebaseerd.

• 3

  • a. Indien voor het verstrijken van de voor onderhandelingen bepaalde periode geen akkoord is bereikt tussen het Lid dat een wijziging aanbrengt en het getroffen Lid, kan het getroffen Lid de zaak aan arbitrage onderwerpen. Elk getroffen Lid dat een eventueel recht op compensatie wil uitoefenen, moet aan de arbitrageprocedure deelnemen.

  • b. Wanneer geen enkel getroffen Lid om arbitrage heeft verzocht, is het Lid dat een wijziging aanbrengt vrij de voorgenomen wijziging of intrekking uit te voeren.

• 4

  • a. Het Lid dat een wijziging aanbrengt mag zijn verbintenis niet wijzigen of intrekken tot het overeenkomstig de uitspraak van de arbiter compensatie heeft verleend.

  • b. Wanneer het Lid dat een wijziging aanbrengt de door hem voorgenomen wijziging of intrekking uitvoert en zich niet naar de uitspraak van de arbiter voegt, mag elk getroffen Lid dat bij de arbitrage was betrokken substantieel gelijkwaardige voordelen overeenkomstig die uitspraak wijzigen of intrekken. In afwijking van artikel II mag deze wijziging of intrekking uitsluitend ten aanzien van het Lid dat een wijziging aanbrengt worden toegepast.

• 5 De Raad voor de Handel in Diensten stelt procedures voor correctie of wijziging van de Lijsten vast. Elk Lid dat op grond van dit artikel in zijn Lijst opgenomen verbintenissen heeft gewijzigd of ingetrokken, wijzigt zijn Lijst overeenkomstig deze procedures.

DEEL V. INSTITUTIONELE BEPALINGEN

Artikel XXII. Overleg

• 1 Elk Lid neemt de eventuele opmerkingen van een ander Lid over aangelegenheden in verband met de uitvoering van deze Overeenkomst in welwillende overweging en biedt voldoende gelegenheid voor overleg. Het Memorandum van Overeenstemming inzake de Beslechting van Geschillen (DSU) is op dit overleg van toepassing.

• 2 De Raad voor de Handel in Diensten of het Orgaan voor Geschillenbeslechting (DSB) kan op verzoek van een Lid in overleg treden met een of meer Leden over kwesties waarvoor bij het in lid 1 bedoelde overleg geen bevredigende oplossing kon worden gevonden.

• 3 Een Lid mag op grond van dit artikel of op grond van artikel XXIII geen beroep doen op artikel XVII ten aanzien van een maatregel van een ander Lid die onder het toepassingsgebied van een internationale overeenkomst valt die tussen hen is gesloten betreffende de vermijding van dubbele belastingheffing. In geval van onenigheid tussen Leden over de vraag of een maatregel onder het toepassingsgebied van een dergelijke overeenkomst valt, kan elk van beide Leden deze kwestie voor de Raad voor de Handel in Diensten brengen361, die de kwestie aan arbitrage onderwerpt. De beslissing van de arbiter is definitief en bindend voor de Leden.

Artikel XXIII. Geschillenbeslechting en handhaving van de bepalingen van de Overeenkomst

• 1 Indien een Lid van oordeel is dat een ander Lid zijn verplichtingen of specifieke verbintenissen uit hoofde van deze Overeenkomst niet nakomt, kan het een beroep doen op de DSU om tot een voor beide partijen bevredigende oplossing te komen.

• 2 Het DSB kan een of meer Leden toestemming geven de nakoming van verplichtingen en specifieke verbintenissen jegens een of meer andere Leden overeenkomstig artikel 22 van de DSU op te schorten, indien het van oordeel is dat de omstandigheden ernstig genoeg zijn om een dergelijk handelen te rechtvaardigen.

• 3 Indien een Lid van oordeel is dat een voordeel waarvan het redelijkerwijs kon verwachten dat het hem krachtens een specifieke verbintenis van een ander Lid ingevolge deel III van deze Overeenkomst zou toekomen, wordt uitgehold of te niet gedaan door de toepassing van een maatregel die niet met de bepalingen van deze Overeenkomst in strijd is, kan het een beroep doen op de DSU. Indien het DSB vaststelt dat de maatregel een dergelijk voordeel heeft uitgehold of te niet gedaan, is het getroffen Lid gerechtigd tot een voor beide partijen bevredigende aanpassing op grond van artikel XXI, lid 2, die een wijziging of intrekking van de maatregel kan inhouden. Kan tussen de betrokken Leden geen overeenstemming worden bereikt, dan is artikel 22 van de DSU van toepassing.

Artikel XXIV. De Raad voor de Handel in Diensten

• 1 De Raad voor de Handel in Diensten vervult de taken die hem worden opgedragen ter bevordering van de uitvoering en de doelstellingen van deze Overeenkomst te bevorderen. De Raad kan de suborganen oprichten die hij voor de doeltreffende vervulling van zijn taken nuttig acht.

• 2 Vertegenwoordigers van alle Leden kunnen zitting hebben in de Raad en, tenzij de Raad anders beslist, in de suborganen van de Raad.

• 3 De voorzitter van de Raad wordt door de Leden gekozen.

Artikel XXV. Technische samenwerking

• 1 De in artikel IV, lid 2, bedoelde contactpunten zijn toegankelijk voor dienstverleners van Leden die aan ondersteuning door dergelijke contactpunten behoefte hebben.

• 2 Technische bijstand aan ontwikkelingslanden wordt op multilateraal niveau door het Secretariaat verstrekt. Besluiten over technische bijstand worden door de Raad voor de Handel in Diensten genomen.

Artikel XXVI. Betrekkingen met andere internationale organisaties

De Algemene Raad stelt de nodige regels vast voor overleg en samenwerking met de Verenigde Naties en de gespecialiseerde agentschappen van de Verenigde naties, alsmede andere intergouvernementele organisaties die zich met diensten bezighouden.

DEEL VI. SLOTBEPALINGEN

Artikel XXVII. Weigering toekenning voordelen

Een Lid kan weigeren de voordelen van deze Overeenkomst toe te kennen:

• a. voor de verlening van een dienst, indien het vaststelt dat deze dienst wordt verleend vanaf of op het grondgebied van een niet-Lid dan wel een Lid ten aanzien waarvan hij de WTO-Overeenkomst niet toepast;

• b. voor de verlening van een zeevervoerdienst, wanneer het vaststelt dat de dienst wordt verleend:

  • i. door een vaartuig dat geregistreerd is volgens het recht van een niet-Lid of een Lid ten aanzien waarvan het de WTO-Overeenkomst niet toepast, en

  • ii. door een persoon van een niet-Lid of een Lid ten aanzien waarvan het de WTO-Overeenkomst niet toepast die het vaartuig geheel of gedeeltelijk exploiteert en/of gebruikt;

• c. aan een dienstverlener die een rechtspersoon is, indien het vaststelt dat deze geen dienstverlener van een ander Lid is dan wel dat deze een dienstverlener van een Lid is ten aanzien waarvan het de WTO-Overeenkomst niet toepast.

Artikel XXVIII. Definities

Voor de toepassing van deze Overeenkomst:

• a. betekent „maatregel” elke maatregel van een Lid, in de vorm van een wet, regeling, voorschrift, procedure, besluit, administratieve handeling, dan wel in enigerlei andere vorm;

• b. omvat „verlening van een dienst” de produktie, distributie, marketing, verkoop en levering van een dienst;

• c. omvatten „maatregelen van de Leden die de handel in diensten raken” maatregelen met betrekking tot

  • i. de aankoop, de betaling of het gebruik van een dienst;

  • ii. de met een verlening van een dienst samenhangende toegang tot en het gebruik van diensten waarvan deze Leden eisen dat deze algemeen aan het publiek worden aangeboden;

  • iii. de aanwezigheid, commerciële aanwezigheid daarbij inbegrepen, van personen van een Lid ten behoeve van de verlening van een dienst op het grondgebied van een ander Lid;

• d. betekent „commerciële aanwezigheid” elk soort zakelijke of beroepsmatige vestiging, waaronder die door middel van

  • i. de oprichting, overname of handhaving van een rechtspersoon, of

  • ii. de oprichting of handhaving van een filiaal of vertegenwoordigingskantoor op het grondgebied van een Lid met als doel een dienst te verlenen;

• e. betekent „dienstensector”

  • i. in verband met een specifieke verbintenis, een of meer, dan wel alle, subsectoren van die dienstensector, als in de Lijst van een Lid omschreven;

  • ii. anders, de hele desbetreffende dienstensector, met inbegrip van alle subsectoren;

• f. betekent „dienst van een ander Lid” een dienst die wordt verleend,

  • i. vanaf of op het grondgebied van dat andere Lid, of in geval van zeevervoer, door een vaartuig dat volgens het recht van dat andere Lid is geregistreerd, of door een persoon van dat andere Lid die de dienst door middel van gehele of gedeeltelijke exploitatie en/of gebruik van een schip verleent; of

  • ii. in geval van verlening van een dienst via een commerciële aanwezigheid of de aanwezigheid van natuurlijke personen, door een dienstverlener van dat andere Lid;

• g. betekent „dienstverlener” elke persoon die een dienst verleent362;

• h. betekent „dienstverlener met een monopolie” elke persoon, publiek of privaat, die op de desbetreffende markt op het grondgebied van een Lid door dat Lid formeel of feitelijk als de enige verlener van die dienst is erkend of opgericht;

• i. betekent „consument van een dienst” elke persoon die een dienst ontvangt of gebruikt;

• j. betekent „persoon” een natuurlijke persoon of een rechtspersoon;

• k. betekent „natuurlijke persoon van een ander Lid” een natuurlijke persoon die op het grondgebied van dat andere of enig ander Lid woonachtig is en die naar het recht van dat andere Lid:

  • i. onderdaan van dat andere Lid is; of

  • ii. het recht heeft op het grondgebied van dat andere Lid een vaste woonplaats te hebben, indien dat Lid

    • 1. geen onderdanen heeft; of

    • 2. zijn vaste ingezetenen in belangrijke mate op dezelfde wijze als zijn onderdanen behandelt, met betrekking tot maatregelen die de handel in diensten raken en die bij de aanvaarding van of toetreding tot de WTO-Overeenkomst zijn aangemeld, met dien verstande dat geen Lid verplicht is deze vaste ingezetenen gunstiger te behandelen dan dat andere Lid. De aanmelding omvat de verbintenis dat het Lid voor deze vaste ingezetenen, in overeenstemming met zijn wetten en voorschriften, dezelfde verantwoordelijkheden op zich neemt als het andere Lid ten opzichte van zijn onderdanen heeft;

• l. betekent „rechtspersoon” iedere juridische eenheid, naar toepasselijk recht opgericht of anderszins georganiseerd, met winst- of andere oogmerken, en in eigendom van particulieren dan wel van de overheid, met inbegrip van elke kapitaalvenootschap, trust, personenvennootschap, joint-venture, eenmanszaak of associatie;

• m. betekent „rechtspersoon van een ander Lid” een rechtspersoon die:

  • i. naar het recht van dat andere Lid opgericht of anderszins georganiseerd is, en die zich met belangrijke zakelijke transacties op het grondgebied van dat Lid of van enig ander Lid bezighoudt; of,

  • ii. in geval van dienstverlening door middel van een commerciële aanwezigheid, eigendom is van:

    • 1. natuurlijke personen van dat Lid; of

    • 2. de onder i. omschreven rechtspersonen van dat andere Lid;

    of waarover deze personen zeggenschap hebben;

• n. is een rechtspersoon

  • i. het „eigendom” van personen van een Lid indien meer dan 50% van het aandelenkapitaal in het bezit is van personen van dat Lid die volledig over hun aandeel kunnen beschikken;

  • ii. een persoon waarover personen van een Lid „zeggenschap hebben” wanneer die personen bevoegd zijn een meerderheid van de bestuurders te benoemen of de handelingen van de rechtspersoon anderszins te sturen;

  • iii. „gelieerd” met een andere persoon wanneer de rechtspersoon zeggenschap heeft over die andere persoon of andersom, dan wel dat zij beiden onder zeggenschap staan van dezelfde persoon;

• o. omvatten „directe belastingen” alle belastingen op het totale inkomen, het totale kapitaal, of onderdelen van inkomen of kapitaal, waaronder belastingen op winsten uit overdracht van eigendom, belastingen op onroerend goed, erfenissen en schenkingen, of belastingen op het totale bedrag aan door ondernemingen betaalde lonen of salarissen, alsook belastingen op waardevermeerdering van kapitaal.

Artikel XXIX. Bijlagen

De Bijlagen bij deze Overeenkomst vormen een integrerend deel van deze Overeenkomst.

Bijlage betreffende vrijstellingen van de toepassing van artikel II

Toepassingsgebied

• 1. In deze Bijlage worden de voorwaarden omschreven waaronder een Lid bij de inwerkingtreding van deze Overeenkomst van zijn verplichtingen krachtens artikel II, lid 1, wordt vrijgesteld.

• 2. Elk na de datum van inwerkingtreding van de WTO-Overeenkomst gedaan verzoek om een nieuwe vrijstelling wordt overeenkomstig artikel IX, lid 3, van die Overeenkomst behandeld.

Herziening

• 3. De Raad voor de Handel in Diensten gaat over tot een herziening van alle vrijstellingen die voor een periode van meer dan vijf jaar zijn verleend. De eerste herziening vindt ten laatste vijf jaar na inwerkingtreding van de WTO-Overeenkomst plaats.

• 4. Bij deze herziening,

  • a. onderzoekt de Raad voor de Handel in Diensten of de omstandigheden die tot de vrijstelling aanleiding hebben gegeven, nog bestaan; en

  • b. stelt hij de datum van een eventuele volgende herziening vast.

Beëindiging

• 5. De vrijstelling voor een Lid van zijn verplichtingen op grond van artikel II, lid 1, van de Overeenkomst betreffende een bepaalde maatregel eindigt op de in de vrijstelling bepaalde datum.

• 6. In beginsel duren vrijstellingen niet langer dan tien jaar. Zij worden bij elke latere handelsliberaliseringronde besproken.

• 7. Aan het einde van de vrijstellingsperiode meldt een Lid de Raad voor de Handel in Diensten dat de onverenigbare maatregel in overeenstemming met artikel II, lid 1, is gebracht.

Lijsten van vrijstellingen van de toepassing van artikel II

(De overeengekomen lijsten van vrijstellingen op grond van artikel II, lid 2, worden bij het verdragsexemplaar van de WTO-Overeenkomst gevoegd.)

Bijlage betreffende het verkeer van natuurlijke personen die diensten verlenen die onder het toepassingsgebied van de overeenkomst vallen

• 1. Deze Bijlage is van toepassing op natuurlijke personen die dienstverlener van een Lid zijn, en op natuurlijke personen van een Lid die in dienst zijn bij een dienstverlener van een Lid , ten behoeve van de verlening van een dienst.

• 2. De Overeenkomst is noch van toepassing op maatregelen betreffende natuurlijke personen die toegang zoeken tot de arbeidsmarkt van een Lid, noch op maatregelen aangaande staatsburgerschap, verblijf of werk op permanente basis.

• 3. De Leden kunnen in overeenstemming met Deel III en Deel IV van de Overeenkomst onderhandelen over specifieke verbintenissen betreffende het verkeer van alle categorieën natuurlijke personen die diensten verlenen die onder het toepassingsgebied van de Overeenkomst vallen. Natuurlijke personen die onder een specifieke verbintenis vallen, mogen in overeenstemming met de voorwaarden van die verbintenis diensten verlenen.

• 4. Een Lid wordt door de Overeenkomst niet verhinderd maatregelen toe te passen tot regeling van de binnenkomst of het tijdelijke verblijf van natuurlijke personen op zijn grondgebied, daarbij inbegrepen maatregelen ter bescherming van de integriteit van zijn grenzen, of ter verzekering van het ordelijke verkeer van natuurlijke personen over zijn grenzen, maar deze maatregelen mogen niet zo worden toegepast dat de voordelen die een Lid uit op grond van een specifieke verbintenis toekomen, daardoor worden uitgehold of teniet gedaan363.

Bijlage betreffende luchtvervoerdiensten

• 1. Deze Bijlage is van toepassing op maatregelen die de handel in al dan niet in een lijst opgenomen luchtvervoersdiensten, alsmede bijkomende diensten, raken. Bevestigd wordt dat een specifieke verbintenis of verplichting ingevolge deze Overeenkomst de verplichtingen van een Lid ingevolge bilaterale of multilaterale overeenkomsten die op de datum van inwerkingtreding van de WTO-Overeenkomst van kracht zijn niet beperken of aantasten.

• 2. De Overeenkomst, inclusief de daarbij behorende procedures voor geschillenbeslechting, is niet van toepassing op maatregelen betreffende:

  • a. verkeersrechten, ongeacht de wijze waarop ze zijn toegekend; of

  • b. diensten die rechtstreeks met de uitoefening van verkeersrechten verband houden, met uitzondering van hetgeen in punt 3 van deze Bijlage is bepaald.

• 3. De Overeenkomst is van toepassing op maatregelen betreffende:

  • a. reparatie en onderhoud van vliegtuigen;

  • b. verkoop en marketing van luchtvervoerdiensten;

  • c. diensten in verband met geautomatiseerde boekingssystemen (CRS).

• 4. De procedures voor geschillenbeslechting van de Overeenkomst kunnen uitsluitend worden ingeroepen wanneer de betrokken Leden verplichtingen of specifieke verbintenissen zijn aangegaan en wanneer de mogelijkheden voor geschillenbeslechting op grond van andere bilaterale of multilaterale overeenkomsten zijn uitgeput.

• 5. De Raad voor de handel in diensten evalueert regelmatig, en ten minste iedere vijf jaar, de ontwikkelingen in de luchtvervoersector en de werking van deze Bijlage ten einde de eventuele verdere toepassing van de Overeenkomst op deze sector te overwegen.

• 6. Definities:

  • a. „reparatie en onderhoud van vliegtuigen” betekent alle werkzaamheden aan een uit de dienst genomen vliegtuig of een onderdeel daarvan, met uitzondering van de zogenaamde gronddiensten;

  • b. „verkoop en marketing van luchtvervoersdiensten” betekent de mogelijkheid voor de betrokken luchtvervoersmaatschappij haar vervoersdiensten vrij te verkopen en op de markt te brengen, met inbegrip van alle marketingaspecten als marktonderzoek, reclame en distributie. De tarifering van luchtvervoersdiensten en de daarop van toepassing zijnde voorwaarden vallen niet onder deze activiteiten.

  • c. „Geautomatiseerde boekingssystemen (CRS)” betekent dienstverlening door middel van computersystemen die informatie bevatten over dienstregeling, beschikbaarheid, tarieven en regels daarvoor, met behulp waarvan boekingen kunnen worden gedaan of vervoersbewijzen uitgegeven.

  • d. „Verkeersrechten” betekent het recht tegen vergoeding geregelde of ongeregelde diensten te onderhouden en/of passagiers, vracht en post te vervoeren van, naar, binnen of over het grondgebied van een Lid, met inbegrip van het vliegen op luchthavens, het exploiteren van routes, de te vervoeren soorten vracht, het voorzien in capaciteit, de toe te passen tarieven en de daarvoor geldende voorwaarden, en criteria voor aanwijzing van luchtvaartmaatschappijen, waaronder criteria als aantal, eigendom en zeggenschap.

Bijlage betreffende financiële diensten

1. Toepassingsgebied en definities

• a Deze Bijlage is van toepassing op maatregelen die de verlening van financiële diensten raken. In deze Bijlage betekent verlening van een financiële dienst de verlening van een dienst, zoals gedefinieerd in artikel I, lid 2, van de Overeenkomst.

• b Voor de toepassing van artikel I, lid 3, onder b. van de Overeenkomst betekent „een in de uitoefening van overheidsgezag verleende dienst” het volgende:

  • i. activiteiten van een centrale bank, monetaire autoriteit of een ander openbare instantie ten behoeve van het monetair beleid of het wisselkoersbeleid;

  • ii. activiteiten in het kader van een wettelijk systeem van sociale zekerheid of algemene ouderdomsvoorziening; en

  • iii. andere door een openbare instantie voor rekening, met garantie of met gebruikmaking van de financiële middelen van de overheid ondernomen activiteiten.

• c Wanneer een Lid toestaat dat een onder b. ii. of b. iii. van dit punt genoemde activiteit door zijn verleners van financiële diensten in concurrentie met een openbare instantie of een verlener van financiële diensten wordt verricht, valt deze activiteit onder „diensten” in de zin van artikel I, lid 3, onder b. van de Overeenkomst.

• d Artikel I, lid 3, onder c., van de Overeenkomst is niet van toepassing op diensten die niet onder deze Bijlage vallen.

2. Binnenlandse regelingen

• a In afwijking van andere bepalingen van de Overeenkomst wordt een Lid niet verhinderd maatregelen van bedrijfseconomisch toezicht te nemen, daarbij inbegrepen maatregelen ter bescherming van investeerders, spaarders, polishouders of personen jegens wie een financiële dienstverlener een fudicaire verplichting heeft, of ter verzekering van de integriteit en stabiliteit van het financiële systeem. Wanneer deze maatregelen niet in overeenstemming met de bepalingen van de Overeenkomst zijn, mogen zij niet worden gebruikt als middel om aan de krachtens de Overeenkomst op een Lid rustende verbintenissen of verplichtingen te ontkomen.

• b Niets in de Overeenkomst mag zodanig worden uitgelegd dat van een Lid bekendmaking kan worden geëist van gegevens over de zaken en rekeningen van individuele klanten of van vertrouwelijke informatie of informatie inzake eigendomsrechten die in het bezit van openbare instanties is.

3. Erkenning

• a Een Lid kan maatregelen van bedrijfseconomisch toezicht van elk ander land erkennen door te bepalen op welke wijze de maatregelen van het Lid betreffende financiële diensten worden toegepast. Deze erkenning, door harmonisatie of op andere wijze, kan op een overeenkomst of regeling met het betrokken land worden gebaseerd of autonoom geschieden.

• b Een Lid, partij bij een onder a. genoemde, toekomstige dan wel bestaande overeenkomst of regeling, verleent andere belangstellende Leden voldoende gelegenheid om over toetreding tot die overeenkomst of regeling te onderhandelen of met hem over daarmee vergelijkbare overeenkomsten of regelingen te onderhandelen in omstandigheden die tot gelijkwaardige resultaten leiden op het gebied van regulering, uitvoering, toezicht en, indien van toepassing, procedures voor de uitwisseling van informatie tussen de partijen bij de overeenkomst of regeling. Wanneer een Lid autonoom tot erkenning overgaat, geeft het elk ander Lid voldoende gelegenheid aan te tonen dat deze omstandigheden bestaan.

• c Artikel VII, lid 4, onder b., is niet van toepassing wanneer een Lid voornemens is maatregelen van bedrijfseconomisch toezicht van een ander land te erkennen.

4. Geschillenbeslechting

Panels voor de beslechting van geschillen over voorzorgskwesties of andere financiële aangelegenheden beschikken over de benodigde deskundigheid betreffende de specifieke financiële dienst die voorwerp van geschil is.

5. Definities

Voor de toepassing van deze Bijlage:

• a. betekent een financiële dienst elke dienst van financiële aard, aangeboden door een financiële dienstverlener van een Lid. Financiële diensten omvatten alle verzekeringen en daarmee verwante diensten, alsmede bancaire en andere financiële diensten (verzekeringen uitgezonderd). Financiële diensten omvatten de volgende activiteiten:

  Verzekeringen en daaraan verwante diensten

  • i. Directe verzekeringen (waaronder medeverzekering)

    • A. levensverzekering

    • B. schadeverzekering;

  • ii. herverzekering en retrocessie;

  • iii. verzekeringsbemiddeling, zoals makelaardij en agentschap;

  • iv. ondersteunende diensten bij verzekeringen, zoals diensten van adviseurs en actuarissen en diensten in verband met risicobeoordeling en de afwikkeling van claims.

  Bancaire en andere financiële diensten (verzekeringen uitgezonderd)

  • v. aanvaarding van deposito's en andere terugbetaalbare fondsen van het publiek;

  • vi. alle soorten leningen, waaronder consumentenkrediet en hypotheken, factoring en financiering van commerciële transacties;

  • vii. financiële leasing;

  • viii. alle diensten in verband met het betalingsverkeer en de overmaking van geld, waaronder credit cards, betaalkaarten, debetkaarten, travellers cheques en bankwissels;

  • ix. garanties en verbintenissen;

  • x. transacties voor eigen rekening of voor rekening van cliënten, op de beurs of op de markt van niet-genoteerde fondsen of anderszins, ten aanzien van:

    • A. geldmarktinstrumenten (met inbegrip van cheques, effecten, depositocertificaten);

    • B. deviezen;

    • C. derivaten, met inbegrip van termijninstrumenten en opties;

    • D. wisselkoers- en rentetariefinstrumenten, waaronder produkten als swaps, forward rate agreements;

    • E. verhandelbare effecten;

    • F. andere verhandelbare instrumenten en financiële activa, edelmetaal inbegrepen;

  • xi. deelneming in uitgiften van alle soorten waardepapieren, daarbij inbegrepen garantieverlening en plaatsing in de hoedanigheid van agent (publiek dan wel particulier) en verlening van diensten betreffende deze uitgiften;

  • xii. financiële bemiddeling;

  • xiii. beheer van activa, zoals het beheer van contanten of portefeuillebeheer, alle vormen van beheer van collectieve investeringen, beheer van pensioenfondsen, diensten aangaande bewaarneming, deposito en fiduciaire diensten;

  • xiv. betalings- en compensatiediensten in verband met financiële activa, daarbij inbegrepen waardepapieren, derivaten en andere verhandelbare instrumenten;

  • xv. verstrekking en doorgifte van financiële informatie en bewerking van financiële gegevens en daarop betrekking hebbende software door verleners van andere financiële diensten;

  • xvi. advies-, bemiddelings- en andere ondersteunende financiële diensten, behorende bij alle onder v. tot en met xv. vermelde activiteiten, daarbij inbegrepen kredietonderzoek en -analyse, onderzoek en advies aangaande investeringen en beleggingen, advies over overnames, bedrijfsreorganisatie en strategie.

• b. betekent verlener van financiële diensten iedere natuurlijke of rechtspersoon van een Lid die financiële diensten wenst te verlenen of verleent, met dien verstande dat de term „verlener van financiële diensten” geen openbare instanties omvat.

• c. „Openbare instantie” betekent:

  • i. een overheid, centrale bank of monetaire autoriteit van een Lid, of een instantie onder bestuur of in eigendom van een Lid, die zich hoofdzakelijk bezighoudt met de uitvoering van overheidstaken of -activiteiten ten behoeve van overheidsdoeleinden, uitgezonderd een instantie die zich hoofdzakelijk bezighoudt met verlening van financiële diensten op commerciële basis; of

  • ii. een particuliere instantie, wanneer deze taken vervult die normalerwijze door een centrale bank of monetaire autoriteit worden vervuld.

Tweede bijlage betreffende financiële diensten

• 1. In afwijking van artikel II van de Overeenkomst en de punten 1 en 2 van de Bijlage betreffende vrijstellingen van de toepassingen van artikel II kan een Lid, gedurende een periode van 60 dagen die vier maanden na de datum van inwerkingtreding van de WTO-Overeenkomst aanvangt, in die Bijlage de maatregelen betreffende financiële diensten opnemen die met artikel II, lid 1, van de Overeenkomst onverenigbaar zijn.

• 2. In afwijking van artikel XXI van de Overeenkomst kan een Lid, gedurende een periode van 60 dagen die vier maanden na de datum van inwerkingtreding van de WTO-Overeenkomst aanvangt, alle in zijn Lijst opgenomen specifieke verbintenissen betreffende financiële diensten of een gedeelte daarvan uitbreiden, wijzigen of intrekken.

• 3. De Raad voor de Handel in Diensten stelt alle procedures vast die voor de toepassing van de punten 1 en 2 nodig zijn.

BIJLAGE IC. Overeenkomst inzake de handelsaspecten van de intellectuele eigendom

De Leden,

Geleid door de wens de verstoring van en belemmeringen voor de internationale handel te verminderen en rekening houdend met de noodzaak een doeltreffende en toereikende bescherming van de intellectuele eigendom te bevorderen en te verzekeren dat maatregelen en procedures om de rechten uit hoofde van de intellectuele eigendom te handhaven niet zelf hinderpalen voor legitiem handelsverkeer worden;

Erkennend dat er derhalve behoefte bestaat aan nieuwe regels en methoden betreffende:

• a. de toepasselijkheid van de grondbeginselen van de GATT-Overeenkomst van 1994 en van de desbetreffende internationale overeenkomsten of verdragen inzake de intellectuele eigendom;

• b. het voorzien in adequate normen en beginselen betreffende het bestaan, de reikwijdte en de gebruikmaking van met de handel verband houdende rechten uit hoofde van de intellectuele eigendom;

• c. het voorzien in doeltreffende en passende middelen om de met de handel verband houdende rechten uit hoofde van de intellectuele eigendom te handhaven, rekening houdend met verschillen in nationale rechtsstelsels;

• d. het voorzien in doeltreffende en snelle procedures om op multilateraal vlak geschillen tussen regeringen te voorkomen en te beslechten; en

• e. overgangsregelingen gericht op een zo volledig mogelijke deelneming in de resultaten van de onderhandelingen;

  Erkennend de noodzaak van een multilateraal kader van beginselen, regels en methoden om de internationale handel in namaakartikelen te bestrijden;

  Erkennend dat de intellectuele eigendom behoort tot de private rechten;

  Erkennend de doelstellingen van het overheidsbeleid, met inbegrip van doelstellingen inzake ontwikkeling en technologie, waarop nationale stelsels voor de bescherming van de intellectuele eigendom zijn gebaseerd;

  Tevens erkennend de bijzondere behoeften van de Leden die minstontwikkeld land zijn ten aanzien van maximale flexibiliteit bij de binnenlandse toepassing van wetten en voorschriften, ten einde hen in staat te stellen een deugdelijke en levensvatbare technologische basis te scheppen;

  Beklemtonend het belang van de vermindering van spanningen door zich in sterkere mate ertoe te verbinden om geschillen inzake met de handel verband houdende kwesties ten aanzien van de intellectuele eigendom via multilaterale procedures te beslechten;

  Geleid door de wens wederzijdse betrekkingen tot stand te brengen tussen de WTO en de Wereldorganisatie voor de Intellectuele Eigendom (WIPO) en andere hiervoor in aanmerking komende internationale organisaties;

  Zijn hierbij het volgende overeengekomen:

DEEL I. ALGEMENE BEPALINGEN EN GRONDBEGINSELEN

Artikel 1. Aard en reikwijdte van verplichtingen

• 1 De Leden geven uitvoering aan de bepalingen van deze Overeenkomst. De Leden kunnen, maar zijn niet verplicht, in hun nationale wetgeving een uitgebreidere bescherming toepassen dan in deze Overeenkomst is vereist, mits deze bescherming niet in strijd is met de bepalingen van deze Overeenkomst. Het staat de Leden vrij de passende methode voor toepassing van de bepalingen van deze Overeenkomst binnen hun eigen rechtsstelsel en -praktijk te bepalen.

• 2 Voor de toepassing van deze Overeenkomst wordt onder „intellectuele eigendom” verstaan alle categorieën intellectuele eigendom die worden genoemd in Deel II, Titels 1 tot en met 7.

• 3 De Leden kennen de in deze Overeenkomst voorziene behandeling toe aan de onderdanen van andere Leden 364 . Met betrekking tot de desbetreffende intellectuele eigendom wordt onder onderdanen van andere Leden verstaan de natuurlijke personen of rechtspersonen die zouden voldoen aan de criteria om in aanmerking te komen voor de bescherming voorzien in het Verdrag van Parijs (1967), de Berner Conventie (1971), het Verdrag van Rome en het Verdrag inzake de intellectuele eigendom met betrekking tot geïntegreerde schakelingen, als alle Leden van de WTO partij bij die verdragen zouden zijn365 . Een Lid dat gebruik maakt van de mogelijkheden bepaald in artikel 5, derde lid, of artikel 6, tweede lid, van het Verdrag van Rome dient een kennisgeving als voorzien in die bepalingen te richten aan de Raad voor de handelsaspecten van de intellectuele eigendom.

Artikel 2. Verdragen inzake de intellectuele eigendom

• 1 Wat betreft de Delen II, III en IV van deze Overeenkomst leven de Leden de artikelen 1 t/m 12 en 19 van het Verdrag van Parijs (1967) na.

• 2 Geen enkele bepaling in de Delen I t/m IV van deze Overeenkomst doet afbreuk aan de bestaande verplichtingen die de Leden jegens elkaar kunnen hebben ingevolge het Verdrag van Parijs, de Berner Conventie, het Verdrag van Rome en het Verdrag inzake de intellectuele eigendom met betrekking tot geïntegreerde schakelingen.

Artikel 3. Nationale behandeling

• 1 Elk Lid kent aan onderdanen van andere Leden een behandeling toe die niet minder gunstig is dan die welke het toekent aan zijn eigen onderdanen met betrekking tot de bescherming 366 van de intellectuele eigendom, onder voorbehoud van de uitzonderingen die reeds bepaald zijn in onderscheidenlijk het Verdrag van Parijs (1967), de Berner Conventie (1971), het Verdrag van Rome en het Verdrag inzake de intellectuele eigendom met betrekking tot geïntegreerde schakelingen. Wat betreft uitvoerende kunstenaars, producenten van fonogrammen en omroeporganisaties geldt deze verplichting slechts met betrekking tot de in deze Overeenkomst bepaalde rechten. Een Lid dat gebruik maakt van de mogelijkheden bepaald in artikel 6 van de Berner Conventie (1971) of artikel 16, eerste lid, letter b, van het Verdrag van Rome dient een kennisgeving als voorzien in die bepalingen te richten aan de Raad voor de handelsaspecten van de intellectuele eigendom.

• 2 Leden kunnen slechts gebruik maken van de ingevolge het eerste lid toegestane uitzonderingen in verband met rechterlijke en administratieve procedures, met inbegrip van de keuze van domicilie of de aanwijzing van een vertegenwoordiger binnen het rechtsgebied van een Lid, wanneer zulke uitzonderingen noodzakelijk zijn om de naleving te verzekeren van wetten en voorschriften die niet strijdig zijn met de bepalingen van deze Overeenkomst en wanneer deze gedragingen niet plaatsvinden op een wijze die een verhulde beperking van het handelsverkeer vormt.

Artikel 4. Meestbegunstiging

Met betrekking tot de bescherming van de intellectuele eigendom wordt elk voordeel, elke gunst, elk voorrecht of elke vrijstelling die c.q. dat een Lid verleent aan de onderdanen van een ander land terstond en onvoorwaardelijk verleend aan de onderdanen van alle andere Leden. Uitgezonderd van deze verplichting zijn door een Lid verleende voordelen, gunsten, voorrechten of vrijstellingen:

• a. die voortvloeien uit internationale overeenkomsten inzake rechtshulp en rechtshandhaving van algemene aard en niet in het bijzonder zijn beperkt tot de bescherming van de intellectuele eigendom;

• b. die zijn verleend overeenkomstig de bepalingen van de Berner Conventie (1971) of het Verdrag van Rome, waarbij wordt toegestaan dat de toegekende behandeling niet wordt bepaald door de nationale behandeling, maar door de in een ander land toegekende behandeling;

• c. met betrekking tot de rechten van uitvoerende kunstenaars, producenten van fonogrammen en omroeporganisaties waarin ingevolge deze Overeenkomst niet is voorzien;

• d. die voortvloeien uit internationale overeenkomsten betreffende de bescherming van de intellectuele eigendom die in werking zijn getreden vóór de inwerkingtreding van de WTO-Overeenkomst, mits deze overeenkomsten ter kennis worden gebracht van de Raad voor de handelsaspecten van de intellectuele eigendom en geen willekeurige of ongerechtvaardigde discriminatie van onderdanen van andere Leden inhouden.

Artikel 5. Multilaterale overeenkomsten inzake de verwerving of instandhouding van bescherming

De verplichtingen ingevolge de artikelen 3 en 4 zijn niet van toepassing op procedures bepaald in multilaterale overeenkomsten gesloten onder auspiciën van de Wereldorganisatie voor de Intellectuele Eigendom betreffende de verwerving of instandhouding van rechten uit hoofde van de intellectuele eigendom.

Artikel 6. Uitputting van rechten

Ten behoeve van de beslechting van geschillen krachtens deze Overeenkomst mag, onverminderd de bepalingen van de artikelen 3 en 4, geen enkele bepaling in deze Overeenkomst worden aangewend om de kwestie van de uitputting van rechten uit hoofde van de intellectuele eigendom te regelen.

Artikel 7. Doelstellingen

De bescherming en handhaving van rechten uit hoofde van de intellectuele eigendom dient bij te dragen aan de bevordering van technologische vernieuwing en aan de overdracht en verspreiding van technologie, tot wederzijds voordeel van producenten en gebruikers van technologische kennis en op een wijze die bevorderlijk is voor het sociaal en economisch welzijn, en aan een evenwicht tussen rechten en verplichtingen.

Artikel 8. Beginselen

• 1 De Leden kunnen, bij het opstellen of wijzigen van hun nationale wet- en regelgeving, de maatregelen aannemen die nodig zijn ter bescherming van de volksgezondheid en de voeding en ter bevordering van het algemeen belang in sectoren die van vitaal belang zijn voor hun sociaal-economische en technologische ontwikkeling, mits zodanige maatregelen in overeenstemming zijn met de bepalingen van deze Overeenkomst.

• 2 Passende maatregelen, mits in overeenstemming met de bepalingen van deze Overeenkomst, kunnen nodig zijn ter voorkoming van misbruik van rechten uit hoofde van de intellectuele eigendom door bezitters van die rechten of van het toevlucht nemen tot gedragingen die de het handelsverkeer op onredelijke wijze beperken of de internationale overdracht van technologie nadelig beïnvloeden.

DEEL II. NORMEN BETREFFENDE HET BESTAAN, DE REIKWIJDTE EN DE GEBRUIKMAKING VAN RECHTEN UIT HOOFDE VAN DE INTELLECTUELE EIGENDOM

TITEL 1. : AUTEURSRECHT EN NABURIGE RECHTEN

Artikel 9. Verhouding tot de Berner Conventie

• 1 De Leden leven de artikelen 1 t/m 21 van en het Aanhangsel bij de Berner Conventie (1971) na. De Leden hebben evenwel geen rechten of verplichtingen krachtens deze Overeenkomst ten aanzien van de rechten verleend krachtens artikel 6bis van die Conventie of van de daaraan ontleende rechten.

• 2 De bescherming van het auteursrecht strekt zich uit tot uitdrukkingsvormen en niet tot denkbeelden, procedures, werkwijzen of mathematische concepten als zodanig.

Artikel 10. Computerprogramma's en verzamelingen van gegevens

• 1 Computerprogramma's, in bron- dan wel doelcode, worden beschermd als letterkundige werken krachtens de Berner Conventie (1971).

• 2 Verzamelingen van gegevens of ander materiaal, in machine-leesbare dan wel in andere vorm, die door de keuze of rangschikking van de stof een schepping van de geest vormen, worden als zodanig beschermd. Deze bescherming, die zich niet uitstrekt tot de gegevens of het materiaal zelf, laat de auteursrechten inherent aan de gegevens of het materiaal zelf onverlet.

Artikel 11. Rechten inzake verhuur

Ten minste wat computerprogramma's en cinematografische werken betreft, verleent een Lid auteurs en hun rechtsopvolgers het recht om de commerciële verhuur aan het publiek van originelen of kopieën van hun onder het auteursrecht vallende werken toe te staan of te verbieden. Een Lid is vrijgesteld van deze verplichting met betrekking tot cinematografische werken, tenzij deze verhuur heeft geleid tot het op grote schaal kopiëren van zulke werken, hetgeen een wezenlijke aantasting vormt van het uitsluitende reproduktierecht dat in dat Lid is verleend aan auteurs en hun rechtsopvolgers. Wat computerprogramma's betreft, geldt deze verplichting niet voor verhuur waarbij het programma zelf niet het eigenlijke voorwerp van de verhuur is.

Artikel 12. Duur der bescherming

Wanneer de duur der bescherming van een werk, niet zijnde een fotografisch werk of een werk van toegepaste kunst, wordt berekend op een andere grondslag dan het leven van een natuurlijke persoon, is deze termijn niet korter dan vijftig jaar na het einde van het kalenderjaar van toegestane publikatie of, bij gebreke van zodanige toegestane publikatie binnen vijftig jaar na de schepping van het werk, vijftig jaar na het einde van het kalenderjaar waarin het werd geschapen.

Artikel 13. Beperkingen en uitzonderingen

De Leden houden beperkingen van of uitzonderingen op uitsluitende rechten beperkt tot bepaalde bijzondere gevallen die niet in strijd zijn met de normale exploitatie van het werk en de legitieme belangen van de bezitter van het recht niet op onredelijke wijze schaden.

Artikel 14. Bescherming van uitvoerende kunstenaars, producenten van fonogrammen (geluidsopnamen) en omroeporganisaties

• 1 Met betrekking tot een vastlegging van hun uitvoering op een fonogram hebben uitvoerende kunstenaars de mogelijkheid de volgende handelingen te beletten, wanneer deze worden verricht zonder hun toestemming: de vastlegging van hun niet vastgelegde uitvoering en de reproduktie van deze vastlegging. Uitvoerende kunstenaars hebben ook de mogelijkheid de volgende handelingen te beletten, wanneer deze worden verricht zonder hun toestemming: de uitzending langs draadloze weg en de overbrenging aan het publiek van de rechtstreekse uitzending van de uitvoering.

• 2 Producenten van fonogrammen genieten het recht de directe of indirecte reproduktie van hun fonogrammen toe te staan of te verbieden.

• 3 Omroeporganisaties hebben het recht de volgende handelingen te verbieden, wanneer deze worden verricht zonder hun toestemming: de vastlegging, de reproduktie van vastleggingen en de heruitzending langs draadloze weg alsmede de overbrenging aan het publiek van televisie-uitzendingen van vastleggingen. Wanneer de Leden zulke rechten niet aan omroeporganisaties verlenen, bieden zij de bezitters van het auteursrecht wat uitzendingen betreft de mogelijkheid de bovengenoemde handelingen te beletten, onverminderd de bepalingen van de Berner Conventie (1971).

• 4 De bepalingen van artikel 11 betreffende computerprogramma's zijn van overeenkomstige toepassing op producenten van fonogrammen en andere bezitters van rechten met betrekking tot fonogrammen zoals bepaald in de nationale wetgeving. Indien een Lid op 15 april 1994 een stelsel kent voor een billijke vergoeding aan bezitters van rechten met betrekking tot de verhuur van fonogrammen, kan het een zodanig stelsel handhaven, mits de commerciële verhuur van fonogrammen geen aanleiding geeft tot wezenlijke aantasting van de uitsluitende rechten van reproduktie van de bezitters van rechten.

• 5 De krachtens deze Overeenkomst voor uitvoerende kunstenaars en producenten van fonogrammen geldende duur der bescherming loopt tot ten minste het einde van een tijdvak van vijftig jaar berekend van het einde van het kalenderjaar waarin de vastlegging werd vervaardigd of de uitvoering plaatsvond. De ingevolge het derde lid toegekende beschermingsduur is ten minste twintig jaar vanaf het einde van het kalenderjaar waarin de uitzending plaatsvond.

• 6 Een Lid kan, met betrekking tot de krachtens het eerste tot en met het derde lid verleende rechten, voorzien in voorwaarden, beperkingen, uitzonderingen en voorbehouden, voor zover toegestaan door het Verdrag van Rome. De bepalingen van artikel 18 van de Berner Conventie (1971) zijn evenwel ook van overeenkomstige toepassing op de rechten van uitvoerende kunstenaars en producenten van fonogrammen met betrekking tot fonogrammen.

TITEL 2. : HANDELSMERKEN

Artikel 15. Voor bescherming in aanmerking komende onderwerpen

• 1 Elk teken, of elke combinatie van tekens, waarmee de waren of diensten van de ene onderneming kunnen worden onderscheiden van die van andere ondernemingen kan een handelsmerk vormen. Deze tekens, met name woorden die persoonsnamen, letters, cijfers, figuratieve elementen en combinaties van kleuren alsmede een combinatie van zodanige tekens omvatten, komen in aanmerking voor inschrijving als handelsmerken. Wanneer de desbetreffende waren of diensten niet kunnen worden onderscheiden met de tekens op zichzelf, kunnen de Leden het in aanmerking komen voor inschrijving afhankelijk stellen van het onderscheidend vermogen op grond van het gebruik. De Leden kunnen als voorwaarde voor inschrijving verlangen dat de tekens met het oog waarneembaar zijn.

• 2 Het eerste lid mag niet zo worden uitgelegd dat daardoor een Lid wordt belet inschrijving van een handelsmerk te weigeren op andere gronden, mits deze niet afwijken van de bepalingen van het Verdrag van Parijs (1967).

• 3 De Leden kunnen het in aanmerking komen voor inschrijving afhankelijk stellen van het gebruik. Het feitelijk gebruik van een handelsmerk is evenwel geen voorwaarde voor het indienen van een aanvraag voor inschrijving. Een aanvraag mag niet worden afgewezen uitsluitend op grond van het feit dat het voorgenomen gebruik niet heeft plaats gevonden voor het verstrijken van een tijdvak van drie jaar vanaf de datum van de aanvraag.

• 4 De aard van de waren of diensten waarop een handelsmerk zal worden toegepast, vormt in geen geval een belemmering voor de inschrijving van het handelsmerk.

• 5 De Leden publiceren elk handelsmerk voordat het wordt ingeschreven dan wel onmiddellijk nadat het is ingeschreven en bieden een redelijke mogelijkheid voor verzoeken om doorhaling van de inschrijving. Daarnaast kunnen de Leden gelegenheid bieden voor verzet tegen de inschrijving van een handelsmerk.

Artikel 16. Verleende rechten

• 1 De houder van een ingeschreven handelsmerk heeft het uitsluitend recht alle derden die niet zijn toestemming daartoe hebben, te beletten om in het handelsverkeer identieke of soortgelijke tekens te gebruiken voor waren of diensten die identiek zijn met of soortgelijk zijn aan die waarvoor het handelsmerk is ingeschreven, wanneer dat gebruik vermoedelijk zou leiden tot verwarring. In het geval van het gebruik van een identiek teken voor identieke waren of diensten wordt het vermoeden van verwarring verondersteld. De hierboven beschreven rechten laten bestaande eerdere rechten onverlet en zijn evenmin van invloed op de mogelijkheid waarover de Leden beschikken om rechten te verlenen op grond van het gebruik.

• 2 Artikel 6bis van het Verdrag van Parijs (1967) is van overeenkomstige toepassing op diensten. Bij het vaststellen of een handelsmerk algemeen bekend is, wordt rekening gehouden met de bekendheid van het handelsmerk bij de desbetreffende sector van het publiek, met inbegrip van de in dat Lid verworven bekendheid als gevolg van de reclame voor het handelsmerk.

• 3 Artikel 6bis van het Verdrag van Parijs (1967) is van overeenkomstige toepassing op waren of diensten die niet soortgelijk zijn aan die waarvoor een handelsmerk is ingeschreven, mits dat gebruik van dat handelsmerk met betrekking tot die waren of diensten zou duiden op een verband tussen die waren of diensten en de houder van het ingeschreven handelsmerk en mits de belangen van de houder van het ingeschreven handelsmerk vermoedelijk door dat gebruik worden geschaad.

Artikel 17. Uitzonderingen

De Leden kunnen voorzien in beperkte uitzonderingen op de op een handelsmerk verleende rechten, zoals eerlijk gebruik van beschrijvende termen, mits deze uitzonderingen rekening houden met de legitieme belangen van de houder van het handelsmerk en van derden.

Artikel 18. Duur der bescherming

De eerste inschrijving en elke verlenging van inschrijving van een handelsmerk geldt voor een termijn van ten minste zeven jaar. De inschrijving van een handelsmerk is onbeperkt verlengbaar.

Artikel 19. Vereiste van gebruik

• 1 Indien voor de handhaving van een inschrijving gebruik van een handelsmerk is vereist, mag de inschrijving pas na een ononderbroken tijdvak van niet-gebruik van ten minste drie jaar worden doorgehaald, tenzij de houder van het handelsmerk geldige redenen, gebaseerd op het bestaan van belemmeringen voor dat gebruik, aantoont. Omstandigheden die zich buiten de wil van de houder van het handelsmerk voordoen en die een belemmering vormen voor het gebruik van het handelsmerk, zoals invoerbeperkingen op of andere overheidsmaatregelen voor door het handelsmerk beschermde waren of diensten, worden als geldige redenen voor niet-gebruik erkend.

• 2 Gebruik van een handelsmerk door een andere persoon, wanneer dit is onderworpen aan het toezicht van de houder, wordt voor de handhaving van de inschrijving erkend als gebruik van het handelsmerk.

Artikel 20. Overige vereisten

Het gebruik van een handelsmerk in het handelsverkeer mag niet op ongerechtvaardigde wijze worden bemoeilijkt door bijzondere vereisten, zoals het gebruik te zamen met een ander handelsmerk, gebruik in een bijzondere vorm of gebruik op een wijze die afbreuk doet aan het vermogen tot het onderscheiden van de waren of diensten van de ene onderneming van die van andere ondernemingen. Dit sluit niet uit een vereiste waarbij wordt voorgeschreven dat het handelsmerk dat de onderneming aanduidt die de waren of diensten voortbrengt, wordt gebruikt te zamen met, maar zonder een verband daarmede te leggen, het handelsmerk dat de specifieke waren of diensten in kwestie van die onderneming onderscheidt.

Artikel 21. Verlening van licenties en overdracht

De Leden kunnen de voorwaarden vaststellen inzake de verlening van licenties en de overdracht van handelsmerken, met dien verstande dat de gedwongen verlening van licenties van handelsmerken niet is toegestaan en dat de houder van een ingeschreven handelsmerk het recht heeft zijn handelsmerk over te dragen met of zonder de overdracht van het bedrijf waaraan het handelsmerk toebehoort.

TITEL 3. : GEOGRAFISCHE AANDUIDINGEN

Artikel 22. Bescherming van geografische aanduidingen

• 1 Voor de toepassing van deze Overeenkomst worden onder geografische aanduidingen verstaan aanduidingen die aangeven dat waren hun oorsprong hebben op het grondgebied van een Lid, of een regio of plaats op dat grondgebied, waarbij een bepaalde kwaliteit, reputatie of ander kenmerk van de waren wezenlijk valt toe te schrijven aan zijn geografische oorsprong.

• 2 Wat geografische aanduidingen betreft, voorzien de Leden in de wettelijke middelen om belanghebbenden in staat te stellen te beletten:

  • a. het gebruik van middelen in de benaming of voorstelling van waren waarmee wordt aangeduid of gesuggereerd dat de waren in kwestie hun oorsprong hebben in een ander geografisch gebied dan de werkelijke plaats van oorsprong op een wijze die het publiek misleidt ten aanzien van de geografische oorsprong van de waren;

  • b. elk gebruik dat een daad van oneerlijke mededinging vormt in de zin van artikel 10bis van het Verdrag van Parijs (1967).

• 3 De inschrijving van een handelsmerk dat een geografische aanduiding bevat, of uit zo'n aanduiding bestaat, voor waren die niet hun oorsprong hebben op het vermelde grondgebied, wordt door een Lid geweigerd of nietig verklaard, hetzij ambtshalve, indien zijn wetgeving zulks toelaat, hetzij op verzoek van een belanghebbende, indien het gebruik van de aanduiding in het handelsmerk voor deze waren in dat Lid zodanig is dat het publiek daardoor wordt misleid ten aanzien van de werkelijke plaats van oorsprong.

• 4 De bepalingen van het eerste, tweede en derde lid zijn van toepassing op een geografische aanduiding die, hoewel letterlijk juist wat betreft het grondgebied, de regio of de plaats waar de goederen hun oorsprong hebben, ten onrechte tegenover het publiek doet voorkomen dat de waren hun oorsprong hebben op een ander grondgebied.

Artikel 23. Extra bescherming voor geografische aanduidingen voor wijnen en spiritualiën

• 1 Elk Lid voorziet in de wettelijke middelen om belanghebbenden in staat te stellen het gebruik te beletten van een geografische aanduiding ter benoeming van wijnen voor wijnen die niet hun oorsprong hebben in de door de geografische aanduiding in kwestie aangeduide plaats, of van een geografische aanduiding ter benoeming van spiritualiën voor spiritualiën die niet hun oorsprong hebben in de door de geografische aanduiding in kwestie aangeduide plaats, zelfs wanneer de werkelijke oorsprong van de waren is vermeld of de geografische aanduiding wordt gebruikt in vertaling of vergezeld gaat van uitdrukkingen zoals „soort”, „type”, „stijl”, „imitatie” en dergelijke.367

• 2 De inschrijving van een handelsmerk voor wijnen die een geografische aanduiding ter benoeming van wijnen bevat, of uit zo'n aanduiding bestaat, dan wel voor spiritualiën dat een geografische aanduiding ter benoeming van spiritualiën bevat, of uit zo'n aanduiding bestaat, wordt geweigerd of nietig verklaard, hetzij ambtshalve, indien de wetgeving van een Lid zulks toelaat, hetzij op verzoek van een belanghebbende, met betrekking tot wijnen of spiritualiën die niet deze oorsprong hebben.

• 3 In het geval van gelijkluidende geografische aanduidingen voor wijnen wordt aan elke aanduiding bescherming verleend, onverminderd artikel 22, vierde lid. Elk Lid stelt de praktische voorwaarden vast waaronder de gelijkluidende aanduidingen in kwestie van elkaar zullen worden onderscheiden, met inachtneming van de noodzaak een billijke behandeling van de betrokken producenten te waarborgen en de consumenten niet te misleiden.

• 4 Ten einde de bescherming van geografische aanduidingen voor wijnen te vergemakkelijken, worden binnen de Raad voor de handelsaspecten van de intellectuele eigendom onderhandelingen aangegaan betreffende de instelling van een multilateraal stelsel van kennisgeving en registratie van geografische aanduidingen voor wijnen die in aanmerking komen voor bescherming in de Leden die deelnemen aan het stelsel.

Artikel 24. Internationale onderhandelingen; uitzonderingen

• 1 De Leden komen overeen onderhandelingen aan te gaan ter uitbreiding van de bescherming van afzonderlijke geografische aanduidingen krachtens artikel 23. De bepalingen van het vierde tot en met het achtste lid hieronder mogen door een Lid niet worden ingeroepen om te weigeren onderhandelingen te voeren of bilaterale of multilaterale overeenkomsten te sluiten. In de context van zulke onderhandelingen dienen de Leden bereid te zijn de voortgezette toepassing van deze bepalingen te overwegen op afzonderlijke geografische aanduidingen waarvan het gebruik het onderwerp van deze onderhandelingen vormde.

• 2 De Raad voor de handelsaspecten van de intellectuele eigendom toetst de toepassing van de bepalingen van deze Titel; de eerste toetsing vindt plaats binnen twee jaar na de inwerkingtreding van de WTO-Overeenkomst. Aangelegenheden die van invloed zijn op het nakomen van de verplichtingen krachtens deze bepalingen, kunnen onder de aandacht van de Raad worden gebracht; op verzoek van een Lid pleegt de Raad overleg met een Lid of Leden betreffende een aangelegenheid waarvoor geen bevredigende oplossing kon worden gevonden door middel van bilateraal of plurilateraal overleg tussen de betrokken Leden. De Raad neemt de overeengekomen stappen ter vergemakkelijking van de werking en bevordering van de doelstellingen van deze Titel.

• 3 Bij de toepassing van deze Titel vermindert een Lid niet de bescherming van geografische aanduidingen die in dat Lid bestond onmiddellijk vóór de inwerkingtreding van de WTO-Overeenkomst.

• 4 Geen enkele bepaling in deze Titel verlangt van een Lid dat dit het voortgezette en soortgelijke gebruik belet van een bepaalde geografische aanduiding van een ander Lid ter benoeming van wijnen of spiritualiën in verband met waren of diensten door één van zijn onderdanen of ingezetenen die deze geografische aanduiding voortdurend heeft gebruikt voor dezelfde of aanverwante waren of diensten op het grondgebied van dat Lid hetzij a. gedurende ten minste tien jaar vóór 15 april 1994, hetzij b. te goeder trouw vóór die datum.

• 5 Wanneer een handelsmerk te goeder trouw is aangevraagd of ingeschreven, of wanneer rechten op een handelsmerk door gebruik te goeder trouw zijn verworven:

  • a. vóór de datum van toepassing van deze bepalingen in dat Lid zoals omschreven in Deel VI; of

  • b. voordat de geografische aanduiding wordt beschermd in haar land van oorsprong; mogen maatregelen aangenomen ter toepassing van deze Titel geen afbreuk doen aan de ontvankelijkheid of geldigheid van de inschrijving van een handelsmerk, of aan het recht een handelsmerk te gebruiken, op grond van het feit dat dit handelsmerk identiek is met of soortgelijk is aan een geografische aanduiding.

• 6 Geen enkele bepaling in deze Titel verlangt van een Lid dat dit de bepalingen hiervan toepast met betrekking tot een geografische aanduiding van een ander Lid voor waren of diensten waarvan de desbetreffende aanduiding identiek is met de in de omgangstaal gebruikelijke term als soortnaam voor deze waren of diensten op het grondgebied van dat Lid. Geen enkele bepaling van deze Titel verlangt van een Lid dat dit de bepalingen hiervan toepast met betrekking tot een geografische aanduiding van een ander Lid voor voortbrengselen van de wijnstok waarvan de desbetreffende aanduiding identiek is met de gangbare naam van een druivesoort die op het grondgebied van dat Lid voorkomt op de datum van inwerkingtreding van de WTO-Overeenkomst.

• 7 Een Lid kan bepalen dat een krachtens deze Titel gedaan verzoek in verband met het gebruik of de inschrijving van een handelsmerk moet worden ingediend binnen vijf jaar nadat het strijdige gebruik van de beschermde aanduiding in dat Lid algemeen bekend is geworden of na de datum van inschrijving van het handelsmerk in dat Lid, mits het handelsmerk op die datum is gepubliceerd, indien deze datum eerder valt dan de datum waarop het strijdige gebruik algemeen bekend werd in dat Lid, mits de geografische aanduiding niet te kwader trouw wordt gebruikt of ingeschreven.

• 8 De bepalingen van deze Titel doen op generlei wijze afbreuk aan het recht van een persoon om in het handelsverkeer zijn naam of de naam van zijn voorganger in zaken te gebruiken, behalve wanneer deze naam op zodanige wijze wordt gebruikt dat het publiek daardoor wordt misleid.

• 9 Krachtens deze Overeenkomst bestaat er geen verplichting tot bescherming van geografische aanduidingen die niet of niet langer zijn beschermd in hun land van oorsprong, of die in dat land in onbruik zijn geraakt.

TITEL 4. : TEKENINGEN EN MODELLEN VAN NIJVERHEID

Artikel 25. Vereisten voor bescherming

• 1 De Leden voorzien in de bescherming van onafhankelijk vervaardigde tekeningen en modellen van nijverheid die nieuw of oorspronkelijk zijn. De Leden kunnen bepalen dat tekeningen of modellen niet nieuw of oorspronkelijk zijn, indien deze niet aanmerkelijk verschillen van bekende tekeningen en modellen of combinaties van bekende kenmerken van tekeningen en modellen. De Leden kunnen bepalen dat deze bescherming zich niet uitstrekt tot tekeningen en modellen waarvoor hoofdzakelijk technische of functionele eisen bepalend zijn.

• 2 Elk Lid ziet erop toe dat de vereisten voor het verkrijgen van bescherming voor tekeningen en modellen op het gebied van textiel, met name met betrekking tot kosten, onderzoek of openbaarmaking, niet op onredelijke wijze de mogelijkheid om zodanige bescherming te vragen en te verkrijgen belemmeren. Het staat de Leden vrij aan deze verplichting te voldoen door middel van de wetgeving inzake tekeningen en modellen van nijverheid of de wetgeving inzake auteursrechten.

Artikel 26. Bescherming

• 1 De eigenaar van een beschermde tekening of een beschermd model van nijverheid heeft het recht derden die daartoe niet zijn toestemming hebben te beletten artikelen te vervaardigen, verkopen of in te voeren die hetzelfde uiterlijk vertonen of waarin een tekening of model is belichaamd dat een kopie of in feite een kopie is van de beschermde tekening of het beschermde model, wanneer deze handelingen voor handelsdoeleinden worden verricht.

• 2 De Leden kunnen voorzien in beperkte uitzonderingen op de bescherming van tekeningen en modellen van nijverheid, mits deze uitzonderingen niet op onredelijke wijze strijdig zijn met de normale exploitatie van beschermde tekeningen en modellen van nijverheid en niet op onredelijke wijze de legitieme belangen van de eigenaar van de beschermde tekening of het beschermde model schaden, rekening houdend met de legitieme belangen van derden.

• 3 De duur der bescherming beloopt ten minste tien jaar.

TITEL 5. : OCTROOIEN

Artikel 27. Octrooieerbare onderwerpen

• 1 Onverminderd het bepaalde in het tweede en het derde lid, kan octrooi worden verleend voor uitvindingen, produkten dan wel werkwijzen, op alle gebieden van de technologie, mits zij nieuw zijn, op uitvinderswerkzaamheid berusten en industrieel kunnen worden toegepast.368 Onverminderd artikel 65, vierde lid, artikel 70, achtste lid, en het derde lid van dit artikel kan octrooi worden verleend en kunnen octrooirechten worden genoten zonder onderscheid op grond van de plaats van uitvinding, het gebied van de technologie en op grond van het feit dat produkten worden ingevoerd of in eigen land worden vervaardigd.

• 2 De Leden kunnen van octrooieerbaarheid uitsluiten uitvindingen waarvan het beletten van de commerciële toepassing op hun grondgebied noodzakelijk is ter bescherming van de openbare orde of de goede zeden, met inbegrip van de bescherming van het leven of de gezondheid van mensen, dieren of planten of ter vermijding van ernstige schade voor het milieu, mits deze uitsluiting niet slechts plaatsvindt omdat de exploitatie door de nationale wetgeving is verboden.

• 3 De Leden kunnen ook van octrooieerbaarheid uitsluiten:

  • a. diagnostische, therapeutische en chirurgische methoden voor de behandeling van mensen of dieren;

  • b. andere planten en dieren dan micro-organismen en andere werkwijzen van wezenlijk biologische aard voor de voortbrenging van planten of dieren niet zijnde biologische en microbiologische werkwijzen. De Leden voorzien evenwel in de bescherming van plantenrassen door octrooien dan wel door een doeltreffend afzonderlijk stelsel, of een combinatie daarvan. De bepalingen van deze letter worden vier jaar na de inwerkingtreding van de WTO-Overeenkomst opnieuw bezien.

Artikel 28. Verleende rechten

• 1 Een octrooi verleent aan de houder de volgende uitsluitende rechten:

  • a. wanneer het onderwerp van een octrooi een produkt is, derden die daartoe niet zijn toestemming hebben te beletten: dat produkt te vervaardigen, te gebruiken, ten verkoop aan te bieden, te verkopen of voor deze doeleinden in te voeren369;

  • b. wanneer het onderwerp van een octrooi een werkwijze is, derden die daartoe niet zijn toestemming hebben te beletten deze werkwijze te gebruiken en ten minste het rechtstreeks door middel van deze werkwijze verkregen produkt te gebruiken, ten verkoop aan te bieden, te verkopen of voor deze doeleinden in te voeren.

• 2 Houders van octrooien hebben ook het recht het octrooi over te dragen, of te doen overgaan door opvolging, en licentieovereenkomsten te sluiten.

Artikel 29. Aan octrooiaanvragen gestelde voorwaarden

• 1 De Leden vereisen dat een aanvrager van een octrooi de uitvinding openbaar maakt op een wijze die voldoende duidelijk en volledig is om de uitvinding te kunnen toepassen door een ter zake bekwaam persoon en kunnen vereisen dat de aanvrager de beste wijze van toepassing van de uitvinding aangeeft die de uitvinder bekend is op de datum van indiening van de aanvrage of, wanneer een beroep op het recht van voorrang wordt gedaan, op de datum van voorrang van de aanvrage.

• 2 De Leden kunnen van een aanvrager van een octrooi verlangen dat deze informatie verstrekt betreffende zijn overeenkomstige aanvragen en verleningen van octrooi in het buitenland.

Artikel 30. Uitzonderingen op verleende rechten

De Leden kunnen voorzien in beperkte uitzonderingen op de door een octrooi verleende uitsluitende rechten, mits deze uitzonderingen niet op onredelijke wijze strijdig zijn met de normale exploitatie van het octrooi en niet op onredelijke wijze de legitieme belangen van de houder van het octrooi schaden, rekening houdend met de legitieme belangen van derden.

Artikel 31. Ander gebruik zonder toestemming van de houder van het recht

Wanneer de wetgeving van een Lid ander gebruik370 van het onderwerp van een octrooi toestaat zonder toestemming van de houder van het recht, met inbegrip van gebruik door de overheid of door daartoe door de overheid gemachtigde derden, dienen de volgende bepalingen te worden geëerbiedigd:

• a. de toestemming tot dit gebruik wordt van geval tot geval bezien;

• b. dit gebruik mag slechts worden toegestaan indien de voorgestelde gebruiker voorafgaande aan dit gebruik pogingen heeft gedaan om van de houder van het recht toestemming te verkrijgen op redelijke commerciële voorwaarden en deze pogingen niet binnen een redelijke termijn zijn geslaagd. Een Lid kan van deze vereiste ontheffing verlenen in het geval van een nationale noodtoestand of andere omstandigheden van bijzonder dringende aard of in geval van niet-commercieel gebruik door de overheid. In situaties van een nationale noodtoestand of andere omstandigheden van bijzonder dringende aard dient de houder van het recht niettemin zo spoedig als redelijkerwijze mogelijk is daarvan in kennis te worden gesteld. Wanneer, in het geval van niet-commercieel gebruik door de overheid, de overheid of de contractant, zonder een octrooi-onderzoek te verrichten, weet of aantoonbare redenen heeft om te weten dat een geldig octrooi wordt of zal worden gebruikt door of namens de overheid, dient de houder van het recht onverwijld daarvan in kennis te worden gesteld;

• c. de reikwijdte en duur van dit gebruik zijn beperkt tot het doel waarvoor het werd toegestaan en het gebruik is in het geval van halfgeleidertechnologie alleen toegestaan voor niet-commercieel gebruik door de overheid of voor het tegengaan van een gedraging waarvan na een gerechtelijke of administratieve procedure is vastgesteld dat deze concurrentiebeperkend is;

• d. dit gebruik is niet-uitsluitend;

• e. dit gebruik is niet overdraagbaar, behalve te zamen met dat deel van de onderneming of de goodwill die het gebruik geniet;

• f. dit gebruik wordt voornamelijk toegestaan voor de voorziening van de binnenlandse markt van het Lid dat het gebruik toestaat;

• g. toestemming tot dit gebruik kan, met toereikende bescherming van de legitieme belangen van de personen aan wie toestemming is verleend, worden beëindigd indien en wanneer de omstandigheden die tot de toestemming hebben geleid zich niet langer voordoen en zich vermoedelijk niet opnieuw zullen voordoen. De bevoegde autoriteit heeft de bevoegdheid om, op met redenen omkleed verzoek, het voortduren van deze omstandigheden te bezien;

• h. de houder van het recht wordt een, gezien de omstandigheden van het geval, toereikende vergoeding betaald, met inachtneming van de economische waarde van de machtiging;

• i. de rechtsgeldigheid van een beslissing betreffende de toestemming tot dit gebruik is onderworpen aan toetsing door de rechter of andere onafhankelijke toetsing door een afzonderlijk hoger gezag in dat Lid;

• j. een beslissing betreffende de met betrekking tot dit gebruik verstrekte vergoeding is onderworpen aan toetsing door de rechter of andere onafhankelijke toetsing door een afzonderlijk hoger gezag in dat Lid;

• k. de Leden zijn niet verplicht de voorwaarden in de letters b en f toe te passen wanneer dit gebruik is toegestaan om een gedraging tegen te gaan waarvan na een gerechtelijke of administratieve procedure is vastgesteld dat deze concurrerentiebeperkend is. Met de noodzaak om concurrerentiebeperkende gedragingen te corrigeren kan rekening worden gehouden bij de vaststelling van het bedrag van de vergoeding in zulke gevallen. De bevoegde autoriteiten hebben de bevoegdheid de beëindiging van de toestemming te weigeren indien en wanneer de omstandigheden die tot de toestemming hebben geleid zich vermoedelijk weer zullen voordoen;

• l. wanneer tot dit gebruik toestemming is verleend om het gebruik van een octrooi („het tweede octrooi”) mogelijk te maken dat niet kan worden gebruikt zonder inbreuk te maken op een ander octrooi („het eerste octrooi”), zijn de onderstaande bijkomende voorwaarden van toepassing:

  • i. de in het tweede octrooi beschreven uitvinding betreft een belangrijke technische vooruitgang van aanmerkelijke economische betekenis vergeleken met de in het eerste octrooi beschreven uitvinding;

  • ii. de houder van het eerste octrooi is gerechtigd tot wederkerige verlening van een licentie op redelijke voorwaarden om de in het tweede octrooi beschreven uitvinding te gebruiken; en

  • iii. het met betrekking tot het eerste octrooi toegestane gebruik is niet overdraagbaar, behalve te zamen met de overdracht van het tweede octrooi.

Artikel 31bis

• 1 De verplichtingen van een exporterend lid volgens artikel 31, onder f, zijn niet van toepassing met betrekking tot het verlenen door dat lid van een dwanglicentie in de mate die nodig is voor de productie van farmaceutische producten (een farmaceutisch product) en de uitvoer daarvan naar in aanmerking komende importerende leden (een in aanmerking komend importerend lid) overeenkomstig de bepalingen van lid 2 van de bijlage bij deze overeenkomst.

• 2 Indien volgens het stelsel als bedoeld in dit artikel en de bijlage bij deze overeenkomst door een exporterend lid een dwanglicentie wordt verleend, wordt in die lidstaat krachtens artikel 31, onder h, een toereikende vergoeding betaald, rekening houdend met de economische waarde voor het importerende lid van het gebruik dat in het exporterende lid is toegestaan. Indien voor dezelfde producten in het in aanmerking komende importerende lid een dwanglicentie wordt verleend, geldt de verplichting van dat lid uit hoofde van artikel 31, onder h, niet voor die producten waarvoor in het exporterende lid overeenkomstig de eerste zin van dit lid een vergoeding is betaald.

• 3 Met het oog op het gebruik van schaalvoordelen ten einde de koopkracht voor farmaceutische producten te vergroten en de lokale productie ervan te vergemakkelijken: indien een WTO-ontwikkelingsland of minst-ontwikkeld WTO-lid partij is bij een regionale handelsovereenkomst als bedoeld in artikel XXIV van GATT 1994 en het besluit van 28 november 1979 inzake een gedifferentieerde en gunstigere behandeling, wederkerigheid en een grotere deelneming voor de ontwikkelingslanden (L/4903), waarbij ten minste de helft van de bestaande leden bestaat uit landen die op de huidige VN-lijst van minst-ontwikkelde landen staan, is de verplichting voor dat lid uit hoofde van artikel 31, onder f, niet van toepassing, in de mate die noodzakelijk is om een farmaceutisch product dat in die lidstaat onder dwanglicentie is geproduceerd of geïmporteerd te kunnen exporteren naar de markten van andere WTO-ontwikkelingslanden of minst-ontwikkelde WTO-leden die partij zijn bij de regionale handelsovereenkomst en met hetzelfde volksgezondheidsprobleem worden geconfronteerd. Hierbij wordt het territoriale karakter van de betrokken octrooirechten niet aangetast.

• 4 De leden wraken de maatregelen die conform de bepalingen van dit artikel en de bijlage bij deze overeenkomst krachtens artikel XXIII, 1b en 1c, van GATT 1994 zijn genomen, niet.

• 5 Dit artikel en de bijlage bij deze overeenkomst laten onverlet de rechten, verplichtingen en flexibiliteiten alsook de interpretatie daarvan, die de leden krachtens de bepalingen van deze overeenkomst hebben, met uitzondering van de punten f en h van artikel 31, met inbegrip van de opnieuw door de verklaring inzake de TRIPS-overeenkomst en de volksgezondheid (WT/MIN(01)/DEC/2) bevestigde rechten, verplichtingen en flexibiliteiten. Zij laten eveneens onverlet de mate waarin onder dwanglicentie geproduceerde farmaceutische producten volgens de bepalingen van artikel 31, onder f, kunnen worden geëxporteerd.

Artikel 32. Intrekking/Vervallenverklaring

Voor beslissingen tot intrekking of vervallenverklaring van een octrooi dient een mogelijkheid voor toetsing door de rechter te bestaan.

Artikel 33. Duur der bescherming

De duur der bescherming eindigt niet voor het verstrijken van een tijdvak van twintig jaar te rekenen van de datum van indiening.371

Artikel 34. Octrooien voor werkwijzen: Bewijslast

• 1 Ten behoeve van een civiele procedure met betrekking tot de inbreuk op de rechten van de houder bedoeld in artikel 28, eerste lid, letter b, hebben de rechterlijke autoriteiten, indien het onderwerp van een octrooi een werkwijze voor de verkrijging van een produkt is, de bevoegdheid de verweerder te gelasten aan te tonen dat de werkwijze om een identiek produkt te verkrijgen, verschilt van de geoctrooieerde werkwijze. De Leden dienen derhalve in ten minste één van de onderstaande omstandigheden te bepalen dat een identiek produkt, wanneer het is verkregen zonder de toestemming van de houder van het octrooi, bij gebreke van bewijs van het tegendeel, wordt geacht te zijn verkregen door middel van de geoctrooieerde werkwijze:

  • a. indien het door middel van de geoctrooieerde werkwijze verkregen produkt nieuw is;

  • b. indien het in hoge mate waarschijnlijk is dat het identieke produkt werd verkregen door middel van de werkwijze en de houder van het octrooi niet in staat is geweest door redelijke inspanningen de feitelijk gebruikte werkwijze vast te stellen.

• 2 Het staat een Lid vrij te bepalen dat de in het eerste lid genoemde bewijslast alleen op de vermeende inbreukmaker rust indien is voldaan aan de in letter a bedoelde voorwaarde of alleen indien is voldaan aan de in letter b bedoelde voorwaarde.

• 3 Bij het aanvoeren van bewijs van het tegendeel dient rekening te worden gehouden met de legitieme belangen van de verweerder bij de bescherming van zijn fabrieks- en handelsgeheimen.

TITEL 6. : ONTWERPEN VOOR SCHAKELPATRONEN (TOPOGRAFIEËN) VAN GEÏNTEGREERDE SCHAKELINGEN

Artikel 35. Verhouding tot het IPIC-Verdrag

De Leden komen overeen bescherming te bieden aan de ontwerpen voor schakelpatronen (topografieën) van geïntegreerde schakelingen (hierna te noemen „schakelpatroonontwerpen”) in overeenstemming met de artikelen 2 tot en met 7 (met uitzondering van artikel 6, derde lid), artikel 12 en artikel 16, derde lid, van het Verdrag inzake de intellectuele eigendom met betrekking tot geïntegreerde schakelingen en daarnaast zich te houden aan de onderstaande bepalingen.

Artikel 36. Reikwijdte van de bescherming

Behoudens het bepaalde in artikel 37, eerste lid, beschouwen de Leden de volgende handelingen als onrechtmatig indien deze worden verricht zonder toestemming van de houder van het recht:372 het invoeren, verkopen of anderszins distribueren voor handelsdoeleinden van een beschermd schakelpatroonontwerp, een geïntegreerde schakeling die een beschermd schakelpatroonontwerp omvat, of van een artikel dat zulk een geïntegreerde schakeling omvat, slechts voor zover dit een onrechtmatig gereproduceerd schakelpatroonontwerp blijft bevatten.

Artikel 37. Handelingen waarvoor de toestemming van de houder van het recht niet is vereist

• 1 Niettegenstaande artikel 36 beschouwt een Lid niet als onrechtmatig het verrichten van een van de in dat artikel bedoelde handelingen met betrekking tot een geïntegreerde schakeling die een onrechtmatig gereproduceerd schakelpatroonontwerp omvat of een artikel dat zulk een geïntegreerde schakeling omvat, wanneer de persoon die zulke handelingen verricht of daartoe opdracht geeft, niet wist en geen redelijke gronden had om te weten, toen hij de geïntegreerde schakeling of het artikel dat zulk een geïntegreerde schakeling omvat verwierf, dat het een onrechtmatig geproduceerd schakelpatroonontwerp omvatte. De Leden bepalen dat deze persoon, na het tijdstip waarop hij in voldoende mate in kennis is gesteld van het feit dat het schakelpatroonontwerp onrechtmatig was gereproduceerd, alle handelingen met betrekking tot de in voorraad zijnde of vóór dat tijdstip bestelde goederen kan verrichten, doch dat hij de houder van het recht een bedrag moet betalen dat gelijkwaardig is met een redelijke royalty die voor zulk een schakelpatroonontwerp zou moeten worden betaald krachtens een licentie waarover vrijelijk is onderhandeld.

• 2 De voorwaarden in artikel 31, letters a tot en met k, zijn van overeenkomstige toepassing in het geval van een niet-vrijwillige verlening van een licentie voor een schakelpatroonontwerp of van het gebruik daarvan door of namens de overheid zonder de toestemming van de houder van het recht.

Artikel 38. Duur der bescherming

• 1 In Leden die als voorwaarde voor bescherming inschrijving vereisen, eindigt de duur der bescherming voor schakelpatroonontwerpen niet voor het verstrijken van een tijdvak tien jaar gerekend van de datum van indiening van een aanvraag voor inschrijving of van de eerste commerciële exploitatie, waar ook ter wereld.

• 2 In Leden die geen inschrijving vereisen als voorwaarde voor bescherming, zijn schakelpatroonontwerpen beschermd voor een termijn van ten minste tien jaar vanaf de datum van eerste commerciële exploitatie, waar ook ter wereld.

• 3 Niettegenstaande het eerste en het tweede lid kan een Lid bepalen dat de bescherming vervalt vijftien jaar na de schepping van het schakelpatroonontwerp.

TITEL 7. : BESCHERMING VAN NIET OPENBAAR GEMAAKTE INFORMATIE

Artikel 39

• 1 Bij het waarborgen van doeltreffende bescherming tegen oneerlijke concurrentie zoals bepaald in artikel 10bis van het Verdrag van Parijs (1967), beschermen de Leden niet openbaar gemaakte informatie overeenkomstig het tweede lid en aan overheden of overheidsinstanties verstrekte gegevens overeenkomstig het derde lid.

• 2 Natuurlijke personen en rechtspersonen hebben de mogelijkheid te beletten dat informatie waarover zij rechtmatig beschikken zonder hun toestemming wordt openbaar gemaakt aan, verworven door of gebruikt door anderen op een wijze die strijdig is met eerlijke handelsgebruiken373, zolang deze informatie:

  • a. geheim is in de zin dat zij, globaal dan wel in de juiste samenstelling en ordening van de bestanddelen, niet algemeen bekend is bij of gemakkelijk toegankelijk voor personen binnen de kringen die zich gewoonlijk bezighouden met de desbetreffende soort informatie;

  • b. handelswaarde bezit omdat zij geheim is; en

  • c. is onderworpen aan, gezien de omstandigheden, redelijke maatregelen door de persoon die rechtmatig over de informatie beschikt, om deze geheim te houden.

• 3 De Leden die, als voorwaarde voor goedkeuring van het op de markt brengen van farmaceutische produkten of chemische produkten voor de landbouw die nieuwe chemische eenheden bevatten, de overlegging van niet openbaar gemaakte test- of andere gegevens vereisen, waarvan de opstelling een aanmerkelijke inspanning vergt, beschermen deze gegevens tegen oneerlijk commercieel gebruik. Daarnaast beschermen de Leden deze gegevens tegen openbaarmaking, behalve waar dit nodig is ter bescherming van het publiek of tenzij er stappen worden ondernomen om te verzekeren dat de gegevens worden beschermd tegen oneerlijk commercieel gebruik.

TITEL 8. : BESTRIJDING VAN CONCURRENTIEBEPERKENDE GEDRAGINGEN IN CONTRACTUELE LICENTIES

Artikel 40

• 1 De Leden zijn het erover eens dat sommige licentiegebruiken of -voorwaarden betreffende de intellectuele eigendom die de concurrentie beperken, nadelige gevolgen kunnen hebben voor het handelsverkeer en de overdracht en verspreiding van technologie kunnen belemmeren.

• 2 Geen enkele bepaling in deze Overeenkomst belet de Leden om in hun nationale wetgeving licentiegebruiken of -voorwaarden aan te geven die in bepaalde gevallen een misbruik van de intellectuele eigendom kunnen vormen dat een nadelig gevolg heeft voor de concurrentie op de desbetreffende markt. Zoals hierboven bepaald kan een Lid, in overeenstemming met de andere bepalingen van deze Overeenkomst, passende maatregelen nemen om dergelijk misbruik, bijvoorbeeld uitsluitende voorwaarden inzake retrocessie, voorwaarden die aanvechting van de geldigheid beletten en een dwingend stelsel voor gekoppelde licenties kunnen omvatten, te beletten of te bestrijden, in het licht van de desbetreffende wet- en regelgeving van dat Lid.

• 3 Elk Lid treedt op verzoek in overleg met elk ander Lid dat redenen heeft om aan te nemen dat een houder van rechten uit hoofde van de intellectuele eigendom, die onderdaan of ingezetene is van het Lid tot wie het verzoek om overleg is gericht, overgaat tot gedragingen waardoor de wet- en regelgeving van het Lid inzake het onderwerp van deze Titel wordt overtreden, en dat naleving van deze wetgeving wenst te bewerkstelligen, onverminderd een vordering krachtens het recht en ongeacht de volledige vrijheid van een van beide Leden om een definitieve beslissing te nemen. Het aangezochte Lid neemt het verzoek volledig en welwillend in overweging en biedt voldoende gelegenheid voor overleg met het verzoekende Lid en werkt mede door middel van het verstrekken van algemeen beschikbare niet-vertrouwelijke informatie die van belang is voor de desbetreffende aangelegenheid en van andere informatie waarover het Lid beschikt, onverminderd het nationale recht en van het bereiken van wederzijds bevredigende regelingen betreffende de eerbiediging van het vertrouwelijk karakter van deze informatie door het verzoekende Lid.

• 4 Een Lid waarvan de onderdanen of ingezetenen het voorwerp zijn van procedures in een ander Lid betreffende de vermeende overtreding van de wet- en regelgeving van dat andere Lid betreffende het onderwerp van deze Titel wordt, op verzoek, door het andere Lid gelegenheid voor overleg geboden onder dezelfde voorwaarden als voorzien in het derde lid.

DEEL III. HANDHAVING VAN DE RECHTEN UIT HOOFDE VAN DE INTELLECTUELE EIGENDOM

TITEL 1. : ALGEMENE VERPLICHTINGEN

Artikel 41

• 1 De Leden zien erop toe dat in hun nationale wetgeving is voorzien in procedures voor de handhaving, zoals bedoeld in dit Deel, opdat doeltreffend kan worden opgetreden tegen elke inbreuk op onder deze Overeenkomst vallende rechten uit hoofde van de intellectuele eigendom, met inbegrip van snelle middelen om inbreuken te voorkomen en middelen die verdere inbreuken tegengaan. Deze procedures dienen zodanig te worden toegepast dat het scheppen van belemmeringen voor legitiem handelsverkeer wordt vermeden en dat wordt voorzien in waarborgen tegen misbruik van deze procedures.

• 2 Procedures betreffende de handhaving van rechten uit hoofde van de intellectuele eigendom dienen eerlijk en billijk te zijn. Zij mogen niet onnodig ingewikkeld of kostbaar zijn of onredelijke termijnen of nodeloze vertragingen inhouden.

• 3 Beslissingen ten principale dienen bij voorkeur schriftelijk en met redenen omkleed te zijn. Zij dienen ten minste aan de partijen bij de procedure zonder onnodige vertraging ter beschikking te worden gesteld. Beslissingen ten principale dienen slechts te zijn gebaseerd op bewijsmateriaal ten aanzien waarvan de partijen in de gelegenheid werden gesteld om te worden gehoord.

• 4 De partijen bij een procedure dienen de mogelijkheid te hebben tot herziening door een rechterlijke autoriteit van definitieve administratieve beslissingen en, onverminderd de bepalingen inzake rechtsbevoegdheid in de nationale wetgeving betreffende het belang van een zaak, ten minste van de juridische aspecten van rechterlijke beslissingen ten principale in eerste aanleg. Er is evenwel geen verplichting om een mogelijkheid te bieden tot herziening van vrijspraak in strafzaken.

• 5 Er bestaat overeenstemming over het feit dat dit Deel geen verplichting schept om een rechtsstelsel in te voeren voor de handhaving van rechten uit hoofde van de intellectuele eigendom naast dat voor de rechtshandhaving in het algemeen en evenmin van invloed is op de bevoegdheid van Leden tot rechtshandhaving in het algemeen. Geen enkele bepaling in dit Deel schept een verplichting met betrekking tot de verdeling van middelen tussen de handhaving van rechten uit hoofde van de intellectuele eigendom en de rechtshandhaving in het algemeen.

TITEL 2. : CIVIELE EN ADMINISTRATIEVE PROCEDURES EN CORRIGERENDE MAATREGELEN

Artikel 42. Eerlijke en billijke procedures

De Leden bieden houders van rechten374 de mogelijkheid tot het voeren van civiele gerechtelijke procedures betreffende de handhaving van onder deze Overeenkomst vallende rechten uit hoofde van de intellectuele eigendom. Verweerders hebben recht op een tijdige schriftelijke kennisgeving die voldoende gegevens bevat, met inbegrip van de gronden voor de vorderingen. De partijen dient te worden toegestaan zich door onafhankelijke raadslieden te doen vertegenwoordigen en de procedures mogen geen overmatig zware vereisten betreffende verplichte verschijning in persoon opleggen. Alle partijen bij zodanige procedures dienen naar behoren gerechtigd te zijn om hun vorderingen te staven en alle van belang zijnde bewijsmateriaal over te leggen. De procedure dient te voorzien in middelen om vertrouwelijke informatie als zodanig te herkennen en te beschermen, tenzij zulks strijdig zou zijn met bestaande constitutionele vereisten.

Artikel 43. Bewijsmateriaal

• 1 De rechterlijke autoriteiten hebben de bevoegdheid, wanneer een partij redelijkerwijs beschikbaar bewijsmateriaal heeft overgelegd dat voldoende is om haar vorderingen te onderbouwen en voor de staving van haar vorderingen van belang zijnd bewijsmateriaal heeft genoemd dat zich in de macht van de wederpartij bevindt, om te gelasten dat dit bewijsmateriaal door de wederpartij wordt overgelegd, in passende gevallen met inachtneming van voorwaarden die de bescherming van vertrouwelijke informatie verzekeren.

• 2 In gevallen waarin een partij bij een procedure opzettelijk en zonder goede redenen toegang weigert tot noodzakelijke informatie of deze anderszins niet binnen een redelijke termijn verstrekt, dan wel een procedure in verband met een vordering tot handhaving van rechten aanmerkelijk belemmert, kan een Lid de rechterlijke autoriteiten de bevoegdheid verlenen om voorlopige en definitieve beslissingen te geven, bevestigend of afwijzend, op basis van de aan hen voorgelegde informatie, met inbegrip van de klacht of de bewering van de zijde van de door het ontzeggen van toegang tot informatie benadeelde partij, mits de partijen in de gelegenheid worden gesteld om omtrent de beweringen of het bewijsmateriaal te worden gehoord.

Artikel 44. Rechtelijke bevelen

• 1 De rechterlijke autoriteiten hebben de bevoegdheid een partij te gelasten een inbreuk te staken, onder andere om te beletten dat ingevoerde goederen die inbreuk op een recht uit hoofde van de intellectuele eigendom inhouden, onmiddellijk na de inklaring van zodanige goederen door de douane in het verkeer onder hun rechtsmacht worden gebracht. De Leden zijn niet verplicht deze bevoegdheid te verlenen met betrekking tot beschermde onderwerpen, verworven of besteld door een persoon voordat deze wist of redelijke gronden had om te weten dat het handelen in zulke onderwerpen inbreuk op een recht uit hoofde van de intellectuele eigendom met zich zou brengen.

• 2 Niettegenstaande de andere bepalingen van dit Deel en mits de bepalingen van Deel II die specifiek betrekking hebben op het gebruik door overheden, of door daartoe door een overheid gemachtigde derden, zonder toestemming van de houder van het recht, worden nageleefd, kunnen Leden de mogelijke corrigerende maatregelen tegen zodanig gebruik beperken tot betaling van een vergoeding in overeenstemming met artikel 31, letter h. In andere gevallen zijn de corrigerende maatregelen krachtens dit Deel van toepassing of dienen er, wanneer deze corrigerende maatregelen onverenigbaar zijn met het nationale recht, declaratoire vonnissen en toereikende schadevergoeding te kunnen worden verkregen.

Artikel 45. Schadevergoeding

• 1 De rechterlijke autoriteiten hebben de bevoegdheid de inbreukmaker te gelasten aan de houder van het recht een toereikende schadevergoeding te betalen ter compensatie van de schade die de houder van het recht heeft geleden wegens een inbreuk op zijn recht uit hoofde van de intellectuele eigendom door een inbreukmaker die wist of redelijke gronden had om te weten dat hij inbreuk pleegde.

• 2 De rechterlijke autoriteiten hebben ook de bevoegdheid de inbreukmaker te gelasten aan de houder van het recht kosten te betalen, die passende honoraria van een raadsman kunnen omvatten. In passende gevallen kunnen de Leden de rechterlijke autoriteiten de bevoegdheid verlenen om invordering van winsten en/of betaling van vooraf vastgestelde schadevergoeding te gelasten, zelfs wanneer de inbreukmaker niet wist of geen redelijke gronden had om te weten dat hij inbreuk pleegde.

Artikel 46. Overige corrigerende maatregelen

Ten einde inbreuken doeltreffend tegen te gaan, hebben de rechterlijke autoriteiten de bevoegdheid te gelasten dat goederen waarvan zij hebben vastgesteld dat deze inbreuk maken, zonder schadevergoeding van welke aard ook, worden onttrokken aan het verkeer op zodanige wijze dat nadeel voor de houder van het recht wordt vermeden of, tenzij dit in strijd zou zijn met bestaande constitutionele vereisten, deze goederen worden vernietigd. De rechterlijke autoriteiten hebben ook de bevoegdheid te gelasten dat materialen en werktuigen, die voornamelijk zijn gebruikt bij de voortbrenging van de inbreukmakende goederen, zonder schadevergoeding van welke aard ook, worden onttrokken aan het verkeer op zodanige wijze dat het gevaar van verdere inbreuken tot een minimum wordt teruggebracht. Bij het behandelen van zulke verzoeken dient de eis van proportionaliteit tussen de ernst van de inbreuk en de gelaste corrigerende maatregelen alsmede de belangen van derden in aanmerking te worden genomen. Wat betreft nagemaakte merkartikelen, is het eenvoudigweg verwijderen van het onrechtmatig aangebrachte handelsmerk niet voldoende, behalve in uitzonderlijke gevallen, om het in het verkeer brengen van de goederen toe te laten.

Artikel 47. Recht op informatie

De Leden kunnen bepalen dat de rechterlijke autoriteiten de bevoegdheid hebben, tenzij dit niet in verhouding zou staan tot de ernst van de inbreuk, om de inbreukmaker te gelasten de houder van het recht in kennis te stellen van de identiteit van derden die betrokken zijn bij de produktie en distributie van de inbreukmakende goederen of diensten en van hun distributiekanalen.

Artikel 48. Schadeloosstelling van de verweerder

• 1 De rechterlijke autoriteiten hebben de bevoegdheid een partij op wier verzoek maatregelen werden genomen en die de procedures tot handhaving van rechten heeft misbruikt, te gelasten om een partij aan wie ten onrechte een verbod of beperking is opgelegd, een toereikende schadeloosstelling te bieden voor de wegens zodanig misbruik geleden schade. De rechterlijke autoriteiten hebben ook de bevoegdheid de verzoeker te gelasten de kosten van de verweerder te betalen, die passende honoraria van een raadsman kunnen omvatten.

• 2 Wat betreft de toepassing van een wet betreffende de bescherming of handhaving van rechten uit hoofde van de intellectuele eigendom sluiten de Leden overheidsinstanties en -functionarissen slechts van aansprakelijkheid met betrekking tot passende corrigerende maatregelen uit wanneer zij te goeder trouw hebben gehandeld of voornemens waren zulks te doen bij de toepassing van zodanige wetten.

Artikel 49. Administratieve procedures

Voor zover een burgerrechtelijke corrigerende maatregel kan worden gelast als resultaat van administratieve procedures ten principale, dienen zodanige procedures in overeenstemming te zijn met beginselen die in wezen gelijkwaardig zijn aan die welke zijn neergelegd in deze Titel.

TITEL 3. : VOORLOPIGE MAATREGELEN

Artikel 50

• 1 De rechterlijke autoriteiten hebben de bevoegdheid om onmiddellijke en doeltreffende voorlopige maatregelen te gelasten:

  • a. om te beletten dat zich een inbreuk op een recht uit hoofde van de intellectuele eigendom voordoet, en met name om te beletten dat goederen in het verkeer onder hun rechtsmacht worden gebracht, met inbegrip van ingevoerde goederen onmiddellijk na inklaring door de douane;

  • b. om met betrekking tot de vermeende inbreuk van belang zijnd bewijsmateriaal te beschermen.

• 2 De rechterlijke autoriteiten hebben de bevoegdheid, wanneer passend, voorlopige maatregelen te treffen zonder de wederpartij te hebben gehoord, met name wanneer uitstel vermoedelijk onherstelbare schade voor de houder van het recht zal veroorzaken, of wanneer er een aantoonbaar risico is dat bewijsmateriaal zal worden vernietigd.

• 3 De rechterlijke autoriteiten hebben de bevoegdheid om van de verzoeker te verlangen dat deze redelijkerwijze beschikbaar bewijsmateriaal overlegt opdat zij zich er met een voldoende mate van zekerheid van kunnen vergewissen dat de verzoeker de houder van het recht is en dat er inbreuk op zijn recht wordt gemaakt of dreigt te worden gemaakt, en om de verzoeker te gelasten een zekerheid te stellen of soortgelijke waarborg te bieden die voldoende is om de verweerder te beschermen en misbruik te beletten.

• 4 Wanneer er voorlopige maatregelen zijn genomen zonder dat de wederpartij is gehoord, worden de betrokken partijen onverwijld daarvan in kennis gesteld, uiterlijk na uitvoering van de maatregelen. Op verzoek van de verweerder vindt een herziening plaats, met inbegrip van het recht te worden gehoord, ten einde te beslissen, binnen een redelijke termijn na de kennisgeving van de maatregelen, of deze maatregelen dienen te worden gewijzigd, herroepen of bevestigd.

• 5 Van de verzoeker kan worden verlangd, dat hij andere informatie verstrekt die nodig is voor de identificatie van de betrokken goederen door de instantie die de voorlopige maatregelen zal uitvoeren.

• 6 Onverminderd het vierde lid, worden op grond van het eerste en het tweede lid genomen voorlopige maatregelen op verzoek van de verweerder herroepen of houden zij anderszins op gevolg te hebben, indien de procedure die leidt tot een beslissing ten principale niet worden aangevangen binnen een redelijke termijn, te bepalen door de rechterlijke autoriteit die de maatregelen gelast wanneer het nationale recht zulks toestaat of, wanneer geen termijn wordt bepaald, binnen een termijn van ten hoogste twintig werkdagen of eenendertig kalenderdagen, naar gelang van welke van beide termijnen de langste is.

• 7 Wanneer de voorlopige maatregelen worden herroepen of wanneer zij vervallen wegens enig handelen of nalaten van de verzoeker, of wanneer later wordt vastgesteld dat er geen inbreuk of dreiging van inbreuk op een recht uit hoofde van de intellectuele eigendom is, hebben de rechterlijke autoriteiten de bevoegdheid, op verzoek van de verweerder, de verzoeker te gelasten de verweerder passende schadeloosstelling te bieden voor door deze maatregelen toegebrachte schade.

• 8 Voor zover voorlopige maatregelen kunnen worden gelast als resultaat van administratieve procedures, dienen deze procedures in overeenstemming te zijn met beginselen die in wezen gelijkwaardig zijn aan die welke zijn neergelegd in deze Titel.

TITEL 4. : BIJZONDERE VEREISTEN IN VERBAND MET MAATREGELEN AAN DE GRENS375

Artikel 51. Opschorting van het in het vrije verkeer brengen door douane-autoriteiten

In overeenstemming met de onderstaande bepalingen nemen de Leden procedures376 aan om een houder van een recht, die geldige gronden heeft om te vermoeden dat de invoer van nagemaakte merkartikelen of onrechtmatig gereproduceerde377 goederen waarop een auteursrecht rust, plaats kan hebben, in staat te stellen bij de bevoegde administratieve of rechterlijke autoriteiten een schriftelijk verzoek in te dienen tot opschorting van het in het vrije verkeer brengen van deze goederen door de douane-autoriteiten. De Leden kunnen toestaan dat zulk een verzoek wordt gedaan met betrekking tot goederen die andere inbreuken op rechten uit hoofde van de intellectuele eigendom betreffen, mits wordt voldaan aan de vereisten van deze Titel. De Leden kunnen ook voorzien in overeenkomstige procedures betreffende de opschorting door de douane-autoriteiten van het in het vrije verkeer brengen van inbreukmakende goederen die zijn bestemd voor uitvoer uit hun grondgebied.

Artikel 52. Verzoekschrift

Van een houder van een recht die de procedures ingevolge artikel 51 aanspant, wordt verlangd dat hij voldoende bewijs levert om ten genoegen van de bevoegde autoriteiten aan te tonen dat er, ingevolge de wetgeving van het land van invoer, sprake is van een inbreuk op zijn recht uit hoofde van de intellectuele eigendom en dat hij een voldoende gedetailleerde beschrijving van de goederen verstrekt om deze gemakkelijk herkenbaar te doen zijn voor de douane-autoriteiten. De bevoegde autoriteiten stellen de verzoeker binnen een redelijke termijn ervan in kennis of zij gevolg geven aan zijn verzoek en, wanneer door de bevoegde autoriteiten een termijn wordt bepaald, van de termijn gedurende welke de douane-autoriteiten maatregelen zullen nemen.

Artikel 53. Zekerheid of gelijksoortige waarborg

• 1 De bevoegde autoriteiten hebben de bevoegdheid om van een verzoeker te verlangen dat deze een zekerheid stelt of gelijksoortige waarborg biedt die voldoende is om de verweerder en de bevoegde autoriteiten te beschermen en misbruik te beletten. Deze zekerheid of gelijksoortige waarborg mag niet op onredelijke wijze weerhouden van gebruikmaking van deze procedures.

• 2 Wanneer ingevolge een verzoek krachtens deze Titel het in het vrije verkeer brengen van goederen die tekeningen of modellen van nijverheid, octrooien, patronen of niet openbaar gemaakte informatie betreffen, door de douane-autoriteiten is opgeschort op basis van een beslissing die niet is genomen door een rechterlijke autoriteit of andere onafhankelijke autoriteit, en de termijn bepaald in artikel 55 is verstreken zonder dat de naar behoren gemachtigde autoriteit voorlopige maatregelen heeft genomen, en mits is voldaan aan alle andere voorwaarden voor invoer, is de eigenaar, importeur of geconsigneerde gerechtigd de goederen in het vrije verkeer te brengen tegen zekerheidstelling tot een bedrag dat voldoende is om de houder van het recht tegen inbreuken te beschermen. De betaling van een zodanige zekerheid laat onverlet andere corrigerende maatregelen die de houder van het recht ter beschikking staan, met dien verstande dat de zekerheid wordt opgeheven indien de houder van het recht nalaat binnen een redelijke termijn gebruik te maken van het recht een vordering in te stellen.

Artikel 54. Kennisgeving van opschorting

De importeur en de verzoeker worden onverwijld in kennis gesteld van de opschorting van het in het vrije verkeer brengen van goederen in overeenstemming met artikel 51.

Artikel 55. Duur van de opschorting

Indien de douane-autoriteiten niet binnen een tijdvak van ten hoogste 10 werkdagen nadat de verzoeker kennisgeving van de opschorting is gedaan ervan in kennis zijn gesteld dat een procedure met het oog op een beslissing ten principale is aangespannen door een ander dan de verweerder, of dat de naar behoren gemachtigde autoriteit voorlopige maatregelen heeft genomen waarbij de opschorting van het in het vrije verkeer brengen van de goederen wordt verlengd, worden de goederen vrijgegeven, mits is voldaan aan alle andere voorwaarden voor invoer of uitvoer; in passende gevallen kan deze termijn worden verlengd met 10 werkdagen. Indien een procedure met het oog op een beslissing ten principale is aangespannen, vindt op verzoek van de verweerder een herziening plaats, met inbegrip van een recht te worden gehoord, ten einde binnen een redelijke termijn te beslissen of deze maatregelen moeten worden gewijzigd, herroepen of bevestigd. Niettegenstaande het bovenstaande zijn, wanneer de opschorting van het in het vrije verkeer brengen van goederen wordt uitgevoerd of voortgezet in overeenstemming met een voorlopige rechterlijke maatregel, de bepalingen van artikel 50, zesde lid, van toepassing.

Artikel 56. Schadeloosstelling van de importeur en van de eigenaar van de goederen

De desbetreffende autoriteiten hebben de bevoegdheid de verzoeker te gelasten aan de importeur, de geconsigneerde en de eigenaar van de goederen een passende schadeloosstelling te betalen voor aan hen toegebrachte schade door het ongerechtvaardigde vasthouden van de goederen of door het vasthouden van ingevolge artikel 55 vrijgegeven goederen.

Artikel 57. Recht op inspectie en informatie

Onverminderd de bescherming van vertrouwelijke informatie verlenen de Leden aan de bevoegde autoriteiten de bevoegdheid om de houder van het recht voldoende gelegenheid te bieden om goederen die door de douane-autoriteiten worden vastgehouden, te laten inspecteren om de beweringen van de houder van het recht te kunnen staven. De bevoegde autoriteiten hebben ook de bevoegdheid om de importeur een gelijkwaardige gelegenheid te bieden om zodanige goederen te laten inspecteren. Wanneer een positieve beslissing ten principale is gegeven, kunnen de Leden aan de bevoegde autoriteit de bevoegdheid verlenen om de houder van het recht in kennis te stellen van de naam en het adres van de consignant, de importeur en de geconsigneerde, en van de hoeveelheid goederen in kwestie.

Artikel 58. Optreden ambtshalve

Wanneer de Leden verlangen dat de bevoegde autoriteiten eigener beweging optreden en het in het vrije verkeer brengen opschorten van goederen ten aanzien waarvan zij voldoende bewijs hebben verkregen dat inbreuk wordt gemaakt op een recht uit hoofde van de intellectuele eigendom:

• a. kunnen de bevoegde autoriteiten te allen tijde de houder van het recht verzoeken om informatie die hen kan helpen deze bevoegdheden uit te oefenen;

• b. worden de importeur en de houder van het recht onverwijld van de opschorting in kennis gesteld. Wanneer de importeur bij de bevoegde autoriteiten beroep heeft aangetekend tegen de opschorting, zijn de voorwaarden vervat in artikel 55 van overeenkomstige toepassing op de opschorting;

• c. sluiten de Leden overheidsinstanties en -functionarissen slechts van aansprakelijkheid met betrekking tot passende corrigerende maatregelen uit wanneer zij te goeder trouw hebben gehandeld of voornemens waren zulks te doen.

Artikel 59. Corrigerende maatregelen

Onverminderd andere rechten tot het instellen van een vordering die openstaan voor de houder van het recht, en met inachtneming van het recht van de verweerder om te verzoeken om herziening door een rechterlijke autoriteit, hebben de bevoegde autoriteiten de bevoegdheid de vernietiging of de onttrekking aan het verkeer van de inbreukmakende goederen te gelasten in overeenstemming met de beginselen vervat in artikel 46. Met betrekking tot nagemaakte merkartikelen, staan de autoriteiten niet de wederuitvoer toe van de inbreukmakende goederen in ongewijzigde toestand of onderwerpen zij deze goederen niet aan een andere douaneprocedure, behalve in uitzonderlijke omstandigheden.

Artikel 60. Minimale importen

De Leden kunnen kleine hoeveelheden goederen van niet-commerciële aard in de persoonlijke bagage van reizigers of verzonden in kleine zendingen, van de toepassing van de bovenstaande bepalingen uitsluiten.

TITEL 5. : STRAFRECHTELIJKE PROCEDURES

Artikel 61

De Leden voorzien ten minste in gevallen van opzettelijke namaak van handelsmerken of inbreuk op auteursrechten op commerciële schaal in strafrechtelijke procedures en straffen. De mogelijke sancties omvatten vrijheidsstraffen en/of geldboetes die voldoende zijn om afschrikkend te werken, in overeenstemming met het niveau van de straffen opgelegd voor strafbare feiten van overeenkomstige zwaarte. In passende gevallen omvatten de mogelijke sancties ook de inbeslagneming, verbeurdverklaring en vernietiging van de inbreukmakende goederen en van materialen en werktuigen die voornamelijk zijn gebruikt bij het plegen van het strafbare feit. De Leden kunnen voorzien in strafrechtelijke procedures en straffen in andere gevallen van inbreuk op rechten uit hoofde van de intellectuele eigendom, met name wanneer deze opzettelijk en op commerciële schaal zijn gepleegd.

DEEL IV. VERWERVING EN INSTANDHOUDING VAN RECHTEN UIT HOOFDE VAN DE INTELLECTUELE EIGENDOM EN DAARMEDE SAMENHANGENDE PROCEDURES TUSSEN PARTIJEN

Artikel 62

• 1 De Leden kunnen, als voorwaarde voor de verwerving of instandhouding van de rechten uit hoofde van de intellectuele eigendom bedoeld in de Titels 2 tot en met 6 van Deel II, de naleving van redelijke procedures en formaliteiten vereisen. Deze procedures en formaliteiten dienen in overeenstemming te zijn met de bepalingen van deze Overeenkomst.

• 2 Wanneer de verwerving van een recht uit hoofde van de intellectuele eigendom afhankelijk is van de verlening of inschrijving van het recht, zien de Leden erop toe dat de procedures voor verlening of inschrijving, mits aan de materiële voorwaarden voor de verwerving van het recht wordt voldaan, de verlening of inschrijving van het recht mogelijk maken binnen een redelijke termijn, ten einde ongerechtvaardigde bekorting van de beschermingsduur te vermijden.

• 3 Artikel 4 van het Verdrag van Parijs (1967) is van overeenkomstige toepassing op dienstmerken.

• 4 Op procedures betreffende de verwerving of instandhouding van rechten uit hoofde van de intellectuele eigendom en, wanneer het recht van een Lid in zodanige procedures voorziet, administratieve herroepingen en procedures tussen partijen, zoals oppositie, herroeping en doorhaling, zijn de algemene beginselen vervat in artikel 41, tweede en derde lid, van toepassing.

• 5 Definitieve administratieve beslissingen in de procedures bedoeld in het vierde lid zijn vatbaar voor herziening door een rechterlijke of semi-rechterlijke autoriteit. Het is evenwel niet verplicht een mogelijkheid voor herziening van beslissingen te bieden in gevallen van niet geslaagde oppositie of administratieve herroeping, mits de gronden voor deze procedures kunnen worden aangevochten.

DEEL V. VOORKOMING EN BESLECHTING VAN GESCHILLEN

Artikel 63. Doorzichtigheid

• 1 De wet- en regelgeving en definitieve rechterlijke beslissingen en algemeen geldende administratieve uitspraken die door een Lid uitvoerbaar zijn verklaard met betrekking tot het onderwerp van deze Overeenkomst (het bestaan, de reikwijdte, de verwerving en de handhaving van rechten uit hoofde van de intellectuele eigendom en het beletten van misbruik daarvan) worden gepubliceerd, of wanneer een zodanige publikatie niet mogelijk is, openbaar toegankelijk gemaakt, in een nationale taal, op zodanige wijze dat regeringen en houders van rechten daarvan kennis kunnen nemen. Overeenkomsten betreffende het onderwerp van deze Overeenkomst, die van kracht zijn tussen de regering of een overheidsinstantie van een Lid en de regering of een overheidsinstantie van een ander Lid, dienen ook te worden gepubliceerd.

• 2 De Leden brengen de in het eerste lid bedoelde wet- en regelgeving ter kennis van de Raad voor de handelsaspecten van de intellectuele eigendom, ten einde deze Raad te helpen bij zijn toetsing van de werking van deze Overeenkomst. De Raad poogt de op de Leden drukkende last bij de nakoming van deze verplichting zo gering mogelijk te doen zijn en kan besluiten ontheffing te verlenen van de verplichting deze wet- en regelgeving direct ter kennis van de Raad te brengen als het overleg met de WIPO inzake de instelling van een gemeenschappelijk register van deze wet- en regelgeving met succes worden bekroond. De Raad beziet in dit verband ook alle vereiste handelingen betreffende kennisgevingen ingevolge de verplichtingen krachtens deze Overeenkomst die voortvloeien uit de bepalingen van artikel 6ter van het Verdrag van Parijs (1967).

• 3 Elk Lid dient bereid te zijn, in antwoord op een schriftelijk verzoek van een ander Lid, informatie van het in het eerste lid bedoelde soort te verstrekken. Een Lid dat redenen heeft om aan te nemen dat een specifieke rechterlijke beslissing of administratieve uitspraak of bilaterale overeenkomst op het gebied van de intellectuele eigendom zijn rechten krachtens deze Overeenkomst raakt, kan ook schriftelijk verzoeken om toegang tot of voldoende gedetailleerde informatie over deze specifieke rechterlijke beslissingen of administratieve uitspraken of bilaterale overeenkomsten.

• 4 Geen enkele bepaling in het eerste, tweede en derde lid verlangt van Leden dat zij vertrouwelijke informatie openbaar maken die de rechtshandhaving zou belemmeren of anderszins in strijd zou zijn met het algemeen belang of de legitieme handelsbelangen van bepaalde overheidsondernemingen of particuliere ondernemingen zou schaden.

Artikel 64. Beslechting van geschillen

• 1 De bepalingen van de artikelen XXII en XXIII van de GATT-Overeenkomst van 1994, zoals nader uitgewerkt en toegepast in het Memorandum van Overeenstemming inzake de beslechting van geschillen, zijn van toepassing op het overleg en de beslechting van geschillen ingevolge deze Overeenkomst, behalve indien daarin uitdrukkelijk anders is bepaald.

• 2 Artikel XXIII, eerste lid, letters b en c, van de GATT-Overeenkomst van 1994 zijn voor een termijn van vijf jaar van de datum van inwerkingtreding van de WTO-Overeenkomst niet van toepassing op de beslechting van geschillen ingevolge deze Overeenkomst.

• 3 Gedurende de in het tweede lid bedoelde termijn onderzoekt de Raad voor de handelsaspecten van de intellectuele eigendom de mogelijkheden en modaliteiten voor klachten van het soort bedoeld in artikel XXIII, eerste lid, letters b en c, die worden ingediend ingevolge deze Overeenkomst en legt deze Raad zijn aanbevelingen ter goedkeuring voor aan de Ministeriële Conferentie. Besluiten van de Ministeriële Conferentie tot goedkeuring van zodanige aanbevelingen of tot verlenging van de in het tweede lid bedoelde termijn worden slechts genomen bij consensus en goedgekeurde aanbevelingen gelden voor alle Leden zonder dat zij formeel behoeven te worden aanvaard.

DEEL VI. OVERGANGSREGELINGEN

Artikel 65. Overgangsregelingen

• 1 Onverminderd het bepaalde in het tweede, derde en vierde lid is een Lid niet verplicht de bepalingen van deze Overeenkomst tot te passen vóór het verstrijken van een algemene termijn van een jaar na de datum van inwerkingtreding van de WTO-Overeenkomst.

• 2 Een Lid dat ontwikkelingsland is, is gerechtigd de datum van toepassing, zoals omschreven in het eerste lid, van de bepalingen van deze Overeenkomst, behalve van de artikelen 3, 4 en 5 nog vier jaar uit te stellen.

• 3 Ook voor andere Leden die zich bevinden in de fase van overgang van een centraal geleide economie naar een vrije markteconomie en die bezig zijn met een structurele hervorming van hun stelsel van de intellectuele eigendom en voor bijzondere problemen staan bij de opstelling en toepassing van wet- en regelgeving inzake de intellectuele eigendom, geldt een periode van uitstel zoals voorzien in het tweede lid.

• 4 Voor zover een Lid dat ontwikkelingsland is door deze Overeenkomst wordt verplicht de octrooibescherming van produkten uit te strekken tot terreinen van technologie die op zijn grondgebied niet voor bescherming in aanmerking komen op de datum waarop deze Overeenkomst in het algemeen van toepassing wordt voor dat Lid, zoals omschreven in het tweede lid, kan het de toepassing van de bepalingen inzake octrooien voor produkten van Titel 5 van Deel II tot die terreinen van technologie nogmaals uitstellen voor een termijn van vijf jaar.

• 5 Een Lid dat gebruik maakt van een overgangstermijn ingevolge het eerste, tweede, derde of vierde lid ziet erop toe dat veranderingen in zijn wet- en regelgeving en rechtspraktijk gedurende die termijn niet leiden tot een mindere mate van overeenstemming met de bepalingen van deze Overeenkomst.

Artikel 66. Leden die minstontwikkeld land zijn

• 1 Gezien de bijzondere behoeften en vereisten van Leden die minstontwikkeld land zijn, hun economische, financiële en administratieve beperkingen, en hun behoefte aan flexibiliteit om een levensvatbare technologische basis te scheppen, wordt van deze Leden niet verlangd dat zij gedurende een tijdvak van 10 jaar na de datum van toepassing zoals omschreven in artikel 65, eerste lid, de bepalingen van deze Overeenkomst, behalve van de artikelen 3, 4 en 5, toepassen. De Raad voor de handelsaspecten van de intellectuele eigendom verleent, op naar behoren met redenen omkleed verzoek van een Lid dat minstontwikkeld land is, verlengingen van deze termijn.

• 2 Leden die ontwikkeld land zijn, bieden ondernemingen en instellingen op hun grondgebied stimulansen met het oog op de bevordering en aanmoediging van de overdracht van technologie aan Leden die minstontwikkeld land zijn, ten einde deze in staat te stellen een deugdelijke en levensvatbare technologische basis te scheppen.

Artikel 67. Technische samenwerking

Ter vergemakkelijking van de toepassing van deze Overeenkomst voorzien Leden die ontwikkeld land zijn, op verzoek en op onderling overeengekomen voorwaarden, in technische en financiële samenwerking ten gunste van Leden die ontwikkelingsland of minstontwikkeld land zijn. Deze samenwerking omvat bijstand bij de opstelling van wet- en regelgeving inzake de bescherming en handhaving van rechten uit hoofde van de intellectuele eigendom, alsmede inzake het voorkomen van misbruik daarvan, en omvat steun betreffende de oprichting of versterking van nationale bureaus en instanties voor deze aangelegenheden, met inbegrip van de opleiding van personeel.

DEEL VII. INSTITUTIONELE REGELINGEN; SLOTBEPALINGEN

Artikel 68. Raad voor de handelsaspecten van de intellectuele eigendom

De Raad voor de handelsaspecten van de intellectuele eigendom volgt de werking van deze Overeenkomst en met name de nakoming door de Leden van hun verplichtingen, en biedt de Leden gelegenheid voor overleg inzake aangelegenheden betreffende de handelsaspecten van de intellectuele eigendom. De raad kwijt zich van de andere taken waarmee hij door de Leden wordt belast en biedt in het bijzonder alle door hen verzochte bijstand in het kader van procedures voor de beslechting van geschillen. Bij het verrichten van zijn taken kan de Raad voor de handelsaspecten van de intellectuele eigendom overleg plegen met en informatie inwinnen uit elke door hem passend geachte bron. In overleg met de WIPO streeft de Raad ernaar, binnen een jaar na zijn eerste vergadering, passende regelingen voor samenwerking met organen van die Organisatie tot stand te brengen.

Artikel 69. Internationale samenwerking

De Leden komen overeen met elkaar samen te werken ten einde de internationale handel in goederen die inbreuk maken op rechten uit hoofde van de intellectuele eigendom uit te bannen. Hiertoe stellen zij contactpunten bij hun administratie in en geven de andere Partijen daarvan kennis, en zijn zij bereid informatie uit te wisselen over de handel in inbreukmakende goederen. Met name bevorderen zij de uitwisseling van informatie en de samenwerking tussen douane-autoriteiten met betrekking tot de handel in nagemaakte merkartikelen en onrechtmatig gereproduceerde goederen waarop een auteursrecht rust.

Artikel 70. Bescherming van bestaande onderwerpen

• 1 Deze Overeenkomst schept geen verplichtingen met betrekkingen tot handelingen die zich hebben voorgedaan vóór de datum van toepassing van de Overeenkomst voor het Lid in kwestie.

• 2 Behalve indien in deze Overeenkomst anders is bepaald, schept deze Overeenkomst verplichtingen met betrekking tot alle onderwerpen die bestonden op de datum van toepassing van deze Overeenkomst voor het Lid in kwestie en die op genoemde datum in dat Lid zijn beschermd, of die voldoen of later gaan voldoen aan de criteria voor bescherming ingevolge deze Overeenkomst. Met betrekking tot dit lid en het derde en vierde lid, zijn de verplichtingen inzake auteursrecht met betrekking tot bestaande werken uitsluitend die welke zijn bepaald krachtens artikel 18 van de Berner Conventie (1971) en worden de verplichtingen ten aanzien van de rechten van producenten van fonogrammen en uitvoerende kunstenaars met betrekking tot bestaande fonogrammen uitsluitend bepaald krachtens artikel 18 van de Berner Conventie (1971) zoals van toepassing geworden krachtens artikel 14, zesde lid, van deze Overeenkomst.

• 3 Er is geen verplichting om de bescherming te herstellen van onderwerpen die op de datum van toepassing van deze Overeenkomst voor het Lid in kwestie tot het publiek domein zijn gaan behoren.

• 4 Wat betreft handelingen met betrekking tot specifieke voorwerpen waarin beschermde onderwerpen zijn belichaamd, die ingevolge de wetgeving overeenkomstig deze Overeenkomst inbreuk gaan vormen, en waarmee een aanvang was gemaakt of ten aanzien waarvan een aanzienlijke investering was gedaan, vóór de datum van aanvaarding van de WTO-Overeenkomst door dat Lid, kan een Lid voorzien in een beperking van de aan de houder van het recht ter beschikking staande corrigerende maatregelen wat betreft de voortzetting van zulke handelingen na de datum van toepassing van deze Overeenkomst voor dat Lid. In zulke gevallen voorziet het Lid evenwel ten minste in de betaling van een billijke vergoeding.

• 5 Een Lid is niet verplicht de bepalingen van artikel 11 en van artikel 14, vierde lid, toe te passen met betrekking tot originelen of kopieën aangekocht vóór de datum van toepassing van deze Overeenkomst voor dat Lid.

• 6 Van de Leden wordt niet verlangd dat zij artikel 31, of in artikel 27, eerste lid, genoemde vereiste dat octrooirechten kunnen worden genoten zonder onderscheid op grond van het gebied van technologie, toepassen op gebruik zonder de toestemming van de houder van het recht wanneer de toestemming voor zodanig gebruik door de overheid was verleend vóór de datum waarop deze Overeenkomst bekend werd.

• 7 In het geval van rechten uit hoofde van de intellectuele eigendom waarvoor bescherming afhankelijk is van inschrijving, is het toegestaan aanvragen voor bescherming die hangende zijn op de datum van toepassing van deze Overeenkomst voor het Lid in kwestie te wijzigen om eventuele uitgebreidere bescherming te vorderen zoals voorzien ingevolge de bepalingen van deze Overeenkomst. Deze wijzigingen mogen geen nieuwe onderwerpen omvatten.

• 8 Wanneer een Lid niet op de datum van inwerkingtreding van de WTO-Overeenkomst voorziet in octrooibescherming voor farmaceutische produkten en chemische produkten voor de landbouw overeenkomstig zijn verplichtingen ingevolge artikel 27, dient dat Lid:

  • a. niettegenstaande de bepalingen van Deel VI, vanaf de datum van inwerkingtreding van de WTO-Overeenkomst een mogelijkheid te bieden waardoor octrooiaanvragen voor zodanige uitvindingen kunnen worden ingediend;

  • b. vanaf de datum van toepassing van deze Overeenkomst op deze aanvragen de in deze Overeenkomst neergelegde criteria voor octrooieerbaarheid toe te passen, als waren deze criteria toegepast op de datum van indiening in dat Lid, of wanneer er een recht van voorrang bestaat en daar beroep op wordt gedaan, de voorrangsdatum van de aanvrage; en

  • c. octrooibescherming te bieden in overeenstemming met deze Overeenkomst vanaf de verlening van het octrooi en voor de resterende duur van het octrooi, gerekend vanaf de datum van indiening in overeenstemming met artikel 33 van deze Overeenkomst, voor die aanvragen die voldoen aan de criteria voor bescherming bedoeld in letter b.

• 9 Wanneer een produkt het onderwerp is van een octrooiaanvrage in een Lid in overeenstemming met het achtste lid, letter a, worden uitsluitende rechten voor het in de handel brengen verleend, niettegenstaande de bepalingen van Deel VI, voor een termijn van vijf jaar na verkrijging van de goedkeuring tot het in de handel brengen in dat Lid of totdat een octrooi voor een produkt in dat Lid is verleend of afgewezen, naar gelang van welke van beide termijnen de kortste is, mits na de inwerkingtreding van de WTO-Overeenkomst voor dat produkt een octrooiaanvrage is ingediend en een octrooi is verleend in een ander Lid en in dat andere Lid toestemming voor het in de handel brengen is verkregen.

Artikel 71. Toetsing en wijziging

• 1 De Raad voor de handelsaspecten van de intellectuele eigendom toetst de toepassing van deze Overeenkomst na het verstrijken van de overgangsperiode bedoeld in artikel 65, tweede lid. De Raad toetst de toepassing, met inachtneming van de daarbij opgedane ervaring, twee jaar na die datum en met dezelfde tussenpozen daarna. De Raad kan ook overgaan tot toetsing in het licht van van belang zijnde nieuwe ontwikkelingen, die wijziging of amendering van deze Overeenkomst zouden kunnen wettigen.

• 2 Wijzigingen die slechts ten doel hebben de bescherming van de intellectuele eigendom aan te passen aan hogere niveaus die zijn bereikt en gelden in andere multilaterale overeenkomsten en die ingevolge deze overeenkomsten door alle Leden van de WTO zijn aanvaard, kunnen worden voorgelegd aan de Ministeriële Conferentie met het oog op maatregelen in overeenstemming met artikel X, zesde lid, van de WTO-Overeenkomst op basis van een bij consensus aangenomen voorstel van de Raad voor de handelsaspecten van de intellectuele eigendom.

Artikel 72. Voorbehouden

Zonder toestemming van de andere Leden mogen geen voorbehouden worden gemaakt met betrekking tot enige bepaling van deze Overeenkomst.

Artikel 73. Uitzonderingen op grond van veiligheidsoverwegingen

Geen enkele bepaling in deze Overeenkomst mag zo worden uitgelegd:

• a. dat daardoor van een Lid wordt verlangd dat dit informatie verstrekt waarvan het de openbaarmaking in strijd acht met zijn wezenlijke veiligheidsbelangen; of

• b. dat daardoor een Lid wordt belet over te gaan tot maatregelen die het noodzakelijk acht voor de bescherming van zijn wezenlijke veiligheidsbelangen;

  • i. met betrekking tot splijtstoffen of de stoffen waaruit zij worden vervaardigd;

  • ii. met betrekking tot de handel in wapens, munitie en oorlogstuig en tot de handel in andere goederen en materialen die direct of indirect wordt gedreven met het doel een krijgsmacht te bevoorraden;

  • iii. genomen ten tijde van oorlog of een andere noodsituatie in de internationale betrekkingen; of

• c. dat daardoor een Lid wordt belet over te gaan tot maatregelen ingevolge zijn verplichtingen krachtens het Handvest der Verenigde Naties voor de handhaving van de internationale vrede en veiligheid.

Bijlage bij de TRIPS-Overeenkomst

• 1. Voor de toepassing van artikel 31bis en deze bijlage betekenen:

  • a. „farmaceutisch product”: elk geoctrooieerd product, of product dat is gemaakt volgens een geoctrooieerde werkwijze, van de farmaceutische sector, en dat noodzakelijk is om om iets te doen aan volksgezondheidsproblemen als bedoeld in punt 1 van de verklaring inzake de TRIPS-overeenkomst en de volksgezondheid (WT/MIN(01)/ DEC/2). Daarbij zijn de actieve bestanddelen die nodig zijn voor de productie en de diagnose-sets die nodig zijn voor het gebruik, inbegrepen378;

  • b. „in aanmerking komend importerend lid”: elk minst-ontwikkeld WTO-lid en elk ander WTO-lid dat de raad voor de handelsaspecten van de intellectuele eigendom (TRIPS) kennis heeft gegeven379 van zijn bedoeling om als importeur gebruik te maken van het stelsel volgens artikel 31bis en deze bijlage. Elk lid kan op elk ogenblik melden gebruik te zullen maken van het stelsel in zijn geheel, of gedeeltelijk, bijvoorbeeld alleen in gevallen van een nationale noodsituatie of andere omstandigheden van uiterste urgentie of in gevallen van openbaar niet-commercieel gebruik. Er wordt genoteerd dat sommige leden het stelsel niet als importeurs zullen gebruiken380 en dat sommige andere leden hebben verklaard dat zij alleen in gevallen van een nationale noodsituatie of andere omstandigheden van uiterste urgentie van het stelsel gebruik zullen maken;

  • c. „exporterend lid”: elk lid dat gebruik maakt van het stelsel voor de productie van farmaceutische producten ten behoeve van een in aanmerking komend importerend lid en deze producten naar dat land uitvoert.

• 2. De voorwaarden waarnaar in lid 1 van artikel 31bis wordt verwezen, zijn de volgende:

  • a. het (de) in aanmerking komende importerende lid (leden)381 heeft (hebben) aan de raad voor de handelsaspecten van de intellectuele eigendom (TRIPS) kennis gegeven382 van het volgende:

    • i. de benamingen en verwachte hoeveelheden van de benodigde producten (het benodigde product)383;

    • ii. de bevestiging van het feit dat het in aanmerking komende importerende lid in kwestie, een ander dan een minst-ontwikkeld WTO-lid, op een van de manieren als bedoeld in het aanhangsel bij deze bijlage bewijzen heeft overgelegd waaruit blijkt dat het over onvoldoende of geen fabricagecapaciteit beschikt in de farmaceutische sector voor het product (de producten) in kwestie; en

    • iii. de bevestiging dat indien een farmaceutisch product op zijn territorium is geoctrooieerd, het een dwanglicentie heeft verleend, of van plan is te verlenen, overeenkomstig de artikelen 31 en 31bis van deze overeenkomst en de bepalingen van deze bijlage384;

  • b. de dwanglicentie die door het exporterende lid volgens het stelsel is verleend, bevat de volgende voorwaarden:

    • i. alleen de noodzakelijke hoeveelheid voor de behoeften van het (de) in aanmerking komende importerende lid (leden) mag onder de licentie worden geproduceerd en de volledige productie moet worden uitgevoerd naar het lid (de leden) die zijn (hun) behoeften te kennen heeft (hebben) gegeven aan de raad voor de handelsaspecten van de intellectuele eigendom (TRIPS);

    • ii. de producten die onder de licentie worden geproduceerd moeten met specifieke labels of merktekenen duidelijk worden geïdentificeerd als zijnde geproduceerd onder het stelsel; de leveranciers moeten deze producten door een speciale verpakking en/of door een speciale kleur of vorm van de producten zelf duidelijk onderscheiden, voor zover een dergelijk onderscheid praktisch uitvoerbaar is en geen significante gevolgen heeft voor de prijs; en

    • iii. vóór verscheping moet de licentiehouder op een website385 de volgende informatie meedelen:

      • – de hoeveelheden die naar elke bestemming als bedoeld in i hierboven worden geleverd; en

      • – de kenmerken van het product (de producten) als bedoeld in ii hierboven;

  • c. het exporterende lid deelt de verlening van de licentie aan de raad voor de handelsaspecten van de intellectuele eigendom (TRIPS) mee386, alsook de daaraan verbonden voorwaarden.387 De verstrekte informatie moet de naam en het adres van de licentiehouder, het product (de producten) waarvoor de licentie is verleend, de toegestane hoeveelheden, het land of de landen waarnaar de producten worden geleverd, alsook de duur van de licentie bevatten. Daarnaast moet de kennisgeving het adres van de website als bedoeld in biii hierboven aangeven.

• 3. Om te verzekeren dat de in het kader van het stelsel ingevoerde producten ook daadwerkelijk worden gebruikt voor de volksgezondheidsdoeleinden die aan de basis liggen van de invoer, moeten de in aanmerking komende importerende leden binnen hun mogelijkheden redelijke maatregelen treffen, overeenkomstig hun administratieve capaciteiten en met een blik op het risico van handelsverlegging, om te vermijden dat de producten die in het kader van het stelsel op hun grondgebied waren ingevoerd, opnieuw worden geëxporteerd. Indien een in aanmerking komend importerend lid dat een ontwikkelingsland of een minstontwikkeld land is, moeilijkheden ondervindt om deze bepaling uit te voeren, moeten de leden die ontwikkeld land zijn op verzoek en onder onderling overeengekomen voorwaarden technische en financiële steun bieden om de tenuitvoerlegging te vergemakkelijken.

• 4. De leden garanderen de beschikbaarheid van doeltreffende wettelijke middelen om de import naar en de verkoop op hun grondgebied van producten die zijn geproduceerd in het kader van het stelsel en die tegen de bepalingen van het stelsel in naar hun markten worden afgeleid, te voorkomen. Hierbij maken zij gebruik van de middelen waarin deze overeenkomst voorziet. Indien een lid van oordeel is dat deze maatregelen niet volstaan, kan de kwestie op verzoek van dat lid worden bekeken in de raad voor de handelsaspecten van de intellectuele eigendom (TRIPS).

• 5. Met het oog op het gebruik van schaalvoordelen ten einde de koopkracht voor farmaceutische producten te vergroten en de lokale productie ervan te vergemakkelijken, wordt erkend dat de ontwikkeling van systemen die de verlening van regionale octrooien mogelijk maken voor leden als bedoeld in lid 3 van artikel 31bis moet worden bevorderd. Hiertoe verbinden de leden die ontwikkeld land zijn zich ertoe overeenkomstig artikel 67 van deze overeenkomst, ook in samenwerking met andere relevante intergouvernementele organisaties, technische samenwerking aan te bieden.

• 6. De leden erkennen dat het wenselijk is de overdracht van technologie en capaciteitsopbouw in the farmaceutische sector te bevorderen om de problemen van leden met onvoldoende of geen fabricagecapaciteiten in de farmaceutische sector te verhelpen. De in aanmerking komende importerende leden en de exporterende leden worden daarom aangemoedigd het stelsel in die zin te gebruiken. De leden verbinden zich er gezamenlijk toe in het kader van de werkzaamheden krachtens artikel 66, lid 2, van deze overeenkomst, punt 7 van de verklaring inzake de TRIPS-overeenkomst en de volksgezondheid en andere relevante werkzaamheden van de raad voor de handelsaspecten van de intellectuele eigendom (TRIPS) speciaal aandacht te hebben voor de overdracht van technologie en capaciteitsopbouw in de farmaceutische sector.

• 7. De raad voor de handelsaspecten van de intellectuele eigendom (TRIPS) evalueert jaarlijks het functioneren van het stelsel met het oog op een efficiënte werking en brengt hierover jaarlijks verslag uit bij de algemene raad.

Aanhangsel bij de Bijlage bij de TRIPS-Overeenkomst

Beoordeling van de fabricagecapaciteit in de farmaceutische sector

De minst-ontwikkelde leden worden verondersteld over onvoldoende of geen fabricagecapaciteit in de farmaceutische sector te beschikken.

Voor andere in aanmerking komende importerende leden kan onvoldoende of geen fabricagecapaciteit voor de betrokken producten (het betrokken product) worden vastgesteld op een van de volgende manieren:

• i. het lid in kwestie heeft bewijzen overgelegd dat het niet beschikt over fabricagecapaciteit in de farmaceutische sector;

  of

• ii. indien het lid over enige fabricagecapaciteit in de farmaceutische sector beschikt, heeft het na onderzoek vastgesteld dat deze capaciteit, met uitsluiting van alle capaciteit die in bezit is van of wordt gecontroleerd door de octrooihouder, momenteel onvoldoende is voor de bestaande behoeften. Indien wordt bewezen dat de capaciteit in kwestie daarna wel voldoet aan de behoeften van het lid, is het stelsel niet langer van toepassing.

BIJLAGE 2. Memorandum van Overeenstemming inzake de regels en procedures betreffende de beslechting van geschillen

De Leden komen hierbij het volgende overeen:

Artikel 1. Reikwijdte en toepassing

• 1 De regels en procedures van dit Memorandum van Overeenstemming zijn van toepassing op geschillen die worden voorgelegd ingevolge de bepalingen inzake overleg en geschillenbeslechting van de in Aanhangsel 1 bij dit Memorandum van Overeenstemming vermelde overeenkomsten (hierna te noemen „de vermelde overeenkomsten”). De regels en procedures van dit Memorandum van Overeenstemming zijn ook van toepassing op consultaties en de beslechting van geschillen tussen Leden betreffende hun rechten en verplichtingen ingevolge de bepalingen van de Overeenkomst tot oprichting van de Wereldhandelsorganisatie (WTO) en van dit Memorandum van Overeenstemming, hetzij afzonderlijk, hetzij in combinatie met een andere vermelde overeenkomst.

• 2 De regels en procedures van dit Memorandum van Overeenstemming zijn van toepassing met inachtneming van de bijzondere of aanvullende regels en procedures inzake geschillenbeslechting, vervat in de vermelde overeenkomsten, die zijn aangeduid in Aanhangsel 2 bij dit Memorandum van Overeenstemming. Voor zover er een verschil bestaat tussen de regels en procedures van dit Memorandum van Overeenstemming en de in Aanhangsel 2 genoemde bijzondere of aanvullende regels en procedures, hebben de bijzondere of aanvullende regels en procedures van Aanhangsel 2 voorrang. Indien er in geschillen waarop de regels en procedures van meer dan één vermelde overeenkomst betrekking hebben, een conflict bestaat tussen de bijzondere of aanvullende regels en procedures van de desbetreffende overeenkomsten, en de partijen bij het geschil niet binnen twintig dagen na de vorming van het panel tot overeenstemming kunnen komen over de regels en procedures, bepaalt de Voorzitter van het Orgaan voor Geschillenbeslechting bedoeld in artikel 2, eerste lid (hierna in dit Memorandum van Overeenstemming te noemen het „DSB”), in overleg met de partijen bij het geschil, binnen tien dagen na een verzoek van één van beide Leden welke regels en procedures moeten worden gevolgd. De Voorzitter laat zich leiden door het beginsel dat, waar mogelijk, bijzondere of aanvullende regels en procedures dienen te worden toegepast en dat de in dit Memorandum van Overeenstemming uiteengezette regels en procedures dienen te worden toegepast voor zover zulks noodzakelijk is om een conflict te vermijden.

Artikel 2. Uitvoering

• 1 Het Orgaan voor Geschillenbeslechting wordt hierbij ingesteld ter uitvoering van deze regels en procedures en van de bepalingen inzake overleg en geschillenbeslechting van de vermelde overeenkomsten, tenzij in een vermelde overeenkomst anders is bepaald. Het DSB heeft bijgevolg de bevoegdheid panels te vormen, rapporten van een panel en de Beroepsinstantie aan te nemen, toezicht te houden op de tenuitvoerlegging van uitspraken en aanbevelingen en machtiging te verlenen voor het schorsen van concessies en andere verplichtingen ingevolge de vermelde overeenkomsten. Ten aanzien van geschillen die voortvloeien uit een vermelde overeenkomst die een Plurilaterale Handelsovereenkomst is, heeft de hierin gebruikte term „Lid” slechts betrekking op Leden die partij zijn bij de desbetreffende Plurilaterale Handelsovereenkomst. Wanneer het DSB de bepalingen inzake geschillenbeslechting van een Plurilaterale Handelsovereenkomst toepast, kunnen slechts Leden die partij zijn bij die overeenkomst deelnemen aan door het DSB genomen beslissingen of maatregelen met betrekking tot dat geschil.

• 2 Het DSB stelt de desbetreffende raden en commissies van de WTO in kennis van alle ontwikkelingen in geschillen met betrekking tot de bepalingen van de onderscheiden vermelde overeenkomsten.

• 3 Het DSB komt zo vaak bijeen als noodzakelijk is ter verrichting van zijn taken binnen de in dit Memorandum van Overeenstemming bepaalde termijnen.

• 4 Wanneer de regels en procedures van dit Memorandum van Overeenstemming voorschrijven dat het DSB een beslissing neemt, doet het zulks bij consensus388.

Artikel 3. Algemene bepalingen

• 1 De Leden bevestigen dat zij vasthouden aan de beginselen voor de behandeling van geschillen die tot dusver werden toegepast ingevolge de artikelen XXII en XXIII van de GATT-Overeenkomst van 1947, zoals hierin nader uitgewerkt en gewijzigd.

• 2 Het stelsel voor geschillenbeslechting van de WTO is een hoofdpijler waarmee aan het multilaterale handelsstelsel zekerheid en voorspelbaarheid wordt toegevoegd. De Leden erkennen dat het dient ter bescherming van de rechten en verplichtingen van de Leden ingevolge de vermelde overeenkomsten en ter verheldering van de bestaande bepalingen van die overeenkomsten in overeenstemming met de gebruikelijke interpretatieregels van het internationaal publiek recht. Aanbevelingen en uitspraken van het DSB kunnen de in de vermelde overeenkomsten bepaalde rechten en verplichtingen niet aanvullen of beperken.

• 3 Spoedig een regeling treffen voor omstandigheden waarin een Lid van mening is dat voordelen die hem al dan niet rechtstreeks toekomen ingevolge de vermelde overeenkomsten worden uitgehold door maatregelen van een ander Lid, is van wezenlijk belang voor het effectief functioneren van de WTO en het bewaren van een juist evenwicht tussen de rechten en verplichtingen van Leden.

• 4 Aanbevelingen of uitspraken van het DSB hebben tot doel te komen tot een bevredigende regeling van de kwestie in overeenstemming met de rechten en verplichtingen ingevolge dit Memorandum van Overeenstemming en ingevolge de vermelde overeenkomsten.

• 5 Alle oplossingen voor kwesties die formeel zijn voorgelegd ingevolge de regels en procedures inzake overleg en geschillenbeslechting van de vermelde overeenkomsten, met inbegrip van arbitrale uitspraken, dienen in overeenstemming te zijn met die overeenkomsten en mogen voordelen die een Lid ingevolge die overeenkomsten toekomen, niet tenietdoen of uithollen, noch de verwezenlijking van een doelstelling van die overeenkomsten belemmeren.

• 6 Onderling overeengekomen oplossingen voor kwesties die formeel zijn voorgelegd ingevolge de bepalingen inzake overleg en geschillenbeslechting van de vermelde overeenkomsten worden ter kennis van het DSB en de desbetreffende raden en commissies gebracht, waarbij elk Lid alle daarop betrekking hebben punten naar voren kan brengen.

• 7 Alvorens een zaak aanhangig te maken beoordeelt een Lid zelf of handelen overeenkomstig deze procedures zinvol zou zijn. De regeling inzake geschillenbeslechting heeft tot doel een positieve oplossing voor een geschil te bewerkstelligen. Een oplossing die wederzijds aanvaardbaar is voor de partijen bij het geschil en die verenigbaar is met de vermelde overeenkomsten, verdient duidelijk de voorkeur. Bij gebreke van een onderling overeengekomen oplossing, is normaliter de eerste doelstelling van de regeling inzake geschillenbeslechting te bewerkstelligen dat de desbetreffende maatregelen worden ingetrokken indien deze onverenigbaar worden geacht met de bepalingen van één van de vermelde overeenkomsten. Tot het bieden van compensatie dient slechts de toevlucht te worden genomen indien de onmiddellijke intrekking van de maatregel niet uitvoerbaar is en dan slechts als tijdelijke maatregel in afwachting van de intrekking van de maatregel die onverenigbaar is met een vermelde overeenkomst. Het laatste hulpmiddel dat dit Memorandum van Overeenstemming biedt voor het Lid dat de procedures voor geschillenbeslechting inroept, is de mogelijkheid de toepassing van concessies of andere verplichtingen ingevolge de vermelde overeenkomsten op discriminatoire wijze jegens het andere Lid te schorsen, op voorwaarde dat het DSB machtiging verleent voor dergelijke maatregelen.

• 8 In gevallen waarin sprake is van niet-nakoming van de ingevolge een vermelde overeenkomst aangegane verplichtingen, wordt de actie vooralsnog beschouwd als een geval van tenietdoen of uitholling. Dit betekent dat normaliter wordt verondersteld dat een schending van de regels een nadelig effect heeft voor andere Leden die partij zijn bij die vermelde overeenkomst, en in die gevallen is het aan het Lid waartegen de klacht is ingediend om de beschuldiging te weerleggen.

• 9 De bepalingen van dit Memorandum van Overeenstemming doen geen afbreuk aan de rechten van Leden om te trachten een gezaghebbende uitlegging van de bepalingen van een vermelde overeenkomst te verkrijgen door middel van een beslissing ingevolge de WTO-Overeenkomst of een vermelde overeenkomst.

• 10 Er bestaat overeenstemming over het feit dat verzoeken om conciliatie en de gebruikmaking van de procedures voor geschillenbeslechting niet dienen te zijn bedoeld of worden beschouwd als contentieuze gedragingen en dat, indien een geschil ontstaat, alle Leden te goeder trouw deze procedures zullen voeren in een streven het geschil op te lossen. Er bestaat tevens overeenstemming over het feit dat klachten en klachten in reconventie met betrekking tot verschillende kwesties niet dienen te worden gevoegd.

• 11 Dit Memorandum van Overeenstemming wordt slechts toegepast ten aanzien van nieuwe verzoeken om overleg ingevolge de bepalingen inzake overleg van de vermelde overeenkomsten die op of na de datum van inwerkingtreding van de WTO-Overeenkomst zijn gedaan. Op geschillen ten aanzien waarvan het verzoek om overleg vóór de inwerkingtreding van de WTO-Overeenkomst werd gedaan ingevolge de GATT-Overeenkomst van 1947 of ingevolge een andere overeenkomst die aan een vermelde overeenkomst voorafging, blijven de desbetreffende regels en procedures inzake geschillenbeslechting van toepassing die onmiddellijk vóór de inwerkingtreding van de WTO-Overeenkomst van kracht waren.389

• 12 Indien door een Lid dat ontwikkelingsland is een klacht op grond van een vermelde overeenkomst wordt ingediend tegen een Lid dat ontwikkeld land is, heeft de klager, niettegenstaande het elfde lid, het recht om zich, in plaats van op de bepalingen van de artikelen 4, 5, 6 en 12 van dit Memorandum van Overeenstemming, te beroepen op de desbetreffende bepalingen van het Besluit van de Overeenkomstsluitende Partijen van 5 april 1966 (BISD 14S/18), met dien verstande dat indien het panel van oordeel is dat de in paragraaf 7 van dit besluit bedoelde termijn te kort is om zijn rapport te verstrekken, die termijn met instemming van de klager kan worden verlengd. Voor zover er een verschil bestaat tussen de regels en procedures van de artikelen 4, 5, 6 en 12 en de desbetreffende regels en procedures van het Besluit, hebben de laatstbedoelde voorrang.

Artikel 4. Consultaties

• 1 De Leden bevestigen hun vastbeslotenheid om de doeltreffendheid van de door de Leden gehanteerde overlegprocedures te versterken en te verbeteren.

• 2 Elk Lid verplicht zich ertoe overleg betreffende de door een ander Lid naar voren gebrachte bezwaren tegen maatregelen die op het grondgebied van eerstbedoeld Lid zijn genomen en die de werking van de vermelde overeenkomsten beïnvloeden, welwillend in overweging te nemen en daartoe passende gelegenheid te bieden.390

• 3 Indien een verzoek om consultaties ingevolge een vermelde overeenkomst wordt gedaan, dient het Lid waaraan het verzoek is gericht, tenzij onderling anders is overeengekomen, binnen tien dagen na ontvangst op het verzoek te reageren en te goeder trouw overleg aan te gaan binnen een termijn van ten hoogste dertig dagen te rekenen vanaf de datum van ontvangst van het verzoek, teneinde tot een wederzijds bevredigende oplossing te komen. Indien het Lid niet binnen tien dagen na ontvangst van het verzoek reageert, of niet binnen een termijn van ten hoogste dertig dagen, dan wel een andere onderling overeengekomen termijn, te rekenen vanaf de datum van het verzoek, overleg aangaat, kan het Lid dat om het voeren van overleg heeft verzocht, direct verzoeken om de vorming van een panel.

• 4 Al deze verzoeken om consultaties worden ter kennis van het DSB en de desbetreffende raden en commissies gebracht door het Lid dat om consultaties verzoekt. Een verzoek om consultaties wordt schriftelijk ingediend met opgave van de redenen voor het verzoek, met inbegrip van een omschrijving van de maatregelen in kwestie en een vermelding van de rechtsgronden voor de klacht.

• 5 In de loop van de consultaties in overeenstemming met de bepalingen van een vermelde overeenkomst dienen de Leden, alvorens hun toevlucht te nemen tot verdere stappen ingevolge dit Memorandum van Overeenstemming, te trachten een bevredigende regeling te treffen voor de kwestie.

• 6 De consultaties zijn geheim en laten de rechten van elk van beide Leden bij verdere stappen onverlet.

• 7 Indien de consultaties niet binnen zestig dagen na het verzoek om consultaties tot beslechting van het geschil hebben geleid, kan de klager verzoeken om de vorming van een panel. De klager kan binnen de termijn van zestig dagen verzoeken om de vorming van een panel indien consulterende partijen gezamenlijk van oordeel zijn dat consultaties niet tot beslechting van het geschil hebben geleid.

• 8 In spoedeisende gevallen, met inbegrip van gevallen waarin het aan bederf onderhevige goederen betreft, gaan de Leden binnen een termijn van ten hoogste tien dagen na de datum van ontvangst van het verzoek consultaties aan. Indien de consultaties niet binnen een termijn van twintig dagen na de datum van ontvangst van het verzoek tot beslechting van het geschil hebben geleid, kan de klager verzoeken om de vorming van een panel.

• 9 In spoedeisende gevallen, met inbegrip van gevallen waarin het aan bederf onderhevige goederen betreft, stellen de partijen bij het geschil, panels en de Beroepsinstantie alles in het werk om de procedure zo veel mogelijk te bespoedigen.

• 10 Tijdens de consultaties dienen de Leden bijzondere aandacht te schenken aan de specifieke problemen en belangen van Leden die ontwikkelingsland zijn.

• 11 Wanneer een ander Lid dan de consulterende Leden van oordeel is dat het een wezenlijk handelsbelang heeft bij de consultaties dat wordt gehouden ingevolge artikel XXII, eerste lid, van de GATT-Overeenkomst van 1994, artikel XXII, eerste lid, van de GATS-Overeenkomst of de overeenkomstige bepalingen van andere vermelde overeenkomsten, 391

  kan dat Lid de consulterende Leden en het DSB binnen tien dagen na het uitgaan van het verzoek om consultaties ingevolge bedoeld artikel, in kennis stellen van zijn wens zich in de consultaties te mengen. Dat Lid wordt bij de consultaties betrokken, mits het Lid waaraan het verzoek om consultaties werd gericht, ermee instemt dat het beroep op wezenlijke belangen gegrond is. In dat geval stellen zij het DSB daarvan in kennis. Indien het verzoek zich in de consultaties te mogen mengen niet wordt aanvaard, staat het het verzoekende Lid vrij te vragen om consultaties ingevolge artikel XXII, eerste lid, of XXIII, eerste lid, van de GATT-Overeenkomst van 1994, artikel XXII, eerste lid, of XXIII, eerste lid, van de GATS-Overeenkomst of de overeenkomstige bepalingen van andere vermelde overeenkomsten.

Artikel 5. Goede diensten, conciliatie en bemiddeling

• 1 Goede diensten, conciliatie en bemiddeling zijn procedures waartoe vrijwillig wordt overgegaan indien de partijen bij het geschil zulks overeenkomen.

• 2 Handelingen verband houdende met goede diensten, conciliatie en bemiddeling, en met name de standpunten die de partijen bij het geschil innemen, zijn vertrouwelijk en doen geen afbreuk aan de rechten van elk van beide partijen bij verdere stappen ingevolge deze procedures.

• 3 Om goede diensten, conciliatie en bemiddeling kan te allen tijde door een partij bij een geschil worden verzocht. Zij kunnen te allen tijde aanvangen en te allen tijde worden beëindigd. Zodra de procedures voor goede diensten, conciliatie en bemiddeling zijn beëindigd, kan de klager overgaan tot een verzoek om de vorming van een panel.

• 4 Wanneer binnen zestig dagen na de ontvangst van een verzoek om overleg een aanvang wordt gemaakt met goede diensten, conciliatie of bemiddeling, moet de klager een termijn van zestig dagen na de datum van ontvangst van van het verzoek om overleg toestaan alvorens om de vorming van een panel te verzoeken. De klager kan binnen de termijn van zestig dagen om de vorming van een panel verzoeken indien de partijen bij het geschil van oordeel zijn dat de goede diensten, conciliatie of bemiddeling niet tot beslechting van het geschil hebben geleid.

• 5 Indien de partijen bij het geschil zulks overeenkomen, kunnen de procedures voor goede diensten, conciliatie of bemiddeling worden voortgezet terwijl de panelprocedure wordt gevoerd.

• 6 De Directeur-Generaal kan, handelend uit hoofde van zijn functie, goede diensten, conciliatie of bemiddeling aanbieden teneinde de Leden te helpen een geschil te beslechten.

Artikel 6. Vorming van panels

• 1 Indien de klager hierom verzoekt, wordt uiterlijk op de eerstvolgende bijeenkomst van het DSB na de bijeenkomst waarop het verzoek voor het eerst als punt op de agenda van het DSB is geplaatst, een panel gevormd, tenzij het DSB bij consensus besluit geen panel te vormen392.

• 2 Het verzoek om de vorming van een panel wordt schriftelijk gedaan. Dit geeft aan of overleg werd gepleegd, noemt de specifieke maatregelen in kwestie en geeft een korte uiteenzetting van de rechtsgrond van de klacht, waarin het probleem voldoende duidelijk wordt geschetst. Ingeval de verzoeker verlangt dat een panel wordt gevormd dat een andere taakomschrijving heeft dan de standaard-taakomschrijving, wordt de voorgestelde tekst van de bijzondere taakomschrijving in het schriftelijke verzoek opgenomen.

Artikel 7. Taakomschrijving van de panels

• 1 Panels hebben de volgende taakomschrijving, tenzij de partijen bij het geschil binnen twintig dagen na de vorming van het panel anders overeenkomen:

  „In het licht van de desbetreffende bepalingen in [naam van de door de partijen bij het geschil aangehaalde vermelde overeenkomst(en)] de door [naam van de partij] in document ... aan het DSB voorgelegde zaak te bestuderen en tot de conclusies te komen die het DSB zullen helpen bij het doen van de aanbevelingen of uitspraken als bedoeld in die overeenkomst(en).”

• 2 De panels buigen zich over de desbetreffende bepalingen in de door de partijen bij het geschil aangehaalde of vermelde overeenkomst(en).

• 3 Bij de vorming van een panel kan het DSB de Voorzitter machtigen de taakomschrijving van het panel op te stellen in overleg met de partijen bij het geschil, zulks met inachtneming van de bepalingen van het eerste lid. De aldus opgestelde taakomschrijving wordt aan alle Leden toegezonden. Indien een andere dan de standaard-taakomschrijving wordt overeengekomen, kan elk Lid elk daarop betrekking hebbend punt voorleggen aan het DSB.

Artikel 8. Samenstelling van de panels

• 1 De panels worden samengesteld uit zeer bekwame regeringsfunctionarissen en/of anderen, onder wie personen die zitting hebben gehad in een panel of een zaak aan een panel hebben voorgelegd, die zijn opgetreden als vertegenwoordiger van een Lid van de WTO of van een partij bij de GATT-Overeenkomst van 1947 dan wel als vertegenwoordiger in een raad of commissie van een vermelde overeenkomst of een overeenkomst die daaraan voorafging, of bij het Secretariaat, die het internationale handelsrecht of -beleid hebben gedoceerd of daarover hebben gepubliceerd, of die zich als hoger ambtenaar van een Lid met het handelsbeleid hebben beziggehouden.

• 2 Panelleden dienen zodanig te worden geselecteerd dat de onafhankelijkheid van de leden, een voldoende gevarieerde achtergrond en een breed spectrum aan ervaring gewaarborgd zijn.

• 3 Staatsburgers van Leden waarvan de regeringen393 hetzij partij bij het geschil, hetzij derden zoals gedefinieerd in artikel 10, tweede lid, zijn, mogen geen zitting nemen in het panel dat met het geschil is belast, tenzij de partijen bij het geschil anders overeenkomen.

• 4 Ten behoeve van de selectie van panelleden houdt het Secretariaat een groslijst bij van regeringsfunctionarissen en anderen die de in het eerste lid genoemde kwalificaties bezitten, waaruit in voorkomend geval de panelleden worden gekozen. De lijst omvat de lijst van anderen dan regeringsfunctionarissen die werd opgesteld op 30 november 1984 (BISD 31S/9), alsook andere lijsten en groslijsten die ingevolge de vermelde overeenkomsten zijn opgesteld, en bevat de namen van de personen die bij de inwerkingtreding van de WTO-Overeenkomst op die lijsten en groslijsten zijn vermeld. Leden kunnen regelmatig namen van regeringsfunctionarissen en anderen voordragen voor opneming in de groslijst, met opgave van relevante gegevens over hun kennis van de internationale handel en van de sectoren of het onderwerp van de vermelde overeenkomsten, en deze namen worden aan de lijst toegevoegd na goedkeuring door het DSB. De lijst geeft voor iedere persoon op de lijst specifieke terreinen van ervaring of deskundigheid aan ter zake van de sectoren of het onderwerp van de vermelde overeenkomsten.

• 5 De panels bestaan uit drie panelleden, tenzij de partijen bij het geschil binnen tien dagen na de vorming van het panel instemmen met een panel bestaande uit vijf panelleden. De Leden worden onmiddellijk van de samenstelling van het panel in kennis gesteld.

• 6 Het Secretariaat draagt kandidaten voor benoeming in het panel voor aan de partijen bij het geschil. De partijen bij het geschil verzetten zich niet tegen deze voordrachten, behoudens dwingende redenen.

• 7 Indien binnen twintig dagen na de vorming van een panel geen overeenstemming omtrent de panelleden bestaat, bepaalt de Directeur-generaal, op verzoek van één van beide partijen, in overleg met de Voorzitter van het DSB en de voorzitter van de desbetreffende raad of commissie, de samenstelling van het panel door de panelleden te benoemen die de Directeur-Generaal het meest geschikt acht, overeenkomstig de desbetreffende bijzondere of aanvullende regels of procedures van de vermelde overeenkomst(en) waarop het geschil betrekking heeft, na de partijen bij het geschil te hebben geraadpleegd. De Voorzitter van het DSB stelt de Leden uiterlijk tien dagen na de datum waarop de Voorzitter een daartoe strekkend verzoek heeft ontvangen in kennis van de samenstelling van het aldus gevormde panel.

• 8 De Leden verplichten zich ertoe, in principe, hun functionarissen toe te staan als panellid op te treden.

• 9 Panelleden handelen op persoonlijke titel en niet als regeringsvertegenwoordiger, noch als vertegenwoordiger van een organisatie. Regeringen mogen hun derhalve geen instructies geven, noch trachten hen persoonlijk te beïnvloeden met betrekking tot aan een panel voorgelegde kwesties.

• 10 Wanneer het een geschil betreft tussen een Lid dat ontwikkelingsland is en een Lid dat ontwikkeld land is, omvat het panel, indien het Lid dat ontwikkelingsland is hierom verzoekt, ten minste één panellid uit een Lid dat een ontwikkelingsland is.

• 11 Onkosten van panelleden, met inbegrip van reis- en verblijfkosten, worden vergoed uit de begroting van de WTO in overeenstemming met de door de Algemene Raad aan te nemen criteria, op basis van aanbevelingen van de Commissie voor Begroting, Financiën en Administratie.

Artikel 9. Procedures ingeval er meer dan één klager is

• 1 Wanneer meer dan één Lid verzoekt om de vorming van een panel met betrekking tot dezelfde kwestie, kan één panel worden gevormd om deze klachten te bestuderen, rekening houdend met de rechten van alle betrokken Leden. Wanneer zulks enigszins mogelijk is, dient één panel te worden gevormd om deze klachten te bestuderen.

• 2 Dit ene panel organiseert zijn onderzoek en legt zijn conclusies aan het DSB voor op zodanige wijze, dat geen afbreuk wordt gedaan aan de rechten die de partijen bij het geschil zouden hebben indien de klachten door afzonderlijke panels zouden zijn onderzocht. Indien één van de partijen bij het geschil hierom verzoekt, legt het panel afzonderlijke rapporten betreffende het geschil voor. De door elk van de klagers ingediende schriftelijke stukken worden aan de andere klagers ter beschikking gesteld en elke klager heeft het recht aanwezig te zijn wanneer één van de andere klagers zijn standpunt voor het panel uiteenzet.

• 3 Indien meer dan één panel wordt gevormd om de klachten met betrekking tot dezelfde zaak te onderzoeken, treden zoveel mogelijk dezelfde personen als panellid op in elk van de afzonderlijke panels en wordt het tijdschema voor de panelprocedure in die geschillen geharmoniseerd.

Artikel 10. Derden

• 1 Met de belangen van de partijen bij een geschil en met die van andere Leden van een vermelde overeenkomst waarop het geschil betrekking heeft, wordt gedurende de panelprocedure ten volle rekening gehouden.

• 2 Een Lid dat een wezenlijk belang heeft bij een aan een panel voorgelegde kwestie en dit belang aan het DSB kenbaar heeft gemaakt, (hierna in dit Memorandum van Overeenstemming te noemen „een derde”) wordt in de gelegenheid gesteld om door het panel te worden gehoord en bij het panel schriftelijke stukken in te dienen. Deze stukken worden ook aan de partijen bij het geschil verstrekt en dienen in het rapport van het panel tot uitdrukking te komen.

• 3 Derden ontvangen de stukken van de partijen bij het geschil bestemd voor de eerste bijeenkomst van het panel.

• 4 Indien een derde van mening is dat een maatregel die reeds het voorwerp van een panelprocedure is, de voordelen die hem ingevolge een vermelde overeenkomst toekomen, tenietdoet of uitholt, kan dat Lid zijn toevlucht nemen tot de normale procedures voor geschillenbeslechting ingevolge dit Memorandum van Overeenstemming. Dat geschil wordt, voor zover zulks mogelijk is, aan het oorspronkelijke panel voorgelegd.

Artikel 11. Taken van de panels

De panels hebben tot taak het DSB bij te staan in de uitoefening van zijn verantwoordelijkheden ingevolge dit Memorandum van Overeenstemming en de vermelde overeenkomsten. Het panel dient derhalve de voorgelegde kwestie aan een objectieve beoordeling te onderwerpen, met inbegrip van een objectieve beoordeling van de feiten van de zaak en de toepasbaarheid van en de verenigbaarheid met de desbetreffende vermelde overeenkomsten, en tot de conclusies te komen die het DSB zullen helpen bij het doen van de aanbevelingen of de uitspraken als bedoeld in de vermelde overeenkomsten. De panels dienen regelmatig overleg te plegen met de partijen bij het geschil en hun voldoende gelegenheid te bieden om tot een wederzijds bevredigende oplossing te komen.

Artikel 12. Werkwijze van het panel

• 1 De panels volgen de in Aanhangsel 3 opgenomen werkwijze, tenzij het panel na overleg met de partijen bij het geschil anders besluit.

• 2 De werkwijze van het panel dient voldoende flexibiliteit te bieden om rapporten van hoge kwaliteit te kunnen waarborgen zonder de panelprocedure onnodig te vertragen.

• 3 Na overleg met de partijen bij het geschil stellen de panelleden zo spoedig mogelijk, en wanneer zulks haalbaar is binnen een week nadat de samenstelling en taakomschrijving van het panel zijn overeengekomen, het tijdschema voor de panelprocedure vast, rekening houdend met de bepalingen van artikel 4, negende lid, indien van toepassing.

• 4 Bij de vaststelling van het tijdschema voor de panelprocedure biedt het panel de partijen bij het geschil voldoende tijd om hun in te dienen stukken op te stellen.

• 5 De panels dienen exacte termijnen voor de indiening van schriftelijke stukken vast te stellen en de partijen dienen deze termijnen in acht te nemen.

• 6 Elke partij bij het geschil dient zijn schriftelijke stukken in bij het Secretariaat, dat deze onmiddellijk doet toekomen aan het panel en de andere partij(en) bij het geschil. De klager dient zijn eerste stuk in voordat de verweerder zijn eerste stuk indient, tenzij het panel bij de vaststelling van het in het derde lid bedoelde tijdschema en na overleg met de partijen bij het geschil besluit dat de partijen hun eerste stukken gelijktijdig moeten indienen. Wanneer er afspraken zijn betreffende het na elkaar indienen van de eerste stukken, stelt het panel een vaste termijn vast voor de ontvangst van het stuk van de verweerder. Eventuele latere schriftelijke stukken worden gelijktijdig ingediend.

• 7 Wanneer de partijen bij het geding niet tot een wederzijds bevredigende oplossing hebben kunnen komen, legt het panel zijn conclusies voor in de vorm van een schriftelijk rapport aan het DSB. In dergelijke gevallen worden in het rapport van een panel de resultaten van het feitenonderzoek, de toepasbaarheid van de desbetreffende bepalingen alsmede de beweegredenen die aan de conclusies en aanbevelingen van het panel ten grondslag liggen, vermeld. Wanneer de kwestie tussen de partijen bij het geding wordt geregeld, blijft het rapport van het panel beperkt tot een korte beschrijving van de zaak en een vermelding van het feit dat een oplossing werd bereikt.

• 8 Teneinde de procedures efficiënter te doen verlopen, is de termijn waarbinnen het panel zijn onderzoek verricht, vanaf het tijdstip waarop de samenstelling en de taakomschrijving van het panel zijn overeengekomen tot het tijdstip waarop het eindrapport aan de partijen bij het geschil wordt verstrekt, in beginsel niet langer dan zes maanden. In spoedeisende gevallen, met inbegrip van gevallen waarin het aan bederf onderhevige goederen betreft, streeft het panel ernaar zijn rapport binnen drie maanden aan de partijen bij het geschil te verstrekken.

• 9 Wanneer het panel van oordeel is dat het zijn rapport niet binnen zes maanden kan verstrekken, of binnen drie maanden in spoedeisende gevallen, stelt het het DSB schriftelijk in kennis van de redenen voor de vertraging, te zamen met een schatting van de termijn waarbinnen het zijn rapport zal uitbrengen. De termijn van de vorming van het panel tot de toezending van het rapport aan de Leden dient in geen geval langer te zijn dan negen maanden.

• 10 In het kader van overleg met betrekking tot een maatregel genomen door een Lid dat ontwikkelingsland is, kunnen de partijen overeenkomen de in artikel 4, zevende en achtste lid, vastgelegde termijnen te verlengen. Indien, nadat de desbetreffende termijn is verstreken, de overleg voerende partijen niet kunnen overeenkomen dat het overleg is afgerond, besluit de Voorzitter van het DSB, na overleg met de partijen, of de desbetreffende termijn wordt verlengd en, zo ja, voor hoe lang. Bovendien gunt het panel in een onderzoek betreffende een klacht tegen een Lid dat ontwikkelingsland is, het Lid dat ontwikkelingsland is voldoende tijd om zijn argumentatie voor te bereiden en in te dienen. Handelen ingevolge dit lid laat de bepalingen van artikel 20, eerste lid, en artikel 21, vierde lid, onverlet.

• 11 Wanneer één of meer partijen ontwikkelingslanden zijn, wordt in het rapport van het panel uitdrukkelijk vermeld in welke vorm rekening is gehouden met de desbetreffende bepalingen inzake gedifferentieerde en gunstigere behandeling voor Leden die ontwikkelingslanden zijn die deel uitmaken van de vermelde overeenkomsten die in de loop van de procedures voor geschillenbeslechting door het Lid dat ontwikkelingsland is naar voren zijn gebracht.

• 12 Het panel kan zijn werkzaamheden te allen tijde op verzoek van de klager opschorten voor een tijdvak van ten hoogste twaalf maanden. In geval van opschorting worden de in het achtste en negende lid van dit artikel, artikel 20, eerste lid, en artikel 21, vierde lid, genoemde termijnen verlengd met de hoeveelheid tijd gedurende welke de werkzaamheden werden opgeschort. Indien de werkzaamheden van het panel gedurende meer dan twaalf maanden zijn opgeschort, vervalt de bevoegdheid tot vorming van het panel.

Artikel 13. Recht om inlichtingen in te winnen

• 1 Elk panel heeft het recht inlichtingen en technisch advies in te winnen bij een persoon of instelling die het daartoe geschikt acht. Alvorens bedoelde inlichtingen of advies in te winnen bij een persoon of instelling binnen de rechtsmacht van een Lid, stelt het panel de autoriteiten van dat Lid hiervan in kennis. Een Lid geeft onmiddellijk en volledig gevolg aan een verzoek van een panel om de inlichtingen die het panel noodzakelijk en passend acht. Vertrouwelijke inlichtingen die zijn verstrekt, worden niet openbaar gemaakt zonder de formele toestemming van de persoon, instelling of autoriteiten van het Lid die de inlichtingen verstrekt c.q. verstrekken.

• 2 Panels kunnen inlichtingen inwinnen uit elke daarvoor in aanmerking komende bron en kunnen deskundigen raadplegen teneinde hun mening over bepaalde aspecten van de kwestie te horen. Ten aanzien van een feitenkwestie betreffende een wetenschappelijk of technisch vraagstuk dat door een partij bij het geschil naar voren is gebracht, kan een panel een schriftelijk advies inwinnen bij een groep van deskundigen. Regels voor de instelling van zo'n groep en de werkwijze daarvan zijn uiteengezet in Aanhangsel 4.

Artikel 14. Geheimhouding

• 1 De beraadslagingen van panels zijn geheim.

• 2 De rapporten van panels worden opgesteld buiten tegenwoordigheid van de partijen bij het geschil, daarbij de verstrekte inlichtingen en de afgelegde verklaringen in aanmerking nemend.

• 3 In het rapport van het panel tot uitdrukking gebrachte meningen van afzonderlijke panelleden zijn anoniem.

Artikel 15. Tussentijdse beoordeling

• 1 Na de bestudering van de verweerschriften en de pleidooien legt het panel de beschrijvende delen (betreffende feiten en argumenten) van zijn concept-rapport voor aan de partijen. Binnen een door het panel vastgestelde termijn dienen de partijen schriftelijk commentaar in.

• 2 Na de termijn voor de ontvangst van het commentaar van de partijen brengt het panel een interimrapport uit aan de partijen, dat zowel de beschrijvende delen als de bevindingen en conclusies van het panel bevat. Binnen een door het panel vastgestelde termijn kan een partij het panel schriftelijk verzoeken bepaalde aspecten van het interimrapport opnieuw te bezien alvorens het eindrapport toe te zenden aan de Leden. Op verzoek van een partij belegt het panel nog een bijeenkomst met de partijen betreffende de in het schriftelijke commentaar genoemde aangelegenheden. Indien binnen de termijn voor het indienen van commentaar van geen enkele partij commentaar wordt ontvangen, wordt het interimrapport als eindrapport beschouwd en wordt het onmiddellijk toegezonden aan de Leden.

• 3 De bevindingen van het eindrapport omvatten een bespreking van de naar aanleiding van de tussentijdse beoordeling aangevoerde argumenten. De tussentijdse beoordeling vindt plaats binnen de in artikel 12, achtste lid, genoemde termijn.

Artikel 16. Aanneming van rapporten van panels

• 1 Teneinde de Leden van het DSB voldoende tijd te bieden om rapporten van panels te bestuderen, worden de rapporten niet eerder dan twintig dagen nadat zij aan de Leden zijn toegezonden, door het DSB behandeld met het oog op aanneming.

• 2 Leden die bezwaren hebben tegen een rapport van het panel dienen ten minste tien dagen vóór de bijeenkomst van het DSB waarop over het rapport van het panel zal worden behandeld, schriftelijk hun bezwaren toe te lichten met het oog op rondzending.

• 3 De partijen bij het geschil hebben het recht ten volle deel te nemen aan de behandeling van het rapport van het panel door het DSB, en hun standpunten worden volledig opgetekend.

• 4 Binnen zestig dagen nadat een rapport van een panel aan de Leden is toegezonden, wordt het rapport aangenomen op een bijeenkomst van het DSB394, tenzij één van de partijen bij het geschil het DSB formeel kennisgeeft van haar beslissing beroep in te stellen, of het DSB bij consensus besluit het rapport niet aan te nemen. Indien een partij kennisgeving heeft gedaan van haar beslissing beroep in te stellen, wordt het rapport van het panel eerst na afloop van het beroep in behandeling genomen met het oog op aanneming door het DSB. Deze aannemingsprocedure doet geen afbreuk aan het recht van de Leden om hun standpunten ten aanzien van een rapport van een panel kenbaar te maken. Indien een partij kennisgeving heeft gedaan van haar beslissing beroep in te stellen, wordt het rapport van het panel eerst na afloop van het beroep in behandeling genomen met het oog op aanneming door het DSB. Deze aannemingsprocedure doet geen afbreuk aan het recht van de Leden om hun standpunten ten aanzien van een rapport van een panel kenbaar te maken.

Artikel 17. Beroep

Vaste Beroepsinstantie

• 1 Door het DSB wordt een vaste Beroepsinstantie ingesteld. De Beroepsinstantie neemt kennis van beroepen betreffende aan een panel voorgelegde zaken. De Beroepsinstantie bestaat uit zeven personen, van wie er drie bij elke zaak fungeren. De personen die in de Beroepsinstantie zitting hebben, rouleren. Dit rouleersysteem wordt vastgesteld in het reglement van orde van de Beroepsinstantie.

• 2 Het DSB benoemt personen die zitting nemen in de Beroepsinstantie voor een termijn van vier jaar; iedere persoon kan eenmaal worden herbenoemd. De termijn van drie van de zeven personen die onmiddellijk na de inwerkingtreding van de WTO-Overeenkomst worden benoemd, eindigt echter na twee jaar, hetgeen door loting wordt bepaald. Vacatures worden opgevuld zodra zij ontstaan. Een persoon die wordt benoemd ter vervanging van een persoon wiens ambtstermijn nog niet is geëindigd, fungeert voor het resterende gedeelte van de ambtstermijn van zijn of haar voorganger.

• 3 De Beroepsinstantie wordt samengesteld uit gezaghebbende personen, met aantoonbare ervaring op het gebied van het recht, de internationale handel en het onderwerp van de vermelde overeenkomsten in het algemeen. Zij mogen geen banden hebben met enige regering. De leden van de Beroepsinstantie dienen in grote lijnen representatief te zijn voor de Leden van de WTO. Allen die zitting hebben in de Beroepsinstantie dienen te allen tijde en op korte termijn beschikbaar te zijn en dienen zich op de hoogte te houden van de activiteiten ter zake van de geschillenbeslechting en andere hiermee samenhangende activiteiten van de WTO. Zij mogen niet deelnemen aan de behandeling van geschillen die direct of indirect zouden kunnen leiden tot een belangenconflict.

• 4 Beroep tegen een rapport van een panel kan slechts worden ingesteld door partijen bij het geschil en niet door derden. Derden die overeenkomstig artikel 10, tweede lid, aan het DSB kenbaar hebben gemaakt dat zij een wezenlijk belang bij de zaak hebben, kunnen schriftelijke stukken indienen en in de gelegenheid worden gesteld door de Beroepsinstantie te worden gehoord.

• 5 De procedure duurt in principe niet langer dan zestig dagen, te rekenen vanaf de datum waarop een partij bij het geschil formeel kennis geeft van haar beslissing beroep in te stellen tot aan de datum waarop de Beroepsinstantie haar rapport rondzendt. Bij de vaststelling van haar tijdschema houdt de Beroepsinstantie rekening met de bepalingen van artikel 4, negende lid, indien van toepassing. Wanneer de Beroepsinstantie van oordeel is dat zij haar rapport niet binnen zestig dagen kan verstrekken, stelt zij het DSB schriftelijk in kennis van de redenen voor de vertraging, te zamen met een schatting van de termijn waarbinnen zij haar rapport zal voorleggen. De procedure mag in geen geval langer duren dan negentig dagen.

• 6 Een beroep dient zich te beperken tot rechtskwesties die in het rapport van het panel aan de orde kwamen en tot de door het panel gegeven juridische interpretaties.

• 7 De Beroepsinstantie dient te kunnen beschikken over passende administratieve en juridische ondersteuning indien zij deze nodig heeft.

• 8 Onkosten van personen die zitting hebben in de Beroepsinstantie, met inbegrip van reis- en verblijfkosten, worden vergoed uit de begroting van de WTO in overeenstemming met de door de Algemene Raad aan te nemen criteria, op basis van aanbevelingen van de Commissie voor Begroting, Financiën en Administratie.

Beroepsprocedure

• 9 In overleg met de Voorzitter van het DSB en de Directeur-generaal wordt door de Beroepsinstantie een reglement van orde opgesteld, dat ter kennisgeving wordt toegezonden aan de Leden.

• 10 De handelingen van de Beroepsinstantie zijn geheim. De rapporten van de Beroepsinstantie worden opgesteld buiten tegenwoordigheid van de partijen bij het geschil, daarbij de verstrekte inlichtingen en de afgelegde verklaringen in aanmerking nemend.

• 11 In het rapport van de Beroepsinstantie tot uitdrukking gebrachte meningen van afzonderlijke personen die zitting hebben in de Beroepsinstantie zijn anoniem.

• 12 Gedurende de beroepsprocedure behandelt de Beroepsinstantie alle in overeenstemming met het zesde lid aan de orde gestelde kwesties.

• 13 De Beroepsinstantie kan de juridische bevindingen en conclusies van het panel bevestigen, wijzigen of vernietigen.

  Aanneming van rapporten van de Beroepsinstantie

• 14 Een rapport van de Beroepsinstantie wordt door het DSB aangenomen en door de partijen bij het geschil onvoorwaardelijk aanvaard, tenzij het DSB binnen dertig dagen nadat het rapport aan de Leden395 is toegezonden, bij consensus besluit het rapport van de Beroepsinstantie niet aan te nemen. Deze aannemingsprocedure doet geen afbreuk aan het recht van de Leden om hun standpunten ten aanzien van een rapport van de Beroepsinstantie kenbaar te maken.

Artikel 18. Contacten met het panel of de Beroepsinstantie

• 1 Contacten van een partij met het panel of de Beroepsinstantie betreffende kwesties die bij het panel of de Beroepsinstantie in behandeling zijn, zijn niet toegestaan.

• 2 Bij het panel of de Beroepsinstantie ingediende schriftelijke stukken worden vertrouwelijk behandeld, maar worden aan de partijen bij het geschil ter beschikking gesteld. Geen enkele bepaling van dit Memorandum van Overeenstemming belet een partij bij het geschil zijn eigen standpunt openbaar te maken. Informatie die door een ander Lid aan het panel of de Beroepsinstantie is verstrekt en die door dat Lid als vertrouwelijk is aangemerkt, wordt door de Leden vertrouwelijk behandeld. Een partij bij het geschil geeft tevens, op verzoek van een Lid, een niet-vertrouwelijke samenvatting van de in haar schriftelijke stukken vervatte informatie die openbaar gemaakt zou kunnen worden.

Artikel 19. Aanbevelingen van een panel of de Beroepsinstantie

• 1 Wanneer een panel of de Beroepsinstantie van oordeel is dat een maatregel onverenigbaar is met een vermelde overeenkomst, beveelt het panel of de Beroepsinstantie het betrokken Lid396 aan deze maatregel met die overeenkomst 397 in overeenstemming te brengen. Naast zijn c.q. haar aanbevelingen kan het panel of de Beroepsinstantie voorstellen op welke wijze het betrokken Lid uitvoering zou kunnen geven aan de aanbevelingen.

• 2 Overeenkomstig artikel 3, tweede lid, kunnen het panel en de Beroepsinstantie in hun bevindingen en aanbevelingen de in de vermelde overeenkomsten bepaalde rechten en verplichtingen niet aanvullen of beperken.

Artikel 20. Termijn voor beslissingen van het DSB

Tenzij de partijen bij het geschil anders zijn overeengekomen, is de termijn vanaf de vorming van het panel door het DSB tot de datum waarop het DSB het rapport van het panel of de Beroepsinstantie behandelt met het oog op aanneming, in beginsel ten hoogste negen maanden indien geen beroep tegen het rapport wordt ingesteld en ten hoogste twaalf maanden indien beroep wordt ingesteld. Indien hetzij het panel, hetzij de Beroepsinstantie ingevolge artikel 12, negende lid, of artikel 17, vijfde lid, heeft besloten de termijn voor het verstrekken van zijn c.q. haar rapport te verlengen, wordt de genomen extra tijd bij de hierboven genoemde termijnen geteld.

Artikel 21. Toezicht op de tenuitvoerlegging van aanbevelingen en uitspraken

• 1 Onmiddellijke naleving van de aanbevelingen of uitspraken van het DSB is van wezenlijk belang om te zorgen voor een effectieve beslechting van geschillen ten voordele van alle Leden.

• 2 Bijzondere aandacht dient te worden besteed aan kwesties die de belangen raken van Leden die ontwikkelingsland zijn met betrekking tot maatregelen die zijn onderworpen aan geschillenbeslechting.

• 3 Op een bijeenkomst van het DSB, gehouden binnen dertig dagen398 na de aanneming van het rapport van een panel of de Beroepsinstantie, stelt het betrokken Lid het DSB in kennis van zijn voornemens ten aanzien van de tenuitvoerlegging van de aanbevelingen en uitspraken van het DSB. Indien het onmogelijk is de aanbevelingen en uitspraken onmiddellijk na te leven, krijgt het betrokken Lid een redelijke termijn om zulks alsnog te doen. Een redelijke termijn is:

  • a. de door het betrokken Lid voorgestelde termijn, mits die termijn door het DSB wordt goedgekeurd; of, bij gebreke van goedkeuring,

  • b. een binnen vijfenveertig dagen na de aanneming van de aanbevelingen of uitspraken door de partijen bij het geschil onderling overeengekomen termijn; of bij gebreke van overeenstemming hierover,

  • c. een binnen negentig dagen na de aanneming van de aanbevelingen of uitspraken bij bindende arbitrage vastgestelde termijn.399 Bij deze arbitrage dient als richtsnoer voor de arbiter400 te gelden dat de redelijke termijn voor tenuitvoerlegging van de aanbevelingen van een panel of de Beroepsinstantie niet langer mag zijn dan vijftien maanden na de aanneming van een rapport van een panel of de Beroepsinstantie. De termijn kan evenwel korter of langer zijn, afhankelijk van de omstandigheden.

• 4 Behalve indien het panel of de Beroepsinstantie ingevolge artikel 12, negende lid, of artikel 17, vijfde lid, de termijn voor het verstrekken van zijn c.q. haar rapport heeft verlengd, mag het tijdvak vanaf de datum van de vorming van het panel door het DSB tot aan de vaststelling van de redelijke termijn niet langer zijn dan vijftien maanden, tenzij de partijen bij het geschil anders overeenkomen. Wanneer ofwel het panel ofwel de Beroepsinstantie heeft besloten de termijn voor het verstrekken van zijn c.q. haar rapport te verlengen, wordt de genomen extra tijd bij de termijn van vijftien maanden geteld, met dien verstande dat de termijn in totaal niet langer mag zijn dan achttien maanden, tenzij de partijen bij het geschil overeenkomen dat er sprake is van buitengewone omstandigheden.

• 5 Wanneer er onenigheid heerst omtrent het bestaan van maatregelen genomen ter naleving van de aanbevelingen of uitspraken, of omtrent de verenigbaarheid van die maatregelen met een vermelde overeenkomst, dient over dat geschil te wordt beslist door middel van gebruikmaking van deze procedures voor geschillenbeslechting, met inbegrip van, waar mogelijk, een beroep op het oorspronkelijke panel. Het panel geeft zijn beslissing binnen negentig dagen nadat de kwestie aan het panel is voorgelegd. Wanneer het panel van oordeel is dat het zijn rapport niet binnen deze termijn kan verstrekken, stelt het het DSB schriftelijk in kennis van de redenen voor de vertraging, te zamen met een schatting van de termijn waarbinnen het zijn rapport zal voorleggen.

• 6 Het DSB ziet toe op de tenuitvoerlegging van de aangenomen aanbevelingen of uitspraken. De kwestie van de tenuitvoerlegging van aanbevelingen of uitspraken kan, te allen tijde na aanneming daarvan, door elk Lid aan het DSB worden voorgelegd. Tenzij het DSB anders beslist, wordt de kwestie van de tenuitvoerlegging van aanbevelingen of uitspraken op de agenda van de bijeenkomst van het DSB geplaatst, zulks na zes maanden na de vaststelling van de redelijke termijn ingevolge het derde lid, en blijft deze op de agenda van het DSB staan totdat de kwestie is opgelost. Uiterlijk tien dagen voor elke zodanige bijeenkomst van het DSB verstrekt het betrokken Lid het DSB een schriftelijk overzicht van de vorderingen die het heeft gemaakt in de tenuitvoerlegging van de aanbevelingen of uitspraken.

• 7 Indien het een kwestie betreft die is voorgelegd door een Lid dat ontwikkelingsland is, gaat het DSB na welke verdere stappen het zou kunnen ondernemen die, gelet op de omstandigheden, passend zijn.

• 8 Indien het een zaak betreft die aanhangig is gemaakt door een Lid dat ontwikkelingsland is, houdt het DSB, wanneer het nagaat welke passende stappen zouden kunnen worden ondernomen, niet alleen rekening met het handelsverkeer dat wordt getroffen door de maatregelen waartegen een klacht is ingediend, maar ook met de gevolgen daarvan voor de economie van de betrokken Leden die ontwikkelingsland zijn.

Artikel 22. Compensatie en schorsing van concessies

• 1 Compensatie en schorsing van concessies of andere verplichtingen zijn tijdelijke maatregelen die kunnen worden gehanteerd ingeval de aanbevelingen of uitspraken niet binnen een redelijke termijn ten uitvoer worden gelegd. Aan compensatie of aan schorsing van concessies of andere verplichtingen wordt evenwel niet de voorkeur gegeven boven volledige tenuitvoerlegging van een aanbeveling om een maatregel in overeenstemming te brengen met de vermelde overeenkomsten. Compensatie geschiedt vrijwillig en dient, indien toegestaan, in overeenstemming te zijn met de vermelde overeenkomsten.

• 2 Indien het betrokken Lid de met een vermelde overeenkomst onverenigbaar geachte maatregel daarmee niet in overeenstemming brengt, of anderszins de aanbevelingen en uitspraken niet naleeft binnen de ingevolge artikel 21, derde lid, vastgestelde termijn, gaat dat Lid, indien hierom wordt verzocht, uiterlijk bij het verstrijken van de redelijke termijn onderhandelingen aan met een partij die een beroep heeft gedaan op de procedures voor geschillenbeslechting, teneinde tot een wederzijds aanvaardbare compensatie te komen. Indien binnen twintig dagen na het verstrijken van de redelijke termijn geen bevredigende compensatie is overeengekomen, kan een partij die een beroep op de procedures voor geschillenbeslechting heeft gedaan, verzoeken om een machtiging van het DSB tot schorsing van de toepassing van concessies of andere verplichtingen ingevolge de vermelde overeenkomsten ten aanzien van het betrokken Lid.

• 3 Wanneer hij nagaat welke concessies of andere verplichtingen kunnen worden geschorst, dient de klager de volgende beginselen en procedures toe te passen:

  • a. als algemeen beginsel geldt dat de klager eerst dient te trachten concessies of andere verplichtingen te schorsen ten aanzien van dezelfde sector(en) als die waarin het panel of de Beroepsinstantie een schending of andere wijze van tenietdoen of uitholling heeft vastgesteld;

  • b. indien de klager van mening is dat het niet mogelijk of doeltreffend is concessies of andere verplichtingen te schorsen ten aanzien van dezelfde sectoren, kan hij trachten concessies of andere verplichtingen te schorsen in andere sectoren die onder dezelfde overeenkomst vallen;

  • c. indien de klager van mening is dat het niet mogelijk of doeltreffend is concessies of andere verplichtingen te schorsen ten aanzien van andere sectoren die onder dezelfde overeenkomst vallen, en dat de omstandigheden ernstig genoeg zijn, kan hij trachten concessies of andere verplichtingen te schorsen in het kader van een andere vermelde overeenkomst;

  • d. bij de toepassing van bovenstaande beginselen houdt de klager rekening met:

    • i. de handel, in de sector of in het kader van de overeenkomst, waarin het panel of de Beroepsinstantie een schending of andere wijze van tenietdoen of uitholling heeft vastgesteld, en het belang van die handel voor de klager;

    • ii. de meer algemene economische factoren die verband houden met de wijze van tenietdoen of uitholling en de meer algemene economische gevolgen van de schorsing van concessies of andere verplichtingen;

  • e. indien de klager besluit te verzoeken om machtiging tot schorsing van concessies of andere verplichtingen overeenkomstig letter b of c hierboven, vermeldt hij de redenen daarvoor in zijn verzoek. Het verzoek wordt gelijktijdig ingediend bij het DSB en bij de desbetreffende raden, alsmede, in geval van een verzoek ingevolge letter b, bij de desbetreffende sectororganen;

  • f. voor de toepassing van dit lid wordt onder „sector” verstaan:

    • i. met betrekking tot goederen, alle goederen;

    • ii. met betrekking tot diensten, een hoofdsector als genoemd in de huidige „Service Sectoral Classification List” waarin deze sectoren zijn genoemd;401

    • iii. met betrekking tot de handelsaspecten van de intellectuele eigendom, elk van de categorieën rechten van de intellectuele eigendom vallend onder Titel 1 of Titel 2 of Titel 3 of Titel 4 of Titel 5 of Titel 6 of Titel 7 van Deel II of de verplichtingen ingevolge Deel III of Deel IV van de Overeenkomst inzake de handelsaspecten van de intellectuele eigendom (TRIPS-Overeenkomst);

  • g. voor de toepassing van dit lid wordt onder „overeenkomst” verstaan:

    • i. met betrekking tot goederen, de in Bijlage 1A bij de WTO-Overeenkomst genoemde overeenkomsten, in hun totaliteit, alsmede de Plurilaterale Handelsovereenkomsten, voor zover de partijen bij het geschil partij bij die overeenkomsten zijn;

    • ii. met betrekking tot diensten, de GATS-Overeenkomst;

    • iii. met betrekking tot de intellectuele eigendom, de TRIPS-Overeenkomst.

• 4 De mate van de door het DSB gemachtigde schorsing van concessies of andere verplichtingen dient gelijkwaardig te zijn met de mate van het tenietdoen of de uitholling.

• 5 Het Orgaan voor Geschillenbeslechting verleent geen machtiging voor schorsing van concessies of andere verplichtingen indien een vermelde overeenkomst deze schorsing verbiedt.

• 6 Wanneer de in het tweede lid beschreven omstandigheden zich voordoen, verleent het DSB, op verzoek, machtiging tot schorsing van concessies of andere verplichtingen binnen dertig dagen na het verstrijken van de redelijke termijn, tenzij het DSB bij consensus besluit het verzoek te verwerpen. Indien het betrokken Lid echter bezwaar maakt tegen de voorgestelde mate van schorsing of beweert dat de in het derde lid genoemde beginselen en procedures niet zijn nageleefd wanneer een klager ingevolge het derde lid, letter b of c, om machtiging tot schorsing van concessies of andere verplichtingen heeft verzocht, wordt de kwestie aan arbitrage onderworpen. De arbitrage geschiedt door het oorspronkelijke panel, indien de leden beschikbaar zijn, of door een door de Directeur-Generaal benoemde arbiter2, en dient binnen zestig dagen na het verstrijken van de redelijke termijn te zijn voltooid. Concessies of andere verplichtingen mogen niet worden geschorst zolang de arbitrage gaande is.2, en dient binnen zestig dagen na het verstrijken van de redelijke termijn te zijn voltooid. Concessies of andere verplichtingen mogen niet worden geschorst zolang de arbitrage gaande is.

• 7 De ingevolge het zesde lid optredende arbiter402 onderzoekt niet de aard van de te schorsen concessies of andere verplichtingen, maar stelt vast of de mate van deze schorsing gelijkwaardig is met de mate van het tenietdoen of de uitholling. De arbiter kan ook vaststellen of de voorgestelde schorsing van concessies of andere verplichtingen krachtens de vermelde overeenkomst is toegestaan. Indien de aan arbitrage onderworpen kwestie echter mede betrekking heeft op een bewering dat de in het derde lid hierboven genoemde beginselen en procedures niet zijn nageleefd, onderzoekt de arbiter deze bewering. Ingeval de arbiter vaststelt dat die beginselen en procedures niet zijn nageleefd, past de klager deze toe in overeenstemming met het derde lid. De partijen aanvaarden de beslissing van de arbiter als onherroepelijk en de betrokken partijen verlangen geen tweede arbitrage. Het DSB wordt onmiddellijk van de beslissing van de arbiter in kennis gesteld en verleent op verzoek machtiging tot schorsing van concessies of andere verplichtingen indien het verzoek verenigbaar is met de beslissing van de arbiter, tenzij het DSB bij consensus besluit het verzoek te verwerpen.

• 8 De schorsing van concessies of andere verplichtingen is van tijdelijke aard en wordt slechts toegepast totdat de maatregel die in strijd met een vermelde overeenkomst wordt geacht, is opgeheven, of het Lid dat aanbevelingen of uitspraken moet uitvoeren, een oplossing biedt voor het tenietdoen of de uitholling van voordelen, of een wederzijds bevredigende oplossing wordt bereikt. In overeenstemming met artikel 21, zesde lid, blijft het DSB toezien op de tenuitvoerlegging van aangenomen aanbevelingen of uitspraken, met inbegrip van de gevallen waarin compensatie is geboden of concessies of andere verplichtingen zijn geschorst, maar de aanbevelingen om een maatregel met de vermelde overeenkomsten in overeenstemming te brengen, niet zijn uitgevoerd.

• 9 De bepalingen voor geschillenbeslechting van de vermelde overeenkomsten kunnen worden ingeroepen ten aanzien van maatregelen die de inachtneming daarvan raken, genomen door regionale of plaatselijke overheden of autoriteiten op het grondgebied van een Lid. Wanneer het DSB heeft bepaald dat een bepaling van een vermelde overeenkomst niet in acht is genomen, neemt het verantwoordelijke Lid de redelijke maatregelen die mogelijk zijn om de inachtneming daarvan te waarborgen. De bepalingen van de vermelde overeenkomsten en dit Memorandum van Overeenstemming betreffende compensatie en schorsing van concessies of andere verplichtingen zijn van toepassing in gevallen waarin het niet mogelijk is gebleken bedoelde inachtneming te bewerkstelligen.403.

Artikel 23. Versterking van het multilaterale stelsel

• 1 Wanneer Leden goedmaking verlangen wegens een schending van verplichtingen of een andere wijze van tenietdoen of uitholling van voordelen ingevolge de vermelde overeenkomsten of wegens een belemmering voor de verwezenlijking van een doelstelling van de vermelde overeenkomsten, doen zij een beroep op de regels en procedures van dit Memorandum van Overeenstemming en nemen zij deze in acht.

• 2 In dergelijke gevallen zullen de Leden:

  • a. niet overgaan tot de vaststelling dat er een schending heeft plaatsgevonden, dat voordelen zijn tenietgedaan of uitgehold, of dat de verwezenlijking van een doelstelling van de vermelde overeenkomsten is belemmerd, behalve door middel van geschillenbeslechting in overeenstemming met de regels en procedures van dit Memorandum van Overeenstemming, en zullen zij tot een vaststelling komen die verenigbaar is met de conclusies als vervat in het door het DSB goedgekeurde rapport van het panel of de Beroepsinstantie dan wel een ingevolge dit Memorandum van Overeenstemming gegeven arbitrale uitspraak;

  • b. de in artikel 21 uiteengezette procedures volgen om de redelijke termijn te bepalen waarbinnen het betrokken Lid de aanbevelingen en uitspraken moet uitvoeren; en

  • c. de in artikel 22 uiteengezette procedures volgen om de mate van de schorsing van concessies of andere verplichtingen te bepalen en de machtiging van het DSB te verkrijgen in overeenstemming met die procedures, alvorens de concessies of andere verplichtingen ingevolge de vermelde overeenkomsten te schorsen in reactie op het verzuim van het betrokken Lid om de aanbevelingen en uitspraken uit te voeren binnen die redelijke termijn.

Artikel 24. Bijzondere procedures betreffende Leden die minstontwikkeld land zijn

• 1 In alle stadia van de vaststelling van de oorzaken van een geschil en van procedures voor geschillenbeslechting waarbij een Lid betrokken is dat minstontwikkeld land is, wordt bijzondere aandacht geschonken aan de speciale situatie van Leden die minstontwikkeld land zijn. In dit opzicht handelen de Leden met de nodige terughoudendheid bij het aanhangig maken van kwesties overeenkomstig deze procedures waarbij een Lid betrokken is dat minstontwikkeld land is. Indien wordt vastgesteld dat het tenietdoen of de uitholling het gevolg is van een maatregel die is genomen door een Lid dat minstontwikkeld land is, handelen klagers met de nodige terughoudendheid wanneer zij compensatie verlangen of verzoeken om een machtiging tot schorsing van de toepassing van concessies of andere verplichtingen ingevolge deze procedures.

• 2 In gevallen van geschillenbeslechting waarbij een Lid betrokken is dat minstontwikkeld land is, waarvoor in de loop van het overleg geen bevredigende oplossing wordt gevonden, biedt de Directeur-generaal of de Voorzitter van het DSB op verzoek van een Lid dat minstontwikkeld land is, hun goede diensten, conciliatie of bemiddeling aan teneinde de partijen te helpen hun geschil te beslechten, alvorens een verzoek om de vorming van de panel wordt gedaan. De Directeur-Generaal of de Voorzitter kan bij het verlenen van bovenbedoelde hulp elke door hen geschikt geachte bron raadplegen.

Artikel 25. Arbitrage

• 1 Snelle arbitrage binnen de WTO als alternatieve wijze van geschillenbeslechting kan de oplossing vergemakkelijken van bepaalde geschillen die betrekking hebben op door beide partijen duidelijk omschreven kwesties.

• 2 Tenzij in dit Memorandum van Overeenstemming anders is bepaald, geschiedt het overgaan tot arbitrage slechts na onderlinge overeenstemming tussen de partijen, die de te volgen procedures overeenkomen. Overeenstemming inzake arbitrage wordt ruim voor de feitelijke aanvang van de arbitrageprocedure ter kennis van alle Leden gebracht.

• 3 Andere Leden kunnen slechts partij bij een arbitrageprocedure worden met instemming van de partijen die zijn overeengekomen over te gaan tot arbitrage. De partijen bij de procedure stemmen ermede in de arbitrale uitspraak na te leven. Arbitrale uitspraken worden ter kennis gebracht van het DSB en de raad of de commissie van de desbetreffende overeenkomst waarbij een Lid een daarop betrekkende kwestie aanhangig kan maken.

• 4 De artikelen 21 en 22 van dit Memorandum van Overeenstemming zijn van overeenkomstige toepassing op arbitrale uitspraken.

Artikel 26. Gevallen waarin geen sprake is van schending

• 1

  Klachten van het soort als omschreven in artikel XXIII:1b. van de GATT-Overeenkomst van 1994

  Wanneer de bepalingen van artikel XXIII:1b. van de GATT-Overeenkomst van 1994 op een vermelde overeenkomst van toepassing zijn, kan een panel of de Beroepsinstantie slechts uitspraken of aanbevelingen doen indien een partij bij het geschil van mening is dat een voordeel dat haar al dan niet rechtstreeks toekomt ingevolge de desbetreffende vermelde overeenkomst wordt tenietgedaan of uitgehold, dan wel dat de verwezenlijking van een doelstelling van die overeenkomst wordt belemmerd ten gevolge van de toepassing van een maatregel door een Lid, ongeacht of deze maatregel in strijd is met de bepalingen van die overeenkomst. Wanneer en in zoverre die partij van mening is en een panel of de Beroepsinstantie vaststelt dat het een maatregel betreft die niet in strijd is met de bepalingen van een vermelde overeenkomst waarop de bepalingen van artikel XXIII:1b. van de GATT-Overeenkomst van 1994 van toepassing zijn, zijn de in dit Memorandum van Overeenstemming omschreven procedures van toepassing, met inachtneming van het volgende:

  • a. de klager legt een uitvoerig rechtvaardigingsstuk over ter onderbouwing van een klacht met betrekking tot een maatregel die niet in strijd is met de desbetreffende vermelde overeenkomst;

  • b. indien is vastgesteld dat een maatregel voordelen ingevolge de desbetreffende vermelde overeenkomst tenietdoet of uitholt, of de verwezenlijking van doelstellingen van die overeenkomst belemmert, zonder deze te schenden, bestaat er geen verplichting tot intrekking van de maatregel. In dergelijke gevallen beveelt het panel of de Beroepsinstantie het betrokken Lid echter aan een wederzijds aanvaardbare regeling te treffen;

  • c. niettegenstaande de bepalingen van artikel 21, kan de in artikel 21, derde lid, geregelde arbitrage op verzoek van één van beide partijen mede een vaststelling omvatten van de mate waarin voordelen zijn tenietgedaan of uitgehold, en kunnen wegen en middelen worden voorgesteld om tot een wederzijds bevredigende regeling te komen; bedoelde voorstellen zijn niet bindend voor de partijen;

  • d. niettegenstaande de bepalingen van artikel 22, eerste lid, kan compensatie deel uitmaken van een wederzijds bevredigende regeling als definitieve beslechting van het geschil.

• 2

  Klachten van het soort als omschreven in artikel XXIII:1c. van de GATT-Overeenkomst van 1994

  Wanneer de bepalingen van artikel XXIII:1c. van de GATT-Overeenkomst van 1994 op een vermelde overeenkomst van toepassing zijn, kan een panel of de Beroepsinstantie slechts uitspraken of aanbevelingen doen indien een partij van mening is dat een voordeel dat haar al dan niet rechtstreeks toekomt ingevolge de desbetreffende vermelde overeenkomst wordt tenietgedaan of uitgehold, dan wel dat de verwezenlijking van een doelstelling van die overeenkomst wordt belemmerd ten gevolge van het bestaan van omstandigheden anders dan die waarop de bepalingen van artikel XXIII:1a. en b. van de GATT-Overeenkomst van 1994 van toepassing zijn. Wanneer en in zoverre die partij van mening is en een panel vaststelt dat de kwestie onder dit lid valt, zijn de in deze Overeenstemming omschreven procedures slechts van toepassing tot en met het tijdstip in de procedure waarop het rapport van het panel aan de Leden is toegezonden. De regels en procedures voor geschillenbeslechting vervat in het besluit van 12 april 1989 (BISD 36S/61) zijn van toepassing op de behandeling met het oog op aanneming, en het toezicht op en de tenuitvoerlegging van aanbevelingen en uitspraken. Het volgende is ook van toepassing:

  • a. de klager legt een uitvoerig rechtvaardigingsstuk over ter onderbouwing van elk argument dat wordt aangevoerd met betrekking tot kwesties die onder dit lid vallen;

  • b. indien een panel in een zaak betreffende kwesties die onder dit lid vallen van oordeel is dat de zaak mede voor geschillenbeslechting in aanmerking komende kwesties bevat anders dan die welke onder dit lid vallen, brengt het panel een rapport uit aan het DSB waarin het ingaat op die kwesties alsmede een afzonderlijk rapport inzake kwesties die onder dit lid vallen.

Artikel 27. Taken van het Secretariaat

• 1 Het Secretariaat heeft tot taak de panels bij te staan, met name betreffende de juridische, historische en procedurele aspecten van de behandelde kwesties, en secretariële en technische ondersteuning te bieden.

• 2 Wanneer het Secretariaat Leden op hun verzoek bijstaat bij de beslechting van geschillen, kan er behoefte bestaan aan het bieden van extra juridisch advies en bijstand bij de beslechting van geschillen aan Leden die ontwikkelingsland zijn. Hiertoe stelt het Secretariaat een gekwalificeerd jurist van de WTO-diensten voor technische samenwerking ter beschikking van elk Lid dat ontwikkelingsland is dat hierom verzoekt. Deze jurist staat het Lid dat ontwikkelingsland is bij op een wijze die de constante onpartijdigheid van het Secretariaat waarborgt.

• 3 Het Secretariaat verzorgt voor belangstellende Leden speciale opleidingscursussen aangaande deze procedures en handelwijzen inzake geschillenbeslechting, teneinde deskundigen van de Leden in staat te stellen ter zake beter op de hoogte zijn.

AANHANGSEL 1. OVEREENKOMSTEN DIE ONDER DIT MEMORANDUM VAN OVEREENSTEMMING VALLEN

• A. Overeenkomst tot oprichting van de Wereldhandelsorganisatie

• B. Multilaterale Handelsovereenkomsten

  Bijlage 1A: Overeenkomsten inzake de handel in goederen

  Bijlage 1B: Algemene Overeenkomst inzake de handel in diensten

  Bijlage 1C: Overeenkomst inzake de handelsaspecten van de intellectuele eigendom

  Bijlage 2: Memorandum van Overeenstemming inzake regels en procedures betreffende de beslechting van geschillen

• C. Plurilaterale Handelsovereenkomsten

  Bijlage 4: Overeenkomst inzake de handel in burgerluchtvaartuigen

  Overeenkomst inzake overheidsopdrachten

  Internationale Overeenkomst inzake zuivel

  Internationale Overeenkomst inzake rundvlees

  De toepasbaarheid van dit Memorandum van Overeenstemming op de Plurilaterale Handelsovereenkomsten is afhankelijk van de aanneming van een besluit van de partijen bij elke overeenkomst waarin de voorwaarden voor de toepassing van het Memorandum van Overeenstemming op die afzonderlijke overeenkomst worden bepaald, met inbegrip van bijzondere of aanvullende regels of procedures voor opneming in Bijlage 2, zoals bekendgemaakt aan het DSB.

AANHANGSEL 2. BIJZONDERE OF AANVULLENDE REGELS EN PROCEDURES VERVAT IN DE VERMELDE OVEREENKOMSTEN

Overeenkomst	Regels en procedures
Overeenkomst inzake de toepassing van sanitaire en fytosanitaire maatregelen	11.2
Overeenkomst inzake textiel- en kledingprodukten	2.14, 2.21, 4.4, 5.2, 5.4, 5.6, 6.9, 6.10, 6.11, 8.1 t/m 8.12
Overeenkomst inzake technische handelsbelemmeringen	14.2 t/m 14.4, Bijlage 2
Overeenkomst inzake de toepassing van artikel VI van de GATT-Overeenkomst van 1994	17.4 t/m 17.7
Overeenkomst inzake de toepassing van artikel VII van de GATT-Overeenkomst van 1994	19.3 t/m 19.5, Bijlage II, 2(f), 3, 9, 21
Overeenkomst inzake subsidies en compenserende maatregelen	4.2 t/m 4.12, 6.6, 7.2 t/m 7.10, 8.5, voetnoot 33, 24.4, 27.7, Bijlage V
Algemene Overeenkomst inzake de handel in diensten	XXII:3, XXIII:3
Bijlage inzake financiële diensten	4
Bijlage inzake luchtvervoerdiensten	4
Besluit inzake bepaalde procedures voor geschillenbeslechting voor de Algemene Overeenkomst inzake de handel in diensten	1 t/m 5

De lijst van regels en procedures in dit Aanhangsel bevat bepalingen waarvan slechts een gedeelte in deze context relevant is.

Alle bijzondere of aanvullende regels of procedures in de Plurilaterale Handelsovereenkomsten, zoals vastgesteld door de bevoegde organen van elke overeenkomst en bekendgemaakt aan het DSB.

AANHANGSEL 3. WERKWIJZE

• 1. In zijn procedure neemt het panel de desbetreffende bepalingen van het Memorandum van Overeenstemming inzake regels en procedures betreffende de beslechting van geschillen in acht. Daarnaast is het onderstaande van toepassing.

• 2. Het panel komt achter gesloten deuren bijeen. De partijen bij het geschil of andere belanghebbenden zijn slechts op de bijeenkomsten aanwezig wanneer zij door het panel zijn uitgenodigd om voor het panel te verschijnen.

• 3. De beraadslagingen van het panel zijn geheim en de bij het panel ingediende stukken worden vertrouwelijk behandeld. Geen enkele bepaling van dit Memorandum van Overeenstemming belet een partij bij het geschil zijn eigen standpunt openbaar te maken. Informatie die door een ander Lid aan het panel is verstrekt en die door dat Lid als vertrouwelijk is aangemerkt, wordt door de Leden vertrouwelijk behandeld. Wanneer een partij bij het geschil een vertrouwelijke versie van zijn schriftelijke stukken bij het panel indient, geeft zij tevens, op verzoek van een Lid, een niet-vertrouwelijke samenvatting van de in haar schriftelijke stukken vervatte informatie die openbaar gemaakt zou kunnen worden.

• 4. Vóór de eerste inhoudelijke bijeenkomst van het panel met de partijen doen beide partijen het panel schriftelijke stukken toekomen, waarin zij de feiten die aan de zaak ten grondslag liggen en hun argumenten uiteenzetten.

• 5. Op de eerste inhoudelijke bijeenkomst met de partijen verzoekt het panel de partij die de klacht heeft ingediend om haar zaak te bepleiten. Vervolgens, op dezelfde bijeenkomst, wordt de partij waartegen de klacht is ingediend verzocht haar standpunt uiteen te zetten.

• 6. Alle derden die het DSB te kennen hebben gegeven dat zij een belang bij het geschil hebben, worden schriftelijk uitgenodigd om hun standpunt uiteen te zetten tijdens een zitting van de eerste inhoudelijke bijeenkomst van het panel, die hiervoor wordt gereserveerd. Alle derden kunnen deze zitting in haar geheel bijwonen.

• 7. Formeel verweer wordt gevoerd op de tweede inhoudelijke bijeenkomst van het panel. De partij waartegen de klacht is gericht, heeft het recht als eerste te pleiten, gevolgd door de klager. Beide partijen dienen vóór aanvang van de bijeenkomst bij het panel verweerschriften in.

• 8. Het panel kan te allen tijde vragen aan de partijen stellen en hen om een toelichting vragen, hetzij in de loop van een bijeenkomst, hetzij schriftelijk.

• 9. De partijen bij het geschil en alle derden die zijn uitgenodigd om hun standpunt uiteen te zetten overeenkomstig artikel 10 stellen het panel een schriftelijke versie van hun mondelinge uiteenzetting ter beschikking.

• 10. In het belang van volledige openheid vinden de in de artikelen 5 tot en met 9 bedoelde pleidooien, verweren en uiteenzettingen plaats in aanwezigheid van de partijen. Bovendien worden de schriftelijke stukken van elke partij, met inbegrip van eventueel commentaar op het beschrijvende gedeelte van het rapport en antwoorden op vragen van het panel, ter beschikking gesteld aan de andere partij(en).

• 11. Eventuele aanvullende procedures speciaal voor het panel.

• 12. Voorgesteld tijdschema voor de werkzaamheden van het panel:

  a.	Ontvangst van de eerste schriftelijke stukken van de partijen:	—
  	1. klager:	—	3-6 weken
  	2. verweerder:	—	2-3 weken
  b.	Datum, tijdstip en plaats van de eerste inhoudelijke bijeenkomst met de partijen; zitting voor derden:	—	1-2 weken
  c.	Ontvangst van verweerschriften van de partijen:	—	2-3 weken
  d.	Datum, tijdstip en plaats van de tweede inhoudelijke bijeenkomst met de partijen:	—	1-2 weken
  e.	Voorlegging van beschrijvend gedeelte van het rapport aan de partijen:	—	2-4 weken
  f.	Ontvangst van commentaar van de partijen op het beschrijvende gedeelte van het rapport:	—	2 weken
  g.	Voorlegging van het interimrapport, inclusief bevindingen en conclusies, aan de partijen:	—	2-4 weken
  h.	Termijn waarbinnen partij kan verzoeken om (een) gedeelte(n) van het rapport opnieuw te bezien:	—	1 week
  i.	Termijn waarbinnen het panel het rapport opnieuw beziet, met inbegrip van eventuele extra bijeenkomst met de partijen:	—	2 weken
  j.	Voorlegging van eindrapport aan de partijen bij het geschil:	—	2 weken
  k.	Toezending van eindrapport aan de Leden:	—	3 weken

  Bovenstaand tijdschema kan worden gewijzigd in verband met onvoorziene ontwikkelingen. Indien nodig worden extra bijeenkomsten met de partijen gepland.

AANHANGSEL 4. WERKGROEPEN VAN DESKUNDIGEN

De volgende regels en procedures zijn van toepassing op overeenkomstig artikel 13, tweede lid, ingestelde werkgroepen van deskundigen.

• 1. Werkgroepen van deskundigen ressorteren onder het panel. Het panel besluit over hun taken en bevoegdheden en de gedetailleerde werkwijze; de werkgroepen brengen verslag uit aan het panel.

• 2. Deelneming aan werkgroepen van deskundigen is voorbehouden aan personen die aanzien genieten en ervaring hebben op het desbetreffende vakgebied.

• 3. Staatsburgers van partijen bij het geschil kunnen geen zitting nemen in een werkgroep van deskundigen zonder de gezamenlijke instemming van de partijen bij het geschil, tenzij het panel in buitengewone omstandigheden van oordeel is dat niet op andere wijze kan worden voorzien in de behoefte aan gespecialiseerde wetenschappelijke deskundigheid. Regeringsfunctionarissen van partijen bij het geschil kunnen geen zitting nemen in een werkgroep van deskundigen. Leden van een werkgroep van deskundigen handelen op persoonlijke titel en niet als vertegenwoordigers van een regering of organisatie. Regeringen en organisaties mogen hun derhalve geen instructies geven met betrekking tot kwesties die aan een werkgroep van deskundigen zijn voorgelegd.

• 4. Werkgroepen van deskundigen kunnen elke door hen geschikt geachte bron raadplegen en daarbij informatie en technisch advies inwinnen. Alvorens informatie of technisch advies in te winnen bij een bron binnen de rechtsmacht van een Lid, stelt de werkgroep de regering van dat Lid daarvan in kennis. Een Lid geeft onmiddellijk en volledig gevolg aan een verzoek van een werkgroep om informatie die de werkgroep noodzakelijk en passend acht.

• 5. De partijen bij het geschil hebben toegang tot alle relevante informatie die aan de werkgroep van deskundigen is verstrekt, tenzij deze van vertrouwelijke aard is. Aan een werkgroep van deskundigen verstrekte vertrouwelijke informatie wordt niet vrijgegeven zonder de formele machtiging van de regering, organisatie of persoon die de informatie verstrekt. Wanneer een werkgroep van deskundigen om zodanige informatie heeft verzocht, maar aan de werkgroep geen machtiging is verleend om deze informatie vrij te geven, wordt een niet-vertrouwelijke samenvatting van de informatie verstrekt door de regering, organisatie of persoon die de informatie verschaft.

• 6. De werkgroep van deskundigen legt een ontwerp-rapport voor aan de partijen bij het geschil, teneinde hun commentaar te vernemen, waarmee de werkgroep, indien van toepassing, rekening houdt in haar eindrapport, dat ook aan de partijen bij het geschil wordt toegezonden wanneer het bij het panel wordt ingediend. Het eindrapport van de werkgroep van deskundigen geldt slechts als advies.

BIJLAGE 3. Regeling inzake toetsing van het handelsbeleid

De Leden komen het volgende overeen:

A. Doelstellingen

• i. Doel van de regeling inzake toetsing van het handelsbeleid (Trade Policy Review Mechanism – TPRM) is een betere naleving door alle Leden van de in de multilaterale handelsovereenkomsten en eventuele plurilaterale handelsovereenkomsten opgenomen regels, disciplines en verbintenissen, en derhalve een vlottere werking van het multilaterale handelsstelsel als gevolg van een grotere doorzichtigheid van en meer inzicht in het handelsbeleid en de handelspraktijken van de Leden. De toetsingsregeling maakt bijgevolg de geregelde gezamenlijke beoordeling en evaluatie mogelijk van alle handelspolitieken en -praktijken van de afzonderlijke Leden en de invloed ervan op de werking van het multilateraal handelsstelsel. Het is evenwel niet de bedoeling dat zij wordt aangewend als grondslag voor het doen naleven van bepaalde verplichtingen in het kader van de overeenkomsten of voor geschillenbeslechtingsprocedures dan wel voor het aan Leden opleggen van nieuwe beleidsmatige verplichtingen.

• ii. De beoordeling in het kader van de toetsingsregeling heeft, voor zover dat aangewezen is, plaats tegen de achtergrond van de meer algemene behoeften, beleidslijnen en doelstellingen van het betrokken Lid op economisch en ontwikkelingsgebied, evenals van de toestand in zijn buitenlandse omgeving. Oogmerk van de toetsingsregeling is evenwel het onderzoek van de invloed van het handelsbeleid en de handelspraktijken van een Lid op het multilateraal handelsstelsel.

B. Interne doorzichtigheid

De Leden erkennen met betrekking tot de besluitvorming van de regeringen op handelspolitiek gebied de intrinsieke waarde van interne doorzichtigheid voor zowel de economie van de Leden als het multilateraal handelsstelsel en komen overeen het tot stand brengen van grotere doorzichtigheid binnen hun eigen stelsels aan te moedigen en te bevorderen, terwijl zij inzien dat de interne doorzichtigheid op vrijwillige basis tot stand moet komen en dat daarbij rekening dient te worden gehouden met de wettelijke en politieke stelsels van ieder lid.

C. Toetsingsprocedures

• i. Voor het toetsingswerk met betrekking tot het handelsbeleid wordt hierbij het Orgaan voor toetsing van het handelsbeleid (Trade Policy Review Body – TPRB) ingesteld.

• ii. Het handelsbeleid en handelspraktijken van alle Leden worden periodiek getoetst. Voor het vaststellen van de frequentie van de toetsen wordt uitgegaan van de invloed van de afzonderlijke Leden op de werking van het multilateraal handelsstelsel, die wordt vastgesteld op grond van hun aandeel in de wereldhandel gedurende een recente representatieve periode. De aldus geïdentificeerde vier voornaamste handelsentiteiten (waarbij de Europese Gemeenschap als één entiteit wordt beschouwd) worden om de twee jaar getoetst. De daaropvolgende zestien worden om de vier jaar getoetst en de andere leden om de zes jaar met dien verstande dat voor de Leden die minstontwikkelde landen zijn, langere perioden kunnen worden vastgesteld. De toetsing van entiteiten met een gemeenschappelijk buitenlands beleid voor verschillende Leden dient alle op de handel betrekking hebbende componenten van het beleid met inbegrip van de relevante beleidslijnen en praktijken van de afzonderlijke leden te bestrijken. In exceptionele gevallen, wanneer in het handelsbeleid of de handelspraktijken van een Lid wijzigingen worden aangebracht welke een belangrijke impact op zijn handelspartners kunnen hebben, kan het betrokken Lid door het TPRB na raadpleging worden verzocht de eerstvolgende toetsing vroeger te laten plaatshebben.

• iii. Bij de besprekingen op de vergaderingen van het TPRB wordt uitgegaan van de onder punt A aangegeven doelstellingen. Deze besprekingen concentreren zich op het handelsbeleid en de handelspraktijken van het Lid welke in het kader van de toetsingsregeling worden beoordeeld.

• iv. Het TPRB stelt voor zijn toetsingswerkzaamheden een basisplan op. Het kan eveneens de verslagen met de meest recente gegevens van de Leden bespreken en er nota van nemen. Het TPRB stelt voor ieder jaar in overleg met de rechtstreeks betrokken Leden een toetsingsprogramma op. De voorzitter kan, in overleg met het Lid of de Leden van wie het beleid wordt getoetst, discussianten kiezen die, in hun persoonlijke hoedanigheid, de besprekingen binnen het TPRB inleiden.

• v. Het TPRB maakt voor zijn werkzaamheden gebruik van de volgende documentatie:

  • a. een volledig verslag, zoals bedoeld onder punt D, dat wordt ingediend door het Lid of de Leden van wie het beleid wordt getoetst;

  • b. een door het secretariaat op eigen verantwoordelijkheid op te stellen verslag gebaseerd op de informatie waarover het beschikt en de door het betrokken Lid of de betrokken Leden verstrekte informatie; het secretariaat dient het betrokken Lid of de betrokken Leden om toelichting met betrekking tot zijn of hun handelsbeleidslijnen en -praktijken te verzoeken.

• vi. De verslagen van het Lid van wie het beleid wordt getoetst, en van het secretariaat worden te zamen met de notulen van de desbetreffende vergadering van het TPRB onmiddellijk na de toetsing gepubliceerd.

• vii. Genoemde documenten worden ter beschikking gesteld van de Ministeriële Conferentie, die er nota van neemt.

D. Verslagen

Met het oog op een zo groot mogelijke doorzichtigheid brengt ieder lid geregeld verslag uit aan het TPRB. In de omstandige verslagen worden het handelsbeleid en de handelspraktijken van het betrokken Lid of de betrokken Leden beschreven volgens een overeengekomen model dat door het TPRB wordt vastgesteld. Voor dit model wordt voorlopig gebruik gemaakt van het ontwerp-model voor landenrapporten vastgesteld bij besluit van 19 juli 1989 (BISD 36S/406–409), dat zo nodig wordt gewijzigd om in de verslagen alle aspecten van het handelsbeleid te kunnen behandelen waarop de in bijlage 1 genoemde multilaterale handelsovereenkomsten en eventueel de plurilaterale handelsovereenkomsten betrekking hebben. Dit model kan door het TPRB in het licht van de ervaring worden herzien. In de tussen twee toetsingen verlopende periode dienen de leden beknopte verslagen in wanneer zij hun handelsbeleid in belangrijke mate wijzigen; de meest recente statistische gegevens worden jaarlijks in overeenstemming met het overeengekomen model ingediend. Er wordt speciale aandacht besteed aan de moeilijkheden welke bij het opstellen van de verslagen worden ondervonden door Leden die minstontwikkelde landen zijn. Het secretariaat stelt op verzoek technische bijstand ter beschikking van Leden die ontwikkelingslanden zijn en vooral van Leden die minstontwikkelde landen zijn. Er wordt gestreefd naar zoveel mogelijk coördinatie tussen de gegevens welke worden opgenomen in de verslagen en in de kennisgevingen welke op grond van bepalingen van de multilaterale handelsovereenkomsten en eventueel de plurilaterale handelsovereenkomsten worden gedaan.

E. Verband met de bepalingen betreffende de betalingsbalans van de GATT 1994 en de GATS

De Leden zijn zich ervan bewust dat het nodig is de werklast voor de regeringen, die op grond van de betalingsbalansbepalingen van de GATT 1994 of de GATS eveneens uitvoerig moeten kunnen worden geraadpleegd, zo klein mogelijk te houden. De voorzitter van het TPRB werkt met het oog daarop, in overleg met het betrokken Lid of de betrokken Leden en met de voorzitter van de Commissie Beperkingen ten behoeve van de betalingsbalans, administratieve regelingen uit voor het in overeenstemming brengen van de gewone frequentie van de toetsingen van het handelsbeleid met het tijdschema voor het overleg betreffende de betalingsbalans, zonder evenwel de toetsing van het handelsbeleid meer dan 12 maanden te verschuiven.

F. Beoordeling van de regeling

De werking van de TPRM wordt door het TPRB niet later dan vijf jaar na het in werking treden van de Overeenkomst tot oprichting van de WTO beoordeeld. De resultaten van de beoordeling worden aan de Ministeriële Conferentie voorgelegd. De TPRM kan vervolgens met tussenpozen vastgesteld door het TPRB of op verzoek van de Ministeriële Conferentie opnieuw worden beoordeeld.

G. Overzicht van de ontwikkelingen in de internationale handel

Het TPRB stelt eveneens een jaarlijks overzicht op van de ontwikkelingen in de internationale handel welke van invloed zijn op het multilaterale handelsstelsel. Daarvoor wordt gebruik gemaakt van een jaarverslag van de directeur-generaal waarin de belangrijkste activiteiten van de WTO en de voor het handelsstelsel significante beleidskwesties worden beschreven.

BIJLAGE 4. PLURILATERALE HANDELSOVEREENKOMSTEN

Overeenkomst inzake de handel in burgerluchtvaartuigen 404

De Overeenkomst inzake de handel in burgerluchtvaartuigen, gedaan te Genève op 12 april 1979 (BISD 265/162), zoals vervolgens gewijzigd, bijgewerkt of geamendeerd.

Slotakte waarin de resultaten van de multilaterale handelsbesprekingen in het kader van de Uruguay-Ronde zijn neergelegd

• 1. De vertegenwoordigers van de regeringen en van de Europese Gemeenschappen, leden van de Commissie inzake handelsbesprekingen, bijeengekomen ter afsluiting van de Uruguay-Ronde van de multilaterale handelsbesprekingen, komen overeen dat in de Overeenkomst tot oprichting van de Wereldhandelsorganisatie (hierna in deze Slotakte te noemen de „WTO-Overeenkomst”), de Ministeriële verklaringen en besluiten, en het Memorandum van Overeenstemming inzake verbintenissen betreffende financiële diensten in de hieraan gehechte bijlagen, de resultaten zijn neergelegd van hun onderhandelingen en dat deze een integrerend onderdeel van deze Slotakte vormen.

• 2. Door het ondertekenen van deze Slotakte komen de vertegenwoordigers overeen

  • a. als passend de WTO-Overeenkomst ter overweging voor te leggen aan hun onderscheiden bevoegde autoriteiten met het oog op de goedkeuring van deze Overeenkomst in overeenstemming met hun procedures; en

  • b. de Ministeriële verklaringen en besluiten aan te nemen.

• 3. De vertegenwoordigers zijn het eens over de wenselijkheid van aanvaarding van de WTO-Overeenkomst door alle deelnemers aan de multilaterale handelsbesprekingen in het kader van de Uruguay-Ronde (hierna te noemen de „deelnemers”) opdat deze in werking treedt op 1 januari 1995 of zo spoedig mogelijk daarna. Uiterlijk tegen het einde van 1994 zullen de Ministers bijeenkomen, in overeenstemming met de laatste paragraaf van de Ministeriële verklaring van Punta del Este, om te beslissen over de internationale toepassing van de resultaten, met inbegrip van de bepaling van het tijdstip van de vankrachtwording daarvan.

• 4. De vertegenwoordigers komen overeen dat de WTO-Overeenkomst uit hoofde van artikel XIV van deze Overeenkomst openstaat voor aanvaarding in haar geheel, door ondertekening of op andere wijze, door alle deelnemers. Op de aanvaarding en inwerkingtreding van een Plurilaterale Handelsovereenkomst, opgenomen in Bijlage 4 van de WTO-Overeenkomst, zijn de bepalingen van die Plurilaterale Handelsovereenkomst van toepassing.

• 5. Deelnemers die geen partij zijn bij de Algemene Overeenkomst betreffende Tarieven en Handel moeten eerst de onderhandelingen voor hun toetreding tot de Algemene Overeenkomst hebben afgerond en partij daarbij zijn geworden voordat zij de WTO-Overeenkomst kunnen aanvaarden. Voor deelnemers die op de datum van de Slotakte geen partij zijn bij de Algemene Overeenkomst, zijn de Lijsten niet definitief en worden deze daarna aangevuld met het oog op de toetreding tot de Algemene Overeenkomst en de aanvaarding van de WTO-Overeenkomst van deze deelnemers.

• 6. Deze Slotakte en de daaraan gehechte teksten worden nedergelegd bij de Directeur-Generaal van de Partijen bij de Algemene overeenkomst betreffende Tarieven en Handel, die elke deelnemer onverwijld een voor eensluidend gewaarmerkt afschrift daarvan verstrekt.

GEDAAN te Marrakesh, vijftien april negentienhonderdvierennegentig, in één exemplaar in de Engelse, de Franse en de Spaanse taal, zijnde elke tekst authentiek.

Besluit inzake maatregelen ten behoeve van de minstontwikkelde landen

De Ministers,

Zich bewust van de situatie van de minstontwikkelde landen en de noodzaak hun effectieve deelneming aan de wereldhandel te verzekeren, en bijkomende maatregelen ter verbetering van hun handelsperspectieven te nemen;

Zich bewust van de specifieke behoeften van de minstontwikkelde landen op het gebied van de markttoegang, waar een voortgezette preferentiële behandeling een essentieel middel ter verbetering van hun handelsperspectieven blijft;

Opnieuw bevestigend dat zij zich verbinden tot een volledige tenuitvoerlegging van de bepalingen betreffende de minstontwikkelde landen van lid 2, sub b., en van leden 6 en 8 van het Besluit van 28 november 1979 inzake een gedifferentieerde en gunstigere behandeling, wederkerigheid en een grotere deelneming voor de ontwikkelingslanden;

Gezien de verbintenis van de deelnemers zoals omschreven in afdeling B (vii) van Deel I van de Verklaring van Punta del Este;

• 1. Besluiten dat, voor zover dergelijke bepalingen nog niet werden opgenomen in de akten waarover in het kader van de Uruguay-Ronde werd onderhandeld en ongeacht hun goedkeuring van deze akten, de minstontwikkelde landen, voor de periode waarin zij tot die landencategorie behoren, afgezien van de naleving van de algemene regels van voornoemde akten, slechts tot het nakomen van verbintenissen en concessies gehouden zijn in de mate waarin deze verenigbaar zijn met hun eigen ontwikkeling, hun eigen financiële en commerciële behoeften, of hun administratieve en institutionele capaciteiten, en dat voor de minstontwikkelde landen met ingang van 15 april 1994 een bijkomende termijn van een jaar wordt ingelast voor het indienen van hun lijsten zoals bedoeld in artikel XI van de Overeenkomst tot oprichting van de Wereldhandelsorganisatie.

• 2. Komen overeen dat:

  • i. op de prompte tenuitvoerlegging van alle speciale en differentiële maatregelen ten behoeve van de minstontwikkelde landen, met inbegrip van die welke in het kader van de Uruguay-Ronde zijn genomen, wordt toegezien aan de hand van, inter alia, geregelde onderzoeken;

  • ii. voor zover het mogelijk is autonoom, bij voorbaat en op niet-gefaseerde wijze uitvoering kan worden gegeven aan meestbegunstigingsclausules ten aanzien van tarifaire en non-tarifaire maatregelen waarover in het kader van de Uruguay-Ronde met betrekking tot exportprodukten van minstontwikkelde landen overeenstemming is bereikt; de verdere verbetering van het SAP en andere regelingen wordt overwogen voor produkten welke van speciaal belang zijn voor de uitvoer van de minstontwikkelde landen;

  • iii. de in de diverse overeenkomsten en instrumenten opgenomen regels en in het kader van de Uruguay-Ronde vastgestelde overgangsbepalingen op een flexibele en tegemoetkomende wijze ten aanzien van de minstontwikkelde landen worden toegepast; de door de minstontwikkelde landen in de relevante Raden en Commissies aangevoerde speciale en gemotiveerde argumenten met het oog daarop welwillend in overweging worden genomen;

  • iv. bij de toepassing van invoerbeperkende maatregelen en andere maatregelen zoals bedoeld in artikel XXVII, lid 3, sub c., van GATT 1947 en de overeenkomstige bepaling van GATT 1994, speciaal rekening wordt gehouden met de exportbelangen van de minstontwikkelde landen;

  • v. de minstontwikkelde landen aanzienlijk meer technische bijstand wordt verleend voor de ontwikkeling, de uitbreiding en de diversificatie van hun produktie- en exportstructuren met inbegrip van die voor de dienstverlening, evenals voor de bevordering van de handel, zodat zij maximaal profijt kunnen trekken uit de geliberaliseerde toegang tot de markten.

• 3. Komen overeen dat zij hun aandacht gericht houden op de speciale behoeften van de minstontwikkelde landen en blijven streven naar de vaststelling van positieve maatregelen welke de uitbreiding van de handelsmogelijkheden ten behoeve van die landen vergemakkelijken.

Verklaring inzake de bijdrage van de wereldhandelsorganisatie om te komen tot een grotere samenhang in het mondiale economische beleid

1.

De ministers erkennen dat de mondialisering van de wereldeconomie heeft geleid tot een steeds verdergaande wisselwerking tussen het economisch beleid van de afzonderlijke landen, met inbegrip van een wisselwerking tussen de structurele, macro-economische, handels-, financiële en ontwikkelingsaspecten van het economisch beleid. De taak om dit beleid te harmoniseren berust primair bij de regeringen op nationaal niveau, maar de samenhang op internationale schaal is een belangrijke en waardevolle factor ter vergroting van de doeltreffendheid van het beleid op nationaal niveau. De in het kader van de Uruguay-Ronde tot stand gekomen overeenkomsten tonen aan dat alle deelnemende regeringen erkennen dat een liberaal handelsbeleid kan bijdragen tot een gezonde groei en ontwikkeling van hun eigen economie en de gehele wereldeconomie.

2.

Geslaagde samenwerking op een bepaald gebied van het economisch beleid draagt bij tot vooruitgang op andere gebieden. Grotere stabiliteit van de wisselkoersen, op basis van meer ordelijke economische en financiële voorwaarden, zou moeten bijdragen tot uitbreiding van de handel, duurzame groei en ontwikkeling en herstel van externe onevenwichtigheden. Er is ook behoefte aan een passende en tijdige stroom concessionele en niet-concessionele financiële middelen alsmede gelden voor investeringen naar de ontwikkelingslanden en aan meer inspanningen om de schuldenproblematiek aan te pakken, om te zorgen voor economische groei en ontwikkeling. Vrijmaking van het handelsverkeer vormt een steeds belangrijkere factor voor het welslagen van de aanpassingsprogramma's die veel landen uitvoeren, waarmee veelal aanzienlijke kosten zijn gemoeid die in de overgangsfase vaak zwaar op de samenleving drukken. In dit verband wijzen de ministers op de rol van de Wereldbank en het IMF bij het bieden van steun aan aanpassing aan de vrijmaking van het handelsverkeer, met inbegrip van steun aan netto voedsel importerende ontwikkelingslanden die op de korte termijn worden geconfronteerd met kosten ten gevolge van hervormingen van de handel in landbouwprodukten.

3.

Het positieve resultaat van de Uruguay-Ronde is een belangrijke bijdrage aan een meer samenhangend en aanvullend internationaal economisch beleid. De resultaten van de Uruguay-Ronde bieden ruimere toegang tot de markt in het voordeel van alle landen, alsmede een kader van versterkte multilaterale gedragsregels voor het handelsverkeer. Zij garanderen ook dat het handelsbeleid op een meer doorzichtige wijze wordt gevoerd, met een groter besef van de voordelen van een open handelsstelsel voor het binnenlandse concurrentievermogen. Het versterkte multilaterale handelsstelsel dat uit de Uruguay-Ronde voorkomt, leent zich ertoe een verbeterd forum voor liberalisering te bieden, bij te dragen tot doeltreffender toezicht en te zorgen voor een strikte naleving van de multilateraal overeengekomen regels en methoden. Deze verbeteringen betekenen dat het handelsbeleid in de toekomst een gewichtiger rol kan spelen in de totstandbrenging van samenhang in het mondiale economische beleid.

4.

De ministers erkennen echter dat moeilijkheden waarvan de oorzaak buiten het handelsterrein is gelegen, niet enkel met maatregelen op handelsgebied kunnen worden verholpen. Hiermee wordt het belang onderstreept van pogingen om andere elementen van het mondiale economische beleid te verbeteren ter aanvulling van de effectieve toepassing van de in het kader van de Uruguay-Ronde bereikte resultaten.

5.

De onderlinge verbanden tussen de verschillende aspecten van het economisch beleid vergen dat de internationale instellingen die verantwoordelijkheden op deze terreinen hebben, een samenhangend en wederzijds ondersteunend beleid voeren. De Wereldhandelsorganisatie dient derhalve te streven naar samenwerking met internationale organisaties die zijn belast met monetaire en financiële aangelegenheden, en deze tot ontwikkeling te brengen, waarbij het mandaat, de vereisten inzake vertrouwelijkheid en de noodzakelijke autonomie in besluitvormingsprocedures van elke instelling worden geëerbiedigd en het opleggen van eencross-conditionality -beding of extra voorwaarden aan regeringen wordt vermeden. De ministers verzoeken de Directeur-Generaal van de WTO te zamen met de Directeur van het Internationale Monetaire Fonds en de President van de Wereldbank te bezien wat de gevolgen zijn van de taken van de WTO voor de samenwerking met de Bretton Woods-instellingen en in welke vorm deze samenwerking zou kunnen geschieden, teneinde te komen tot een grotere samenhang in het mondiale economische beleid.cross-conditionality -beding of extra voorwaarden aan regeringen wordt vermeden. De ministers verzoeken de Directeur-Generaal van de WTO te zamen met de Directeur van het Internationale Monetaire Fonds en de President van de Wereldbank te bezien wat de gevolgen zijn van de taken van de WTO voor de samenwerking met de Bretton Woods-instellingen en in welke vorm deze samenwerking zou kunnen geschieden, teneinde te komen tot een grotere samenhang in het mondiale economische beleid.

Besluit inzake kennisgevingsprocedures

De Ministers besluiten aan te bevelen dat de Ministeriële Conferentie het onderstaande besluit inzake verbetering en onderzoek van kennisgevingsprocedures aanneemt.

De Leden,

Verlangende het verloop van kennisgevingsprocedures als bedoeld in de Overeenkomst tot oprichting van de Wereldhandelsorganisatie (hierna de „WTO-Overeenkomst” te noemen) te verbeteren en aldus bij te dragen tot de doorzichtigheid van het handelsbeleid van de Leden en tot de doeltreffendheid van daartoe vastgestelde toezichtregelingen;

Herinnerend aan de uit de WTO-Overeenkomst voortvloeiende verplichtingen tot bekendmaking en kennisgeving, met inbegrip van de verplichtingen krachtens specifieke toetredingsprotocollen, ontheffingen en andere overeenkomsten die de Leden hebben aanvaard,

Komen het volgende overeen:

I. Algemene verplichting tot kennisgeving

De Leden bevestigen hun verbintenis tot nakoming van de verplichtingen inzake bekenmaking en kennisgeving die voortvloeien uit de Multilaterale handelsovereenkomsten en, in voorkomend geval, de Plurilaterale handelsovereenkomsten.

De Leden herinneren aan hun verplichtingen die zijn vervat in het op 28 november 1979 aangenomen Memorandum van Overeenstemming betreffende kennisgeving, overleg, geschillenbeslechting en toezicht (BISD 26S/210). Met betrekking tot de verplichting die zij daarbij zijn aangegaan om zoveel mogelijk kennis te geven van de vaststelling van handelsmaatregelen die van invloed zijn op de werking van GATT 1994, met dien verstande dat deze kennisgeving op zichzelf geen beletsel vormt voor standpunten over de verenigbaarheid of het verband van deze maatregelen met de rechten en verplichtingen die voortvloeien uit de Multilaterale handelsovereenkomsten en, in voorkomend geval, de Plurilaterale handelsovereenkomsten, komen de Leden overeen, naargelang van het geval, uit te gaan van de in de bijlage opgenomen lijst van maatregelen. De Leden komen derhalve overeen dat bij invoering of wijziging van deze maatregelen moet worden voldaan aan de kennisgevingsvoorschriften van het Memorandum van Overeenstemming van 1979.

II. Centraal register van kennisgevingen

Er wordt een centraal register van kennisgevingen ingesteld onder de verantwoordelijkheid van het Secretariaat. Terwijl de Leden de bestaande kennisgevingsprocedures verder in acht nemen, ziet het Secretariaat erop toe dat in het centraal register gegevens uit de informatie die het betrokken Lid ten aanzien van de maatregel heeft verstrekt, worden genoteerd, ondermeer het doel van de maatregel, het betrokken handelsverkeer en het voorschrift op grond waarvan de kennisgeving wordt verricht. In het centraal register worden kennisgevingen per Lid en per verplichting geregistreerd, met onderlinge verwijzingen.

De dienst van het centraal register doet elk Lid ieder jaar mededeling van de gewone kennisgevingsverplichtingen die het betrokken Lid wordt geacht na te komen in de loop van het daaropvolgende jaar.

De dienst van het centraal register vestigt de aandacht van afzonderlijke Leden op de gewone kennisgevingsvoorschriften waaraan nog niet is voldaan.

In het centraal register opgenomen informatie met betrekking tot afzonderlijke kennisgevingen wordt op een daartoe strekkend verzoek verstrekt aan elk Lid dat recht heeft op het ontvangen van de betrokken kennisgeving.

III. Onderzoek van kennisgevingsverplichtingen en -procedures

De Raad voor de handel in goederen onderzoekt de kennisgevingsverplichtingen en -procedures uit hoofde van de Overeenkomsten die zijn opgenomen in bijlage 1 A bij de WTO-Overeenkomst. Dit onderzoek wordt uitgevoerd door een werkgroep waarvan alle Leden deel kunnen uitmaken. De groep wordt onmiddellijk na de datum van inwerkingtreding van de WTO-Overeenkomst opgericht.

De werkgroep wordt belast met de volgende opdrachten:

• – het uitvoeren van een grondig onderzoek met betrekking tot alle bestaande kennisgevingsverplichtingen van Leden die voortvloeien uit de Overeenkomsten in bijlage 1 A bij de WTO-Overeenkomst, om deze verplichtingen zoveel mogelijk te vereenvoudigen, te standardiseren en te groeperen, alsmede ervoor te zorgen dat deze verplichtingen beter worden nagekomen, waarbij rekening wordt gehouden met de als algemeen doel nagestreefde grotere doorzichtigheid van het handelsbeleid van de Leden en grotere doeltreffendheid van de daartoe vastgestelde toezichtregelingen, en tevens rekening wordt gehouden met het feit dat sommige ontwikkelingslanden die Lid zijn misschien moeten worden bijgestaan om hun kennisgevingsverplichtingen na te komen;

• – de Raad voor de handel in goederen uiterlijk twee jaar na de inwerkingtreding van de WTO-Overeenkomst aanbevelingen doen.

Bijlage INDICATIEVE LIJST 405 VAN MAATREGELEN WAARVOOR EEN KENNISGEVINGSVERPLICHTING GELDT

Douanerechten (met inbegrip van het niveau en de strekking van de consolidaties, de bepalingen inzake het SAP, de rechten die van toepassing zijn op leden van vrijhandelszones/douane-unies, andere preferenties)

Tariefcontingenten en aanvullende heffingen

Kwantitatieve beperkingen, met inbegrip van vrijwillige uitvoerbeperkingen en regelingen voor het geordend op de markt brengen die van invloed zijn op de invoer

Andere niet-tarifaire maatregelen, waaronder voorschriften inzake vergunningen en koppeling; variabele heffingen

Douanewaarde

Regels van oorsprong

Overheidsopdrachten

Technische belemmeringen

Vrijwaringsmaatregelen

Anti-dumpingmaatregelen

Compenserende maatregelen

Uitvoerheffingen

Uitvoersubsidies, vrijstelling van rechten en heffingen en exportfinanciering op gunstige voorwaarden

Vrijhandelszones, met inbegrip van fabricage onder douanetoezicht

Uitvoerbeperkingen, met inbegrip van vrijwillige uitvoerbeperkingen en regelingen voor het geordend op de markt brengen

Andere overheidssteun, met inbegrip van subsidies, vrijstelling van rechten en heffingen

Rol van staatshandelsondernemingen

Deviezencontroles met betrekking tot invoer en uitvoer

Compensatiehandel in opdracht van de overheid

Alle andere maatregelen die vallen onder de Multilaterale handelsovereenkomsten in bijlage 1A bij de WTO-Overeenkomst

Verklaring inzake de betrekkingen tussen de Wereldhandelsorganisatie en het Internationale Monetaire Fonds

De Ministers,

Wijzend op de nauwe betrekkingen tussen de Partijen bij de GATT-Overeenkomst van 1947 en het Internationale Monetaire Fonds, en op de bepalingen van de GATT-Overeenkomst van 1947 waarbij deze betrekkingen worden geregeld, met name artikel XV van de GATT-Overeenkomst van 1947;

Erkennend de wens van de deelnemers om de betrekkingen tussen de Wereldhandelsorganisatie en het Internationale Monetaire Fonds, wat de gebieden betreft die worden bestreken door de Multilaterale Handelsovereenkomsten in Bijlage 1A bij de WTO-Overeenkomst, te baseren op de bepalingen die de betrekkingen tussen de Partijen bij de GATT-Overeenkomst van 1947 en het Internationale Monetaire Fonds hebben geregeld;

Bevestigen hierbij opnieuw dat, tenzij in de Slotakte anders is bepaald, de betrekkingen tussen de WTO en het Internationale Monetaire Fonds, wat de gebieden betreft die worden bestreken door de Multilaterale Handelsovereenkomsten in Bijlage 1A bij de WTO-Overeenkomst, zullen zijn gebaseerd op de bepalingen die de betrekkingen tussen de Partijen bij de GATT-Overeenkomst van 1947 en het Internationale Monetaire Fonds hebben geregeld.

Besluit inzake maatregelen naar aanleiding van mogelijke negatieve effecten van het hervormingsprogramma op de minstontwikkelde landen en op de ontwikkelingslanden die netto-importeur van voedsel zijn

• 1. De Ministers erkennen dat de geleidelijke uitvoering van het geheel van resultaten van de Uruguay-Ronde steeds meer mogelijkheden voor uitbreiding van de handel en economische groei zal scheppen ten voordele van alle deelnemers.

• 2. De Ministers erkennen dat tijdens de uitvoering van het hervormingsprogramma dat leidt tot grotere liberalisering van de handel in landbouwprodukten de minstontwikkelde landen en de ontwikkelingslanden die netto-importeur van voedsel zijn, negatieve effecten kunnen ondervinden, wat betreft het op redelijke voorwaarden beschikbaar zijn van toereikende hoeveelheden basisvoedingsmiddelen uit het buitenland, en ondermeer moeilijkheden op korte termijn kunnen ondervinden bij het financieren van commerciële invoer van basisvoedingsmiddelen op een normaal niveau.

• 3. De Ministers komen derhalve overeen passende regelingen in te stellen om ervoor te zorgen dat de uitvoering van de resultaten van de Uruguay-Ronde op het gebied van de handel in landbouwprodukten geen nadelige invloed heeft op de beschikbaarheid van voedselhulp op een niveau dat toereikend is om bijstand te blijven verlenen ten einde te voorzien in de voedselbehoeften van de ontwikkelingslanden, vooral de minstontwikkelde landen en de ontwikkelingslanden die netto-importeur van voedsel zijn. Daartoe komen de Ministers overeen:

  • i. het niveau dat de Commissie inzake Voedselhulp op grond van het Voedselhulpverdrag 1986 periodiek voor voedselhulp vaststelt te onderzoeken en in het bevoegde forum onderhandelingen op gang te brengen om de voedselhulpverbintenissen vast te stellen op een niveau dat toereikend is om te voorzien in de rechtmatige behoeften van de ontwikkelingslanden tijdens de uitvoering van het hervormingsprogramma;

  • ii. richtsnoeren vast te stellen om ervoor te zorgen dat een steeds groter deel van de basisvoedingsmiddelen volledig als schenking en/of op passende gunstige voorwaarden aan de minstontwikkelde landen en de ontwikkelingslanden die netto-importeur van voedsel zijn, wordt verstrekt overeenkomstig artikel IV van het Voedselhulpverdrag 1986;

  • iii. in het kader van hun hulpprogramma's ten volle rekening te houden met de verzoeken om technische en financiële bijstand aan de minstontwikkelde landen en de ontwikkelingslanden die netto importeur van voedsel zijn, ten einde hun landbouwproduktiviteit en -infrastructuur te verbeteren.

• 4. De Ministers komen voorts overeen ervoor te zorgen dat elke overeenkomst met betrekking tot landbouwexportkredieten op passende wijze voorziet in een afwijkende behandeling ten gunste van de minstontwikkelde landen en de ontwikkelingslanden die netto-importeur van voedsel zijn.

• 5. De Ministers erkennen dat sommige ontwikkelingslanden als gevolg van de Uruguay-Ronde moeilijkheden op korte termijn kunnen ondervinden bij het financieren van commerciële invoer op een normaal niveau en dat het deze landen zou kunnen worden toegestaan gebruik te maken van de middelen van internationale financiële instellingen op grond van bestaande, of nog in te stellen faciliteiten in het kader van aanpassingsprogramma's om de betrokken financieringsproblemen aan te pakken. De Ministers nemen in dit verband nota van punt 37 van het rapport van de Directeur-Generaal van de Overeenkomstsluitende Partijen bij de GATT van 1947 over zijn overleg met de Managing director van het Internationaal Monetair Fonds en de President van de Wereldbank (MTN.GNG/NG14/W/35).

• 6. De bepalingen van dit besluit worden regelmatig door de Ministeriële Conferentie onderzocht, en de Landbouwcommissie ziet op passende wijze toe op het gevolg dat aan dit besluit wordt gegeven.

Besluit over de mededeling van de eerste integratie op grond van artikel 2, lid 6, van de overeenkomst inzake textiel- en kledingprodukten

De Ministers komen overeen dat de deelnemers die de beperkingen handhaven die onder artikel 2, lid 1, van de Overeenkomst inzake Textiel- en Kledingsprodukten vallen het Secretariaat van de GATT volledige gegevens zullen verstrekken over de maatregelen die op grond van artikel 2, lid 6 van deze Overeenkomst ten laatste op 1 oktober 1994 moeten worden genomen. Het Secretariaat van de GATT zal deze mededelingen onmiddellijk ter informatie aan de andere deelnemers doen toekomen. Deze mededelingen zullen het Orgaan Supervisie Textielprodukten, zodra het is opgericht, ter beschikking worden gesteld, met het oog op de in artikel 2, lid 21, van de Overeenkomst inzake Textiel- en Kledingprodukten genoemde doeleinden.

Besluit inzake een voorstel voor een Memorandum van Overeenstemming betreffende een informatiesysteem voor WTO-ISO-normen

De Ministers besluiten aan te bevelen dat het Secretariaat van de Wereldhandelsorganisatie een Memorandum van Overeenstemming sluit met de Internationale Organisatie voor Standaardisatie („ISO”) met het oog op de invoering van een informatiesysteem waarbij:

• 1. de leden van ISONET de kennisgevingen bedoeld onder C en J van de in bijlage 3 bij de Overeenkomst inzake technische handelsbelemmeringen opgenomen „Praktijkrichtlijn voor het opstellen, het aannemen en de toepassing van normen”, aan het ISO/IEC-informatiecentrum te Genève doen toekomen volgens de daarin omschreven procedure;

• 2. in de onder J bedoelde werkprogramma's het hierna volgende (alfa)numerieke classificatiesysteem wordt gebruikt:

  • a. een classificatiesysteem voor normen dat de normalisatie-instellingen de mogelijkheid biedt voor elke in het werkprogramma genoemde norm een (alfa)numerieke referentie van de betrokken materie te geven;

  • b. een gefaseerd coderingssysteem dat normalisatie-instellingen de mogelijkheid biedt voor elke in het werkprogramma genoemde norm een (alfa)numerieke referentie te geven van het ontwikkelingsstadium waarin de norm zich bevindt. Hierbij worden ten minste 5 ontwikkelingsstadia onderscheiden: (1) het stadium waarin het besluit tot vaststelling van een norm is genomen, maar nog geen aanvang is gemaakt met de technische werkzaamheden; (2) het stadium waarin een aanvang is gemaakt met de technische werkzaamheden, maar de termijn voor het naar voren brengen van commentaar nog niet is ingegaan; (3) het stadium waarin de termijn voor het naar voren brengen van commentaar is ingegaan, maar nog niet is afgesloten; (4) het stadium waarin de periode voor het naar voren brengen van commentaar is afgesloten, maar de norm nog niet is aangenomen; (5) het stadium waarin de norm is aangenomen;

  • c. een identificatiesysteem voor alle internationale normen dat normalisatie-instellingen de mogelijkheid biedt voor elke in het werkprogramma genoemde norm een (alfa)numerieke referentie te geven van de internationale normen waarop deze gebaseerd is;

• 3. het ISO/IEC Informatiecentrum het Secretariaat onverwijld de tekst van alle onder C van de Praktijkrichtlijn bedoelde kennisgevingen doet toekomen;

• 4. het ISO/IEC Informatiecentrum op gezette tijden de informatie publiceert die is vervat in de kennisgevingen die het overeenkomstig het bepaalde onder C en J van de Praktijkrichtlijn heeft ontvangen. Deze publikatie, waarvoor een redelijke vergoeding mag worden gevraagd, wordt aan de leden van ISONET en, via het Secretariaat, aan de Leden van de WTO toegezonden.

Besluit inzake het onderzoek van de publikatie van het ISO/IEC-informatiecentrum

De Ministers besluiten dat, overeenkomstig het bepaalde in artikel 13, lid 1 van de Overeenkomst inzake technische handelsbelemmeringen die in bijlage 1A bij de Overeenkomst tot oprichting van de Wereldhandelsorganisatie is opgenomen, de bij deze Overeenkomst ingestelde Commissie technische handelsbelemmeringen, onverminderd de bepalingen betreffende overleg en geschillenbeslechting, de publikatie van het ISO/IEC Informatiecentrum betreffende de informatie die is ontvangen ingevolge de in bijlage 3 bij de Overeenkomst opgenomen Praktijkrichtlijn voor het opstellen, het aannemen en de toepassing van normen, ten minste éénmaal per jaar aan een onderzoek onderwerpt ten einde de leden de gelegenheid te geven van gedachten te wisselen over alle zaken die verband houden met de werking van deze Praktijkrichtlijn.

Ten behoeve van deze gedachtenwisseling stelt het Secretariaat per lid een lijst op van alle normalisatie-instellingen die de Praktijkrichtlijn sedert het laatste onderzoek hebben aanvaard of zich daarvan hebben gedistantieerd.

Het Secretariaat doet de leden bovendien onverwijld de tekst toekomen van de kennisgevingen die het van het ISO/IEC Informatiecentrum ontvangt.

Besluit inzake de ontduiking van anti-dumpingmaatregelen

De Ministers,

„Vaststellende dat, hoewel de ontduiking van anti-dumpingmaatregelen aan de orde is geweest tijdens de onderhandelingen die aan de totstandkoming van de Overeenkomst inzake de toepassing van artikel VI van GATT 1994 voorafgingen, de onderhandelaars geen overeenstemming hebben bereikt over een specifieke tekst,

Erkennende dat het wenselijk is dat op dit gebied ten spoedigste uniforme regels van toepassing worden.

Besluiten deze kwestie ter behandeling aan de bij de genoemde Overeenkomst ingestelde Commissie anti-dumpingpraktijken voor te leggen.”

Besluit inzake de herziening van artikel 17, lid 6 van de Overeenkomst inzake de toepassing van artikel VI van de Algemene Overeenkomst betreffende tarieven en handel 1994

De Ministers,

besluiten hetgeen volgt:

Het criterium voor het instellen van een onderzoek als bedoeld in artikel 17, lid 6, van de Overeenkomst inzake de toepassing van artikel VI van GATT 1994 wordt na drie jaar herzien om te bepalen of dit criterium voor algemene toepassing vatbaar is.

Verklaring betreffende geschillenbeslechting in het kader van de Overeenkomst inzake de toepassing van artikel VI van de Algemene Overeenkomst betreffende tarieven en handel 1994 of deel V van de Overeenkomst inzake subsidies en compenserende maatregelen

De Ministers erkennen, wat de geschillenbeslechting in het kader van de Overeenkomst inzake de toepassing van artikel VI van de Algemene Overeenkomst inzake Tarieven en Handel 1994 of deel V van de Overeenkomst inzake subsidies en compenserende maatregelen betreft, de noodzaak van een coherente benadering bij het regelen van geschillen in verband met anti-dumpingmaatregelen en compenserende maatregelen.

Besluit betreffende gevallen waarin de douane redenen heeft om te twijfelen aan de juistheid of de nauwkeurigheid van de aangegeven waarde

De Ministers verzoeken de in het kader van de Overeenkomst inzake de toepassing van artikel VII van GATT 1994 ingestelde Commissie douanewaarde het volgende besluit te nemen:

De Commissie douanewaarde,

Bevestigende dat de transactiewaarde de belangrijkste grondslag is voor het vaststellen van de douanewaarde in het kader van de Overeenkomst inzake de toepassing van artikel VII van GATT 1994 (hierna „de Overeenkomst” genoemd);

Erkennende dat de douanediensten in bepaalde gevallen redenen kunnen hebben om te twijfelen aan de juistheid of de nauwkeurigheid van gegevens of documenten die door de handelaren tot staving van een aangegeven waarde worden verstrekt;

Overwegende dat de douanediensten de legitieme commerciële belangen van de handelaren hierdoor niet mogen schaden;

Rekening houdende met artikel 17 van de Overeenkomst, met punt 6 van bijlage III bij de Overeenkomst en met de desbetreffende besluiten van de Technische commissie douanewaarde;

Besluiten:

• 1. Wanneer een aangifte wordt overgelegd en de douane redenen heeft om te twijfelen aan de juistheid of de nauwkeurigheid van de tot staving van deze aangifte verstrekte gegevens of documenten, kan zij de importeur verzoeken aanvullend bewijsmateriaal, met inbegrip van documenten of andere bescheiden, over te leggen ten bewijze dat de aangegeven waarde het totale, werkelijk voor de ingevoerde goederen betaalde of te betalen bedrag, aangepast overeenkomstig de bepalingen van artikel 8, vertegenwoordigt. Indien de douane, nadat zij deze aanvullende informatie heeft ontvangen, of indien zij geen antwoord ontvangt, nog steeds redelijke twijfel heeft omtrent de juistheid of de nauwkeurigheid van de aangegeven waarde kan zij, met inachtneming van het bepaalde in artikel 11, ervan uitgaan dat de douanewaarde van de ingevoerde goederen niet overeenkomstig artikel 1 kan worden vastgesteld. Voor zij een definitief besluit neemt stelt de douane de importeur, desgevraagd schriftelijk, in kennis van de redenen waarom zij twijfelt aan de juistheid of de nauwkeurigheid van de verstrekte gegevens of documenten en wordt de importeur voldoende tijd gegeven om hierop te antwoorden. Wanneer zij een definitief besluit neemt stelt de douane de importeur schriftelijk in kennis van dit besluit en van de redenen welke daaraan ten grondslag liggen.

• 2. Het verlenen van bijstand door een Lid aan een ander Lid bij de toepassing van de Overeenkomst op onderling overeengekomen voorwaarden is geheel en al in overeenstemming met de bepalingen van de Overeenkomst.

Besluit betreffende de teksten in verband met de minimumwaarden en de invoer door exclusieve agenten, exclusieve distributeurs en exclusieve concessiehouders

De Ministers besluiten de hiernavolgende teksten ter goedkeuring aan de bij de Overeenkomst inzake de toepassing van artikel VII van de GATT 1994 ingestelde Commissie Douanewaarde voor te leggen.

• I Wanneer een ontwikkelingsland voorbehoud maakt ten einde van ambstwege vastgestelde minimumwaarden in de zin van punt 2 van bijlage III te kunnen handhaven en dit voorbehoud met voldoende argumenten onderbouwd is, neemt de Commissie het daartoe strekkende verzoek in welwillende overweging.

  Wanneer een voorbehoud wordt aanvaard, dient in de in punt 2 van bijlage III bedoelde voorwaarden ten volle rekening te worden gehouden met de behoeften van het betrokken ontwikkelingsland op het gebied van ontwikkeling, financiën en handel.

• II

  • 1. Een aantal ontwikkelingslanden heeft uiting gegeven aan zijn verontrusting dat het bepalen van de douanewaarde van door exclusieve agenten, exclusieve distributeurs en exclusieve concessiehouders ingevoerde produkten problemen zal doen rijzen. In artikel 20, lid 1 is bepaald dat Leden die ontwikkelingslanden zijn de toepassing van de Overeenkomst met ten hoogste vijf jaar kunnen uitstellen. De vorengenoemde Leden die van deze mogelijkheid gebruik maken, kunnen deze periode benutten om het nodige onderzoek te doen en maatregelen te nemen om de toepassing van de Overeenkomst te vereenvoudigen.

  • 2. Met het oog hierop beveelt de Commissie de Internationale douaneraad aan de Leden die ontwikkelingslanden zijn overeenkomstig de bepalingen van bijlage II te helpen bij het opzetten en uitvoeren van dergelijk onderzoek op gebieden die als problematisch zijn aangemerkt, onder meer die welke verband houden met de invoer door exclusieve agenten, exclusieve distributeurs en exclusieve concessiehouders.

Besluit betreffende institutionele regelingen voor de Algemene Overeenkomst inzake de handel in diensten

De ministers besluiten de Raad voor de handel in diensten aan te bevelen tijdens zijn eerste vergadering het navolgende besluit over ondersteunende organen te nemen.

De Raad voor de handel in diensten,

Handelend op grond van artikel XXIV met het oog op de vergemakkelijking van de werking en de bevordering van de doelstellingen van de Algemene Overeenkomst inzake de handel in diensten,

Besluit als volgt:

• 1. Eventueel door de Raad in te stellen ondersteunende organen brengen jaarlijks, of indien noodzakelijk, vaker verslag uit aan de Raad. Ieder orgaan stelt zijn eigen reglement van orde op en kan, zo nodig, zijn eigen ondersteunende organen in het leven roepen.

• 2. Sectoriële commissies voeren de taken uit die hun door de Raad zijn toebedeeld en geven de Leden de mogelijkheid tot overleg over aangelegenheden met betrekking tot de handel in diensten in de betrokken sector en de werking van de eventueel bij die sector behorende sectoriële bijlage. Deze taken omvatten:

  • a. voortdurend onderzoek van en toezicht op de uitvoering van de Overeenkomst voor wat de betrokken sector betreft;

  • b. formulering van voorstellen of aanbevelingen aan de Raad over aangelegenheden betreffende de handel in de betrokken sector;

  • c. indien er een bij de sector behorende bijlage is, behandeling van wijzigingsvoorstellen voor deze bijlage en het doen van passende aanbevelingen aan de Raad;

  • d. optreden als forum voor technische discussies, verrichten van studies over maatregelen van de Leden en onderzoek van andere technische aangelegenheden die de handel in diensten in de betrokken sector raken;

  • e. verlening van technische bijstand op het gebied van de uitvoering van verplichtingen of andere zaken die de handel in de sector in kwestie raken aan Leden die ontwikkelingslanden zijn en ontwikkelingslanden die onderhandelen over toetreding tot de Overeenkomst tot oprichting van de Wereldhandelorganisatie; en

  • f. samenwerking met andere krachtens de Algemene Overeenkomst inzake de handel in diensten opgerichte ondersteunende organen of in betrokken sectoren actieve internationale organisaties.

• 3. Hierbij wordt een Commissie voor de handel in financiële diensten opgericht, met de in punt 2 genoemde taken.

Besluit betreffende bepaalde geschillenbeslechtingsprocedures voor de Algemene Overeenkomst inzake de handel in diensten

De ministers besluiten de Raad voor de handel in diensten aan te bevelen tijdens zijn eerste vergadering het navolgende besluit te nemen.

De Raad voor de handel in diensten,

Met inachtneming van de specifieke aard van de verplichtingen en specifieke verbintenissen van de Overeenkomst, en van de handel in diensten voor wat betreft de beslechting van geschillen krachtens artikel XXII en artikel XXIII,

Besluit als volgt:

• 1. Er wordt een lijst van panelleden opgesteld met het oog op de selectie van panelleden.

• 2. Te dien einde kunnen de Leden voorstellen de namen van personen die de in punt 3 genoemde kwalificaties bezitten op de lijst op te nemen en verstrekken zij een curriculum vitae met daarin de kwalificaties van deze personen en, indien van toepassing, een aanduiding van hun specifieke sectoriële deskundigheid.

• 3. De panels worden samengesteld uit hooggekwalificeerden al dan niet afkomstig uit overheidskringen die ervaring hebben met aangelegenheden verbandhoudende met de Algemene Overeenkomst inzake de handel in diensten en/of de handel in diensten, met inbegrip van hieraan gerelateerde regelgeving. De panelleden oefenen hun taak als particulier persoon uit en niet als vertegenwoordiger van een regering of organisatie.

• 4. De panels voor geschillen over sectoriële kwesties beschikken over de nodige deskundigheid ter zake van de specifieke dienstensectoren die onderwerp van het geschil zijn.

• 5. Het secretariaat houdt de lijst bij en ontwikkelt in overleg met de voorzitter van de Raad procedures voor het beheer daarvan.

Besluit betreffende de handel in diensten en het milieu

De ministers besluiten de Raad voor de handel in diensten aan te bevelen tijdens zijn eerste vergadering het navolgende besluit te nemen.

De Raad voor de handel in diensten,

Erkennende dat voor de bescherming van het milieu noodzakelijke maatregelen in conflict kunnen komen met de bepalingen van de Overeenkomst; en

Opmerkende dat het, aangezien het kenmerk van voor de bescherming van het milieu noodzakelijke maatregelen is dat zij zijn gericht op bescherming van het leven en de gezondheid van mens, dier of plant, niet duidelijk is dat er behoefte bestaat om in meer te voorzien dan is vervat in artikel XIV, sub b.;

Besluit:

• 1. De Commissie voor handel en milieu te verzoeken om de relatie tussen de handel in diensten en het milieu, inclusief het punt duurzame ontwikkeling, aan een onderzoek te onderwerpen en daarover verslag, eventueel met aanbevelingen, uit te brengen ten einde vast te stellen of het noodzakelijk is artikel XIV van de Overeenkomst te wijzigen om rekening te houden met dergelijke maatregelen. De Commissie onderzoekt tevens de relevantie van intergouvernementele overeenkomsten over het milieu en hun relatie tot de Overeenkomst.

• 2. De Commissie brengt verslag uit over haar werkzaamheden aan de eerste om de twee jaar te houden vergadering van de Ministeriële Conferentie na de inwerkingtreding van de Overeenkomst tot oprichting van de Wereldhandelsorganisatie.

Besluit betreffende onderhandelingen over het verkeer van natuurlijke personen

De ministers,

Nota nemende van de uit de Uruguay-Ronde voortvloeiende verbintenissen op het gebied van het verkeer van natuurlijke personen met het oog op het verlenen van diensten;

Indachtig de doelstellingen van de Algemene Overeenkomst inzake de handel in diensten, zoals bijvoorbeeld de groeiende deelname van de ontwikkelingslanden aan de handel in diensten en de expansie van hun uitvoer van diensten;

Erkennende het belang van verdergaande verbintenissen betreffende het verkeer van natuurlijke personen ten einde in het kader van de Algemene Overeenkomst inzake de handel in diensten tot een evenwichtige verdeling van de voordelen te komen;

Besluiten als volgt:

• 1. De onderhandelingen over de verdere liberalisering van het verkeer van natuurlijke personen met het oog op het verlenen van diensten worden na de afronding van de Uruguay-Ronde voortgezet met het doel verdergaande verbintenissen van de zijde van de deelnemers aan de Algemene Overeenkomst inzake de handel in diensten mogelijk te maken.

• 2. Er wordt een Onderhandelingsgroep voor het verkeer van natuurlijke personen opgericht die tot taak krijgt de onderhandelingen te voeren. De groep stelt haar eigen procedures vast en brengt regelmatig verslag uit aan de Raad voor de handel in diensten.

• 3. De Onderhandelingsgroep houdt haar eerste onderhandelingsbijeenkomst ten laatste op 16 mei 1994. Uiterlijk zes maanden na de inwerkingtreding van de Overeenkomst tot oprichting van de Wereldhandelsorganisatie sluit de groep de onderhandelingen af en brengt zij een eindverslag uit aan de Raad voor de handel in diensten.

• 4. De uit deze onderhandelingen voortvloeiende verbintenissen worden opgenomen op de Lijsten van specifieke verbintenissen van de Leden.

Besluit betreffende financiële diensten

De ministers,

Erop wijzende dat de bij afsluiting van de Uruguay-Ronde door de deelnemers op hun lijsten opgenomen verbintenissen betreffende financiële diensten op hetzelfde moment als de Overeenkomst tot oprichting van de Wereldhandelsorganisatie (hierna de „WTO-Overeenkomst” genoemd) op basis van het beginsel van meestbegunstiging in werking treden,

Besluiten als volgt:

• 1. In afwijking van de bepalingen van artikel XXI van de Algemene Overeenkomst inzake de handel in diensten staat het de Leden na een periode die uiterlijk zes maanden na de datum van inwerkingtreding van de WTO-Overeenkomst eindigt vrij al hun of een gedeelte van hun verbintenissen betreffende deze sector te verbeteren, te wijzigen of in te trekken zonder compensatie aan te bieden. Tezelfdertijd leggen de Leden hun standpunt ten aanzien van vrijstellingen van de meestbegunstingsclausule in deze sector definitief vast, in afwijking van de bepalingen van de Bijlage betreffende vrijstellingen van de in artikel II vervatte verplichtingen. Vanaf de datum van inwerkingtreding van de WTO-Overeenkomst tot het einde van de hierboven genoemde periode zullen vrijstellingen die zijn opgenomen in de Bijlage betreffende vrijstellingen van de in artikel II vervatte verplichtingen en die afhankelijk zijn van het niveau van de door andere deelnemers aangegane verbintenissen of de door andere deelnemers aangegane verbintenissen niet worden toegepast.

• 2. De Commissie voor de handel in financiële diensten volgt het verloop van de overeenkomstig dit besluit gevoerde onderhandelingen en brengt daarover ten laatste vier maanden na de datum van inwerkingtreding van de WTO-Overeenkomst verslag aan de Raad voor de handel in diensten uit.

Besluit betreffende onderhandelingen over zeevervoerdiensten

De ministers,

Erop wijzende dat de door de deelnemers bij de beëindiging van de Uruguay-Ronde op hun lijsten opgenomen verbintenissen betreffende zeevervoerdiensten op hetzelfde moment op basis van het beginsel van meestbegunstiging in werking treden als de Overeenkomst tot oprichting van de Wereldhandelsorganisatie (hierna de „WTO-Overeenkomst” genoemd),

Besluiten als volgt:

• 1. Binnen het kader van de Algemene Overeenkomst inzake de handel in diensten worden op vrijwillige basis onderhandelingen aangegaan over de sector zeevervoerdiensten. De onderhandelingen bestrijken een breed terrein en zijn gericht op verbintenissen op het gebied van de internationale scheepvaart, ondersteunende diensten, toegang tot en gebruik van havenfaciliteiten en leiden binnen een vastgesteld tijdschema tot de opheffing van beperkingen.

• 2. Om dit mandaat uit te voeren wordt een Onderhandelingsgroep voor zeevervoerdiensten (hierna „NGMTS” genoemd) opgericht. De NGMTS rapporteert regelmatig over het verloop van de onderhandelingen.

• 3. De onderhandelingen in de NGMTS staan open voor alle regeringen en de Europese Gemeenschappen, die hun voornemen tot deelname kenbaar maken. Tot op heden maakten hun voornemen om aan de onderhandelingen deel te nemen kenbaar:

  Argentinië, Canada, de Europese Gemeenschappen en hun Lid-Staten, de Filippijnen, Finland, Hong-Kong, Indonesië, Korea, Maleisië, Mexico, Nieuw-Zeeland, Noorwegen, Polen, Roemenië, Singapore, Thailand, Turkije, IJsland, de Verenigde Staten, Zweden en Zwitserland.

  Verdere aanmeldingen van een voornemen tot deelname worden aan de depositaris van de WTO-Overeenkomst gericht.

• 4. De NGMTS houdt haar eerste onderhandelingszitting uiterlijk op 16 mei 1994. Ten laatste in juni 1996 sluit zij de onderhandelingen af en stelt zij een eindverslag op. In het eindverslag is een datum voor de tenuitvoerlegging van de onderhandelingsresultaten opgenomen.

• 5. Tot de beëindiging van de onderhandelingen wordt de toepassing op deze sector van artikel II en de punten 1 en 2 van de Bijlage betreffende vrijstellingen van de in artikel II vervatte verplichtingen opgeschort en behoeven vrijstellingen van het beginsel van meestbegunstiging niet op lijsten te worden opgenomen. Bij de beëindiging van de onderhandelingen staat het de Leden, in afwijking van artikel XXI van de Overeenkomst, vrij verbintenissen betreffende deze sector die tijdens de Uruguay-Ronde zijn aangegaan, zonder compensatie aan te bieden, te verbeteren, te wijzigen of in te trekken. Tezelfdertijd leggen de Leden hun standpunt ten aanzien van vrijstellingen van de meestbegunstigingsclausule in deze sector definitief vast, in afwijking van de bepalingen van de Bijlage betreffende vrijstellingen van de in artikel II vervatte verplichtingen. Mochten de onderhandelingen niet slagen, dan beslist de Raad voor de handel in diensten of de onderhandelingen overeenkomstig dit mandaat worden voortgezet.

• 6. Alle uit de onderhandelingen voortvloeiende verbintenissen, met inbegrip van de datum van hun inwerkingtreding, worden op de bij de Algemene Overeenkomst inzake de handel in diensten gevoegde lijsten opgenomen en zijn aan alle bepalingen van de Overeenkomst onderworpen.

• 7. Met onmiddellijke ingang en tot de ingevolge punt 4 te bepalen datum van tenuitvoerlegging wordt overeengekomen dat de deelnemers geen maatregelen treffen die van invloed zijn op de handel in zeevervoerdiensten, uitgezonderd maatregelen naar aanleiding van door andere landen getroffen maatregelen, gericht op handhaving en verbetering van het vrij verstrekken van zeevervoerdiensten, of die hun onderhandelingspositie verbeteren.

• 8. De toepassing van punt 7 is onderworpen aan controle in de NGMTS. De deelnemers kunnen de aandacht van de NGMTS vestigen op elke maatregel of omissie die zij voor de uitvoering van punt 7 van belang achten. Dergelijke kennisgevingen worden na ontvangst door het secretariaat geacht aan de NGMTS te zijn voorgelegd.

Besluit betreffende onderhandelingen over basistelecommunicatie

De ministers besluiten het volgende:

• 1. In het kader van de Algemene Overeenkomst inzake de handel in diensten worden op vrijwillige basis onderhandelingen aangegaan met het oog op de geleidelijke liberalisering van de handel in telecommunicatienetwerken en -diensten (hierna „basistelecommunicatie” genoemd).

• 2. Onverminderd hun uitkomst is de werkingssfeer van de onderhandelingen algemeen en is geen enkele vorm van basistelecommunicatie hiervan a priori uitgesloten.

• 3. Om dit mandaat uit te voeren, wordt een Onderhandelingsgroep voor basistelecommunicatie (hierna „NGBT genoemd) opgericht. De NGBT rapporteert regelmatig over het verloop van de onderhandelingen.

• 4. De onderhandelingen in de NGBT staan open voor alle regeringen en de Europese Gemeenschappen, die hun voornemen tot deelname kenbaar maken. Tot op heden maakten hun voornemen om aan de onderhandelingen deel te nemen kenbaar:

  Australië, Canada, Chili, Cyprus, de Europese Gemeenschappen en hun Lid-Staten, Finland, Hongarije, Hong Kong, Japan, Korea, Mexico, Nieuw-Zeeland, Noorwegen, Oostenrijk, Slowakije, Turkije, de Verenigde Staten, Zweden en Zwitserland.

  Verdere aanmeldingen van een voornemen tot deelname worden aan de depositaris van de WTO-Overeenkomst gericht.

• 5. De NGBT houdt haar eerste onderhandelingsbijeenkomst uiterlijk op 16 mei 1994. Ten laatste op 30 april 1996 sluit zij de onderhandelingen af en stelt zij een eindverslag op. In het eindverslag is een datum voor de tenuitvoerlegging van de onderhandelingsresultaten opgenomen.

• 6. Alle uit de onderhandelingen voortvloeiende verbintenissen, met inbegrip van de datum van hun inwerkingtreding, worden op de bij de Algemene Overeenkomst inzake de handel in diensten gevoegde lijsten opgenomen en zijn aan alle bepalingen van de Overeenkomst onderworpen.

• 7. Met onmiddellijke ingang en tot de ingevolge punt 5 te bepalen datum van tenuitvoerlegging wordt overeengekomen dat geen deelnemer dusdanige maatregelen op het gebied van de handel in basistelecommunicatie treft dat zijn onderhandelingspositie daardoor wordt verbeterd. Overeengekomen wordt dat deze bepaling geen beletsel vormt voor het treffen van commerciële en overheidsregelingen betreffende de levering van basistelecommunicatiediensten.

• 8. De toepassing van punt 7 is onderworpen aan controle in de NGBT. De deelnemers kunnen de aandacht van de NGBT vestigen op elke maatregel of omissie die zij voor de uitvoering van punt 7 van belang achten. Dergelijke kennisgevingen worden na ontvangst door het secretariaat geacht aan de NGBT te zijn voorgelegd.

Besluit betreffende diensten van deskundigen

De ministers besluiten de Raad voor de handel in diensten aan te bevelen tijdens zijn eerste vergadering het navolgende besluit te nemen.

De Raad voor de handel in diensten,

Erkennende de uitwerking van regelgevingsmaatregelen betreffende beroepskwalificaties, technische normen en verlening van vergunningen op de expansie van de handel in diensten van deskundigen;

Wensende multilaterale regels op te stellen ten einde te verzekeren dat deze regelgevingsmaatregelen, wanneer specifieke verbintenissen worden aangegaan, geen onnodige hindernissen voor de verlening van diensten van deskundigen opwerpen;

Besluit het volgende:

• 1. Het in artikel VI, lid 4, inzake Interne Regelgeving voorziene werkprogramma dient onmiddellijk ten uitvoer te worden gelegd. Te dien einde wordt een Werkgroep inzake diensten van deskundigen opgericht die de regels die nodig zijn om te waarborgen dat maatregelen in verband met kwalificatie-eisen en -procedures, technische normen en vergunningsvoorschriften op het gebied van diensten van deskundigen geen onnodige handelsbelemmeringen opwerpen, onderzoekt en daarover een verslag uitbrengt waarin aanbevelingen zijn vervat.

• 2. De Werkgroep geeft voorrang aan het formuleren van aanbevelingen ten behoeve van het opstellen van multilaterale regels voor de accountancy-sector, zodat specifieke verbintenissen operationeel kunnen worden. De Werkgroep concentreert zich bij het opstellen van deze aanbevelingen op:

  • a. de ontwikkeling van multilaterale regels voor markttoegang ten einde te verzekeren dat interne regelgevingsvoorschriften: i. gebaseerd zijn op objectieve en doorzichtige criteria, zoals vakbekwaamheid en het vermogen de dienst te verlenen; ii. niet strenger zijn dan noodzakelijk is om de kwaliteit van de dienst te verzekeren, waardoor de daadwerkelijke liberalisering van accountancy-diensten wordt vergemakkelijkt;

  • b. het gebruik van internationale normen en stimuleert aldus de samenwerking met de desbetreffende internationale organisaties zoals gedefinieerd in artikel VI, lid 5, onder (b) om volledige uitvoering te geven aan artikel VII, lid 5;

  • c. vergemakkelijking van de daadwerkelijke toepassing van artikel VI, lid 6, van de Overeenkomst middels het opstellen van richtsnoeren voor de erkenning van kwalificaties.

    De Werkgroep houdt bij het opstellen van deze regels rekening met het belang van de gouvernementele en niet-gouvernementele organen die de diensten van deskundigen reglementeren.

Besluit betreffende toetreding tot de Overeenkomst inzake Overheidsopdrachten

• 1. De ministers verzoeken de commissie voor Overheidsopdrachten die is ingesteld in het kader van de Overeenkomst inzake Overheidsopdrachten welke in bijlage 4 (b) van de Overeenkomst tot Oprichting van de Wereldhandelsorganisatie werd opgenomen, vast te stellen dat:

  • a. een Lid dat tot de Overeenkomst wenst toe te treden in overeenstemming met lid 2 van artikel XXIV van de Overeenkomst inzake overheidsopdrachten, van zijn belangstelling mededeling doet aan de Directeur-Generaal van de WTO en daarbij de nodige informatie indient met inbegrip van een aanbod betreffende het in aanhangsel I op te nemen toepassingsgebied dat is opgesteld met inachtneming van de desbetreffende bepalingen van de Overeenkomst, met name artikel I en eventueel artikel V;

  • b. van de mededeling kennisgeving wordt gedaan aan alle partijen bij de Overeenkomst;

  • c. het Lid dat wenst toe te treden, met de partijen overleg pleegt over de voorwaarden voor zijn toetreding tot de Overeenkomst;

  • d. ter vergemakkelijking van de toetreding de commissie een werkgroep instelt, indien het betrokken Lid of om het even welke partij bij de Overeenkomst daarom verzoekt; de werkgroep zich bezighoudt met het onderzoek van: i. het aanbod van het Lid dat om toetreding verzoekt, betreffende het toepassingsgebied, en ii. de terzake dienende informatie betreffende de exportmogelijkheden in de markten van de partijen, rekening houdend met de bestaande en potentiële exportcapaciteit van het Lid dat om toetreding verzoekt, en de exportmogelijkheden van de partijen in de markt van het Lid dat om toetreding verzoekt;

  • e. het toetredende Lid, zodra de commissie een besluit neemt houdende instemming met de toetredingsvoorwaarden inclusief de lijsten van de voor het toetredende Lid in aanmerking komende instanties, bij de Directeur-Generaal van de WTO een akte van toetreding nederlegt waarin de aldus overeengekomen voorwaarden zijn opgenomen; de lijsten in het Engels, Frans en Spaans met de voor het toetredende Lid in aanmerking komende instanties als aanhangsel aan de Overeenkomst worden toegevoegd;

  • f. in de aan het in werking treden van de WTO-overeenkomst voorafgaande periode bovenbedoelde procedures mutatis mutandis van toepassing zijn op de partijen bij GATT 1947 welke wensen toe te treden, en de aan de Directeur-Generaal van de WTO opgedragen taken worden uitgevoerd door de Directeur-Generaal van de PARTIJEN bij de GATT 1947.

• 2. De besluiten van die commissie worden op basis van éénstemmigheid genomen. Alle partijen kunnen bovendien gebruik maken van de clausule inzake niet-toepassing van lid 11 van artikel XXIV.

Besluit inzake de toepassing en toetsing van het Memorandum van Overeenstemming inzake de regels en procedures betreffende de beslechting van geschillen

De Ministers,

Herinnerend aan het besluit van 22 februari 1994 dat de bestaande regels en procedures van de GATT-Overeenkomst van 1947 op het gebied van de beslechting van geschillen van kracht blijven tot de datum van inwerkingtreding van de Overeenkomst tot oprichting van de Wereldhandelsorganisatie,

Nodigen de desbetreffende Raden en Commissies uit te besluiten dat zij hun werkzaamheden blijven voortzetten ten einde een geschil ten aanzien waarvan het verzoek om overleg vóór die datum werd ingediend, te kunnen behandelen;

Nodigen de Ministeriële Conferentie uit binnen vier jaar na de inwerkingtreding van de Overeenkomst tot oprichting van de Wereldhandelsorganisatie over te gaan tot een volledige toetsing van de WTO-regels en -procedures voor de beslechting van geschillen, en op haar eerste bijeenkomst na de voltooiing van de toetsing te besluiten of deze regels en procedures voor de beslechting van geschillen zullen worden voortgezet, gewijzigd of beëindigd.

Memorandum van Oovereenstemming inzake verbintenissen betreffende financiële diensten

De deelnemers aan de Uruguay-Ronde werden in staat gesteld om in het kader van de Algemene Overeenkomst inzake de handel in diensten (hierna „de Overeenkomst” genoemd) specifieke verbintenissen betreffende financiële diensten aan te gaan op basis van een afwijkende benadering van die welke is voorzien in de bepalingen van deel III van de Overeenkomst. Overeengekomen werd dat deze benadering op de volgende voorwaarden kan worden toegepast:

• i. zij is niet strijdig met de bepalingen van de Overeenkomst;

• ii. zij laat het recht van de Leden om hun specifieke verbintenissen overeenkomstig de methode van deel III van de Overeenkomst in een lijst op te nemen, onverlet;

• iii. de hieruit voortvloeiende specifieke verbintenissen worden op basis van het beginsel van meestbegunstiging toegepast;

• iv. zij geen vermoeden heeft doen rijzen aangaande de mate van liberalisering waartoe een Lid zich krachtens de Overeenkomst verbindt.

Leden die hiervoor belangstelling hebben, hebben op basis van onderhandelingen en met inachtneming van eventueel gespecificeerde voorwaarden en beperkingen op hun lijsten specifieke verbintenissen opgenomen overeenkomstig de hierna volgende aanpak.

A. Standstill

Alle voorwaarden en beperkingen ten aanzien van de onderstaande verbintenissen zijn beperkt tot bestaande niet-conforme maatregelen.

B. Markttoegang

Monopolierechten

• 1. In aanvulling op artikel VIII van de Overeenkomst geldt het volgende:

  Ieder Lid neemt in zijn op financiële diensten betrekking hebbende lijst de bestaande monopolierechten op en tracht deze op te heffen of hun toepassingsgebied te verkleinen. In afwijking van de bepalingen van punt 1, onder b., van de Bijlage betreffende financiële diensten is deze paragraaf van toepassing op de in punt 1, onder b. iii., van de Bijlage genoemde activiteiten.

Door openbare lichamen aangekochte financiële diensten

• 2. In afwijking van artikel XIII van de Overeenkomst verzekert ieder Lid dat aan op zijn grondgebied gevestigde financiële dienstverleners van ieder ander Lid voor wat de aankoop of verwerving van financiële diensten door openbare lichamen van het Lid op zijn grondgebied betreft behandeling van meestbegunstigde natie of nationale behandeling wordt toegekend.

Grensoverschrijdende handel

• 3. Ieder Lid staat niet-ingezeten financiële dienstverleners toe om als opdrachtgever, via een tussenpersoon of als tussenpersoon onder voorwaarden van nationale behandeling de volgende diensten te verlenen:

  • a. verzekering van risico's in verband met:

    • i. zeescheepvaart, commerciële luchtvaart, lancering van en vrachtvervoer middels ruimtevaartuigen (satellieten inbegrepen) waarbij het volgende volledig of gedeeltelijk wordt gedekt: de vervoerde goederen, het voertuig waarmee de goederen worden vervoerd en de daaruit voortvloeiende aansprakelijkheid; en

    • ii. het internationaal douanevervoer van goederen;

  • b. herverzekering, retrocessie en ondersteunende verzekeringsdiensten als bedoeld in punt 5, onder a. iv. van de Bijlage;

  • c. verstrekking en overdracht van financiële informatie en verwerking van financiële gegevens als bedoeld in punt 5, onder a. xv. van de Bijlage en advies- en andere ondersteunende diensten, met uitsluiting van bemiddeling, ten behoeve van bancaire en andere financiële diensten als bedoeld in punt 5, onder a. xvi., van de Bijlage.

• 4. Ieder Lid staat zijn ingezetenen toe om op het grondgebied van ieder ander Lid de diensten aan te kopen die zijn aangegeven in:

  • a. punt 3, onder a.;

  • b. punt 3, onder b.; en

  • c. punt 5, onder a., v. tot en met xvi, van de Bijlage.

Commerciële aanwezigheid

• 5. Ieder Lid verleent financiële dienstverleners van ieder ander Lid het recht om op zijn grondgebied commerciële aanwezigheid tot stand te brengen of deze aanwezigheid uit te breiden, mede door overname van bestaande ondernemingen.

• 6. Een Lid kan voorwaarden en procedures opleggen voor de toestemming tot commerciële aanwezigheid en uitbreiding van commerciële aanwezigheid, voor zover deze de verplichting van het Lid krachtens punt 5 niet omzeilen en verenigbaar zijn met de andere uit de Overeenkomst voortvloeiende verplichtingen.

Nieuwe financiële diensten

• 7. Een Lid staat op zijn grondgebied gevestigde financiële dienstverleners van ieder ander Lid toe om op zijn grondgebied nieuwe financiële diensten aan te bieden.

Overdracht en verwerking van informatie

• 8. Geen Lid neemt maatregelen die overdrachten of verwerking van financiële informatie, met inbegrip van overdrachten van gegevens via elektronische middelen, beletten of die, met inachtneming van met internationale overeenkomsten verenigbare invoerregels, overdrachten van apparatuur beletten, wanneer die overdrachten van informatie, verwerking van financiële informatie of overdrachten van apparatuur noodzakelijk zijn voor de normale bedrijfsvoering van een financiële dienstverlener. Niets in dit punt perkt het recht van een Lid in om persoonlijke gegevens, de persoonlijke levenssfeer en de vertrouwelijkheid van persoonlijke bescheiden te beschermen, zo lang dit recht niet wordt gebruikt om de bepalingen van de Overeenkomst te omzeilen.

Tijdelijke toelating van personeel

• 9.

  • a. Ieder Lid staat de tijdelijke toelating op zijn grondgebied toe van het volgende personeel van een financiële dienstverlener van een ander Lid die doende is op het grondgebied van het Lid commerciële aanwezigheid tot stand te brengen of deze tot stand gebracht heeft:

    • i. hoger managementpersoneel dat in het bezit is van gepatenteerde informatie die essentieel is voor de ontwikkeling van, de controle op en het verrichten van de diensten van de financiële dienstverlener; en

    • ii. specialisten op het gebied van de door de financiële dienstverlener verrichte diensten.

  • b. Ieder Lid staat, afhankelijk van de beschikbaarheid van geschikt personeel op zijn grondgebied, de tijdelijke toelating op zijn grondgebied toe van het volgende bij de commerciële aanwezigheid van een financiële dienstverlener van een ander Lid betrokken personeel:

    • i. specialisten op het gebied van computerdiensten, telecommunicatiediensten en boekhouding van de financiële dienstverlener; en

    • ii. specialisten op het gebied van actuariële en juridische zaken.

Niet-discriminerende maatregelen

• 10. Ieder Lid streeft naar de opheffing of beperking van substantiële nadelige gevolgen voor de financiële dienstverleners van een ander Lid van:

  • a. niet-discriminerende maatregelen die financiële-dienstverleners beletten om op het grondgebied van het Lid in de door hem bepaalde vorm alle door het Lid toegestane financiële diensten aan te bieden

  • b. niet-discriminerende maatregelen die uitbreiding van de activiteiten van financiële dienstverleners tot het gehele grondgebied van het Lid beperken

  • c. maatregelen van een Lid, wanneer dat Lid dezelfde maatregelen op zowel bankdiensten als diensten betreffende effecten toepast en een financiële dienstverlener van een ander Lid zijn activiteiten op de verlening van diensten betreffende effectendiensten concentreert en

  • d. andere maatregelen die, hoewel zij de bepalingen van de Overeenkomst eerbiedigen, afbreuk doen aan het vermogen van de financiële dienstverleners van een ander Lid om op de markt van het Lid actief te zijn, te concurreren of deze te betreden

    mits op grond van dit punt getroffen maatregelen geen oneerlijke discriminatie vormen van de financiële dienstverleners van het Lid dat deze maatregelen neemt.

• 11. Wat de onder de punten 10 a. en b. genoemde niet-discriminerende maatregelen aangaat, streeft een Lid ernaar om het bestaande niveau van marktkansen en de reeds door financiële dienstverleners van alle andere Leden als categorie op het grondgebied van het Lid genoten voordelen niet te beperken, op voorwaarde dat deze verbintenis niet leidt tot oneerlijke discriminatie van de financiële dienstverleners van het Lid dat de maatregelen neemt.

C. Nationale behandeling

• 1. Ieder Lid verleent onder de voorwaarden voor de toekenning van nationale behandeling aan op zijn grondgebied gevestigde financiële dienstverleners van andere Leden toegang tot door openbare lichamen geëxploiteerde betalings- en verrekeningssystemen alsmede tot voor normale zakelijke transacties beschikbare officiële financierings- en herfinancieringsfaciliteiten. Dit punt beoogt geen toegang te verschaffen tot de faciliteiten van geldschieter in laatste instantie van een Lid.

• 2. Wanneer het lidmaatschap van of deelneming in, dan wel de toegang tot een autonome instantie, effecten- of termijnbeurs of effecten- of termijnmarkt, verrekenkantoor of een andere organisatie of vereniging door een Lid wordt vereist opdat financiële dienstverleners van enig ander Lid op voet van gelijkheid met de financiële dienstverleners van dat Lid financiële diensten kunnen verlenen of wanneer het Lid deze instanties direct of indirect voorrechten of voordelen voor de verlening van financiële diensten toekent dan waarborgt het Lid dat die instanties nationale behandeling toekennen aan financiële dienstverleners van andere Leden die ingezetenen van het grondgebied van het Lid zijn.

D. Definities

Voor de toepassing van deze benadering:

• 1. Is een niet-ingezeten leverancier van financiële diensten een financiële dienstverlener van een Lid die een financiële dienst op het grondgebied van een ander Lid levert vanuit een vestiging op het grondgebied van een ander Lid, ongeacht of deze financiële dienstverlener al dan niet commercieel aanwezig is op het grondgebied van het Lid waar de financiële dienst wordt verleend.

• 2. Betekent „commerciële aanwezigheid” een zich voor het verlenen van financiële diensten op het grondgebied van een Lid bevindende onderneming, omvattende dochtermaatschappijen in volledige of gedeeltelijke eigendom, joint-ventures, partnerschappen, eenmanszaken, franchising-operaties, filialen, agentschappen, vertegenwoordigingskantoren of andere organisaties.

• 3. Is een nieuwe financiële dienst een dienst van financiële aard, met inbegrip van diensten met betrekking tot bestaande en nieuwe produkten of de manier waarop een produkt wordt geleverd, die niet door enige financiële dienstverlener op het grondgebied van een bepaald Lid wordt verstrekt, maar op het grondgebied van een ander Lid wordt verstrekt.

1. The body concerned shall be deemed to have decided by consensus on a matter submitted for its consideration, if no Member, present at the meeting when the decision is taken, formally objects to the proposed decision. ^ [1]
2. The number of votes of the European Communities and their member States shall in no case exceed the number of the member States of the European Communities. ^ [2]
3. Decisions by the General Council when convened as the Dispute Settlement Body shall be taken only in accordance with the provisions of paragraph 4 of Article 2 of the Dispute Settlement Understanding. ^ [3]
4. A decision to grant a waiver in respect of any obligation subject to a transition period or a period for staged implementation that the requesting Member has not performed by the end of the relevant period shall be taken only by consensus. ^ [4]
5. A decision to grant a waiver in respect of any obligation subject to a transition period or a period for staged implementation that the requesting Member has not performed by the end of the relevant period shall be taken only by consensus. ^ [5]
6. The waivers convered by this provision arc listed in footnote 7 on pages 11 and 12 in Part II of document MTN/FA of 15 December 1993 and in MTN/FA/ Corr.6 of 21 March 1994. The Ministerial Conference shall establish at its first session a revised list of waivers convered by this provision that adds any waivers granted under GATT 1947 after 15 December 1993 and before the date of entry into force of the WTO Agreement, and deletes the waivers which will have expired by that time. ^ [6]
7. The activities of this working party shall be coordinated with those of the working group provided for in Section III of the Ministerial Decision on Notification Procedures adopted on 15 April 1994. ^ [7]
8. Nothing in this Understanding is intended to modify the rights and obligations of Members under Articles XII or XVIII:B of GATT 1994. The provisions of Articles XXII and XXIII of GATT 1994 as elaborated and applies by the Dispute Settlement Understanding may be invoked with respect to any matters arising from the application of restrictive import measures taken for balance-of-payments purposes. ^ [8]
9. These measures include quantitative import restrictions, variable import levies, minimum import prices, discretionary import licensing, non-tariff measures maintained through state-trading enterprises, voluntary export restraints, and similar border measures other than ordinary customs duties, whether or not the measures are maintained under country-specific derogations from the provisions of GATT 1947, but not measures maintained under balance-of-payments provisions or under other general, non-agriculture-specific provisions of GATT 1994 or of the other Multilateral Trade Agreements in Annex 1A to the WTO Agreement. ^ [9]
10. The reference price used to invoke the provisions of this subparagraph shall, in general, be the average c.i.f. unit value of the product concerned, or otherwise shall be an appropriate price in terms of the quality of the product and its stage of processing. It shall, following its initial use, be publicly specified and available to the extent necessary to allow other Members to assess the additional duty that may be levied. ^ [10]
11. Where domestic consumption is not taken into account, the base trigger level under subparagraph 4a) shall apply. ^ [11]
12. "Countervailing duties" where referred to in this Article are those covered by Article VI of GATT 1994 and Part V of the Agreement on Subsidies and Countervailing Measures. ^ [12]
13. The product descriptions in brackets are not necessarily exhaustive. ^ [13]
14. For the purposes of paragraph 3 of this Annex, governmental stockholding programmes for food security purposes in developing countries whose operation is transparent and conducted in accordance with officially published objective criteria or guidelines shall be considered to be in conformity with the provisions of this paragraph, including programmes under which stocks of foodstuffs for food security purposes are acquired and released at administered prices, provided that the difference between the acquisition price and the external reference price is accounted for in the AMS. ^ [14]
15. For the purposes of paragraphs 3 and 4 of this Annex, the provision of foodstuffs at subsidized prices with the objective of meeting food requirements of urban and rural poor in developing countries on a regular basis at reasonable prices shall be considered to be in conformity with the provisions of this paragraph ^ [15]
16. In this Agreement, reference to Article XXb) includes also the chapeau of that Article. ^ [16]
17. For the purposes of paragraph 3 of Article 3, there is a scientific justification if, on the basis of an examination and evaluation of available scientific information in conformity with the relevant provisions of this Agreement, a Member determines that the relevant international standards, guidelines or recommendations are not sufficient to achieve its appropriate level of sanitary of phytosanitary protection. ^ [17]
18. For purposes of paragraph 6 of Article 5, a measure is not more trade-restrictive than required unless there is another measure, reasonably available taking into account technical and economic feasibility that achieves the appropriate level of sanitary or phytosanitary protection and is significantly less restrictive to trade. ^ [18]
19. For the purpose of these definitions "animal" includes fish and wild fauna; "plant" includes forests and wild flora; "pests" include weeds; and "contaminants" include pesticide and veterinary drug residues and extraneous matter. ^ [19]
20. Sanitary and phytosanitary measures such as laws, decrees or ordinances which arc applicable generally. ^ [20]
21. When “nationals” are referred to in this Agreement, the term shall be deemed, in the case of a separate customs territory Member of the WTO, to mean persons, natural or legal, who are domiciled or who have a real and effective industrial of commercial establishment in that customs territory. ^ [21]
22. Control, inspection and approval procedures include, inter alia, procedures for sampling, testing and certification. ^ [22]
23. To the extent possible, exports from a least-developed country Member may also benefit from this provision. ^ [23]
24. The "agreement year" is defined to mean a 12-month period beginning from the date of entry into force of the WTO Agreement and at the subsequent 12 month intervals. ^ [24]
25. The relevant GATT 1994 provisions shall not include Article XIX in respect of products not yet integrated into GATT 1994, except as specifically provided in paragraph 3 of the Annex. ^ [25]
26. Restrictions denote all unilateral quantitative restrictions, bilateral arrangement and other measures having a similar effect. ^ [26]
27. A customs union may apply a safeguard measure as a single unit or on behalf of a member State. When a customs union applies a safeguard measure as a single unit, all the requirements for the determination of serious damage or actual threat thereof under this Agreement shall be based on the conditions existing in the customs union as a whole. When a safeguard measure is applied on behalf of a member State, all the requirements for the determination of serious damage, or actual threat thereof, shall be based on the conditions existing in that member State and the measure shall be limited to that member State. ^ [27]
28. Such an imminent increase shall be a measurable one and shall not be determined to exist on the basis of allegation, conjecture or mere possibility arising, for example, from the existence of production capacity in the exporting Members. ^ [28]
29. "Nationals" here shall be deemed, in the case of a separate customs territory Member of the WTO, to mean persons, natural or legal, who are domiciled or who have a real and effective industrial or commercial establishment in that customs territory. ^ [29]
30. In the case of TRIMs applied under discretionary authority, each specific application shall be notified. Information that would prejudice the legitimate commercial interests of particular enterprises need not be disclosed. ^ [30]
31. The term "initiated" as used in this Agreement means the procedural action by which a Member formally commences an investigation as provided in Article 5. ^ [31]
32. Sales of the like product destined for consumption in the domestic market of the exporting country shall normally be considered a sufficient quantity for the determination of the normal value if such sales constitute 5 per cent or more of the sales of the product under consideration to the importing Member, provided that a lower ratio should be acceptable where the evidence demonstrates that domestic sales at such lower ratio are nonetheless of sufficient magnitude to provide for a proper comparison. ^ [32]
33. When in this Agreement the term "authorities" is used, it shall be interpreted as meaning authorities at an appropriate senior level. ^ [33]
34. The extended period of time should normally be one year but shall in no case be less than six months. ^ [34]
35. Sales below per unit costs are made in substantial quantities when the authorities establish that the weighted average selling price of the transactions under consideration for the determination of the normal value is below the weighted average per unit costs, or that the volume of sales below per unit costs represents not less than 20 per cent of the volume sold in transactions under consideration for the determination of the normal value. ^ [35]
36. The adjustment made for start-up operations shall reflect the costs at the end of the start-up period or, if that period extends beyond the period of investigation, the most recent costs which can reasonably be taken into account by the authorities during the investigation. ^ [36]
37. It is understood that some of the above factors may overlap, and authorities shall ensure that they do not duplicate adjustments that have been already made under this provision. ^ [37]
38. Normally, the date of sale would be the date of contract, purchase order, order confirmation, or invoice, whichever establishes the material terms of sale. ^ [38]
39. Under this Agreement the term "injury" shall, unless otherwise specified, be taken to mean material injury to a domestic industry, threat of material injury to a domestic industry or material retardation of the establishment of such an industry and shall be interpreted in accordance with the provisions of this Article. ^ [39]
40. One example, though not an exclusive one, is that there is convincing reason to believe that there will be, in the near future, substantially increased importation of the product at dumped prices. ^ [40]
41. For the purpose of this paragraph, producers shall be deemed to be related to exporters or importers only if a) one of them directly or indirectly controls the other; or b) both of them are directly or indirectly controlled by a third person; or c) together they directly or indirectly control a third person, provided that there are grounds for believing or suspecting that the effect of the relationship is such as to cause the producer concerned to behave differently from non-related producers. For the purpose of this paragraph, one shall be deemed to control another when the former is legally or operationally in a position to exercise restraint or direction over the latter. ^ [41]
42. As used in this Agreement "levy" shall mean the definitive or final legal assessment or collection of a duty or tax. ^ [42]
43. In the case of fragmented industries involving an exceptionally large number of producers, authorities may determine support and opposition by using statistically valid sampling techniques. ^ [43]
44. Members are aware that in the territory of certain Members employees of domestic producers of the like product or representatives of those employees may make or support an application for an investigation under paragraph 1. ^ [44]
45. As a general rule the time-limit for exporters shall be counted from the date of receipt of the questionnaire, which for this purpose shall be deemed to have been received one week from the date on which it was sent to the respondent or transmitted to the appropriate diplomatic representative of the exporting Member or, in the case of a separate customs territory Member of the WTO, an official representative of the exporting territory ^ [45]
46. It being understood that, where the number of exporters involved is particularly high, the full text of the written application should instead be provided only to the authorities of the exporting Member or to the relevant trade association. ^ [46]
47. Members are aware that in the territory of certain Members disclosure pursuant to a narrowly-drawn protective order may be required. ^ [47]
48. Members agree that requests for confidentiality should not be arbitrarily rejected. ^ [48]
49. The word "may" shall not be interpreted to allow the simultaneous continuation of proceedings with the implementation of price undertakings except as provided in paragraph 4. ^ [49]
50. It is understood that the observance of the time-limits mentioned in this subparagraph and in subparagraph 3.2 may not be possible where the product in question is subject to judicial review proceedings. ^ [50]
51. A determination of final liability for payment of anti-dumping duties, as provided for in paragraph 3 of Article 9, does not by itself constitute a review within the meaning of this Article. ^ [51]
52. When the amount of the anti-dumping duty is assessed on a retrospective basis, a finding in the most recent assessment proceeding under subparagraph 3.1 of Article 9 that no duty is to be levied shall not by itself require the authorities to terminate the definitive duty. ^ [52]
53. Where authorities provide information and explanations under the provisions of this Article in a separate report, they shall ensure that such report is readily available to the public. ^ [53]
54. This is not intended to preclude action under other relevant provisions of GATT 1994, as appropriate. ^ [54]
55. It is understood that this provision does not obligate Members to allow government entities of other Members to conduct preshipment inspection activities on their territory. ^ [55]
56. An international standard is a standard adopted by a governmental or nongovernmental body whose membership is open to all Members, one of whose recognized activities is in the field of standardization. ^ [56]
57. It is understood that, for the purpose of this Agreement, "force majeure" shall mean " irresistible compulsion or coercion, unforeseeable course of events excusing from fulfilment of contract". ^ [57]
58. The obligations of user Members with respect to the services of preshipment inspection entities in connection with customs valuation shall be the obligations which they have accepted in GATT 1994 and the other Multilateral Trade Agreements included in Annex 1A of the WTO Agreement. ^ [58]
59. It is understood that such technical assistance may be given on a bilateral, plurilateral or multilateral basis. ^ [59]
60. It is understood that this provision is without prejudice to those determinations made for purposes of defining "domestic industry" or "like products of domestic industry" or similar terms wherever they apply. ^ [60]
61. With respect to rules of origin applied for the purposes of government procurement, this provision shall not create obligations additional to those already assumed by Members under GATT 1994. ^ [61]
62. In respect of requests made during the first year from the date of entry into force of the WTO Agreement, Members shall only be required to issue these assessments as soon as possible. ^ [62]
63. If the ad valorem criterion is prescribed, the method for calculating this percentage shall also be indicated in the rules of origin. ^ [63]
64. If the criterion of manufacturing or processing operation is prescribed, the operation that confers origin on the product concerned shall be precisely specified. ^ [64]
65. At the same time, consideration shall be given to arrangements concerning the settlement of disputes relating to customs classification. ^ [65]
66. In respect of requests made during the first year from entry into force of the WTO Agreement, Members shall only be required to issue these assessments as soon as possible. ^ [66]
67. Those procedures referred to as "licensing" as well as other similar administrative procedures. ^ [67]
68. Nothing in this Agreement shall be taken as implying that the basis, scope or duration of a measure being implemented by a licensing procedure is subject to question under this Agreement. ^ [68]
69. For the purpose of this Agreement, the term "governments" is deemed to include the competent authorities of the European Communities. ^ [69]
70. Those import licensing procedures requiring a security which have no restrictive effects on imports are to be considered as falling within the scope of paragraphs 1 and 2. ^ [70]
71. A developing country Member, other than a developing country Member which was a Party to the Agreement on Import Licensing Procedures done on 12 April 1979, which has specific difficulties with the requirements of subparagraphs a)ii) and a)iii) may, upon notification to the Committee, delay the application of these subparagraphs by not more than two years from the date of entry into force of the WTO Agreement for such Member, ^ [71]
72. Sometimes referred to as "quota holders". ^ [72]
73. Originally circulated as GATT 1947 document L/3515 of 23 March 1971. ^ [73]
74. In accordance with the provisions of Article XVI of GATT 1994 (Note to Article XVI) and the provisions of Annexes I through III of this Agreement, the exemption of an exported product form duties or taxes borne by the like product when destined for domestic consumption, or the remission of such duties or taxes in amounts not in excess of those which have accrued, shall not be deemed to be a subsidy. ^ [74]
75. Objective criteria or conditions, as used herein, mean criteria or conditions which are neutral, which do not favour certain enterprises over others, and which are economic in nature and horizontal in application, such as number of employees or size of enterprise. ^ [75]
76. In this regard, in particular, information on the frequency with which applications for a subsidy are refused or approved and the reasons for such decisions shall be considered. ^ [76]
77. This standard is met when the facts demonstrate that the granting of a subsidy, without having been made legally contingent upon export performance, is in fact tied to actual or anticipated exportation or export earnings. The mere fact that a subsidy is granted to enterprises which export shall not for that reason alone be considered to be an export subsidy within the meaning of this provision. ^ [77]
78. Measures referred to in Annex I as not constituting export subsidies shall not be prohibited under this or any other provision of this Agreement. ^ [78]
79. Any time-periods mentioned in this Article may be extended by mutual agreement. ^ [79]
80. As established in Article 24. ^ [80]
81. If a meeting of the DSB is not scheduled during this period, such a meeting shall be held for this purpose. ^ [81]
82. This expression is not meant to allow countermeasures that are disproportionate in light of the fact that the subsidies dealt with under these provisions are prohibited. ^ [82]
83. This expression is not meant to allow countermeasures that are disproportionate in light of the fact that the subsidies dealt with under these provisions are prohibited. ^ [83]
84. The term "injury to the domestic industry" is used here in the same sense as it is used in Part V. ^ [84]
85. The term "nullification or impairment" is used in this Agreement in the same sense as it is used in the relevant provisions of GATT 1994, and the existence of such nullification or impairment shall be established in accordance with the practice of application of these provisions. ^ [85]
86. The term "serious prejudice to the interests of another Member" is used in this Agreement in the same sense as it is used in paragraph 1 of Article XVI of GATT 1994, and includes threat of serious prejudice. ^ [86]
87. The total ad valorem subsidization shall be calculated in accordance with the provisions of Annex IV. ^ [87]
88. Since it is anticipated that civil aircraft will be subject to specific multilateral rules, (the threshold in this subparagraph does not apply to civil aircraft. ^ [88]
89. Members recognize that where royalty-based financing for a civil aircraft programme is not being fully repaid due to the level of actual sales falling below the level of forecast sales, this does not in itself constitute serious prejudice for the purposes of this subparagraph. ^ [89]
90. Unless other multilaterally agreed specific rules apply to the trade in the product or commodity in question. ^ [90]
91. The fact that certain circumstances are referred to in this paragraph does not, in itself, confer upon them any legal status in terms of either GATT 1994 or this Agreement. These circumstances must not be isolated, sporadic or otherwise insignificant. ^ [91]
92. In the event that the request relates to a subsidy deemed to result in serious prejudice in terms of paragraph 1 of Article 6, the available evidence of serious prejudice may be limited to the available evidence as to whether the conditions of paragraph 1 of Article 6 have been met or not. ^ [92]
93. Any time-periods mentioned in this Article may be extended by mutual agreement. ^ [93]
94. If a meeting of the DSB is not scheduled during this period, such a meeting shall be held for this purpose. ^ [94]
95. If a meeting of the DSB is not scheduled during this period, such a meeting shall be held for this purpose. ^ [95]
96. It is recognized that government assistance for various purposes is widely provided by Members and that the mere fact that such assistance may not qualify for non-actionable treatment under the provisions of this Article does not in itself restrict the ability of Members to provide such assistance. ^ [96]
97. Since it is anticipated that civil aircraft will be subject to specific multilateral rules, the provisions of this subparagraph do not apply to that product. ^ [97]
98. Not later than 18 months after the date of entry into force of the WTO Agreement, the Committee on Subsidies and Countervailing Measures provided for in Article 24 (referred to in this Agreement as "the Committee") shall review the operation of the provisions of subparagraph 2a) with a view to making all necessary modifications to improve the operation of these provisions. In its consideration of possible modifications, the Committee shall carefully review the definitions of the categories set forth in this subparagraph in the light of the experience of Members in the operation of research programmes and the work in other relevant international institutions. ^ [98]
99. The provisions of this Agreement do not apply to fundamental research activities independently conducted by higher education or research establishments. The term "fundamental research" means an enlargement of general scientific and technical knowledge not linked to industrial or commercial objectives. ^ [99]
100. The allowable levels of non-actionable assistance referred to in this subparagraph shall be established by reference to the total eligible costs incurred over the duration of an individual project. ^ [100]
101. The term "industrial research" means planned search or critical investigation aimed at discovery of new knowledge, with the objective that such knowledge may be useful in developing new products, processes or services, or in bringing about a significant improvement to existing products, processes or services. ^ [101]
102. The term "pre-competitive development activity" means the translation of industrial research findings into a plan, blueprint or design for new, modified or improved products, processes or services whether intended for sale or use, including the creation of a first prototype which would not be capable of commercial use. It may further include the conceptual formulation and design of products, processes or services alternatives and initial demonstration or pilot projects, provided that these same projects cannot be converted or used for industrial application or commercial exploitation. It does not include routine or periodic alterations to existing products, production lines, manufacturing processes, services, and other on-going operations even though those alterations may represent improvements. ^ [102]
103. In the case of programmes which span industrial research and pre-competitive development activity, the allowable level of non-actionable assistance shall not exceed the simple average of the allowable levels of non-actionable assistance applicable to the above two categories, calculated on the basis of all eligible costs as set forth in items i) to v) of this subparagraph. ^ [103]
104. A "general framework of regional development" means that regional subsidy programmes are part of an internally consistent and generally applicable regional development policy and that regional development subsidies are not granted in isolated geographical points having no, or virtually no, influence on the development of a region. ^ [104]
105. "Neutral and objective criteria" means criteria which do not favour certain regions beyond what is appropriate for the elimination or reduction of regional disparities within the framework of the regional development policy. In this regard, regional subsidy programmes shall include ceilings on the amount of assistance which can be granted to each subsidized project. Such ceilings must be differentiated according to the different levels of development of assisted regions and must be expressed in terms of investment costs or cost of job creation. Within such ceilings, the distribution of assistance shall be sufficiently broad and even to avoid the predominant use of a subsidy by, or the granting of disproportionately large amounts of subsidy to, certain enterprises as provided for in Article 2. ^ [105]
106. The term "existing facilities" means facilities which have been in operation for at least two years at the time when new environmental requirements are imposed. ^ [106]
107. It is recognized that nothing in this notification provision requires the provision of confidential information, including confidential business information. ^ [107]
108. The provisions of Part II or III may be invoked in parallel with the provisions of Part V; however, with regard to the effects of a particular subsidy in the domestic market of the importing Member, only one form of relief (either a countervailing duty, if the requirements of Part V are met, or a countermeasure under Articles 4 or 7) shall be available. The provisions of Parts III and V shall not be invoked regarding measures considered non-actionable in accordance with the provisions of Part IV. However, measures referred to in paragraph 1a) of Article 8 may be investigated in order to determine whether or not they are specific within the meaning of Article 2. In addition, in the case of a subsidy referred to in paragraph 2 of Article 8 conferred pursuant to a programme which has not been notified in accordance with paragraph 3 of Article 8, the provisions of Part III or V may be invoked, but such subsidy shall be treated as non-actionable if it is found to conform to the standards set forth in paragraph 2 of Article 8. ^ [108]
109. The term "countervailing duty" shall be understood to mean a special duty levied for the purpose of offsetting any subsidy bestowed directly or indirectly upon the manufacture, production or export of any merchandise, as provided for in paragraph 3 of Article VI of GATT 1994. ^ [109]
110. The term "initiated" as used hereinafter means procedural action by which a Member formally commences an investigation as provided in Article 11. ^ [110]
111. In the case of fragmented industries involving an exceptionally large number of producers, authorities may determine support and opposition by using statistically valid sampling techniques. ^ [111]
112. Members are aware that in the territory of certain Members employees of domestic producers of the like product or representatives of those employees may make or support an application for an investigation under paragraph 1. ^ [112]
113. As a general rule, the time-limit for exporters shall be counted from the date of receipt of the questionnaire, which for this purpose shall be deemed to have been received one week from the date on which it was sent to the respondent or transmitted to the appropriate diplomatic representatives of the exporting Member or, in the case of a separate customs territory Member of the WTO, an official representative of the exporting territory. ^ [113]
114. It being understood that where the number of exporters involved is particularly high, the full text of the application should instead be provided only to the authorities of the exporting Member or to the relevant trade association who then should forward copies to the exporters concerned. ^ [114]
115. Members are aware that in the territory of certain Members disclosure pursuant to a narrowly-drawn protective order may be required. ^ [115]
116. Members agree that requests for confidentiality should not be arbitrarily rejected. Members further agree that the investigating authority may request the waiving of confidentiality only regarding information relevant to the proceedings. ^ [116]
117. It is particularly important, in accordance with the provisions of this paragraph, that no affirmative determination whether preliminary or final be made without reasonable opportunity for consultations having been given. Such consultations may establish the basis for proceeding under the provisions of Part II, III or X. ^ [117]
118. Under this Agreement the term "injury" shall, unless otherwise specified, be taken to mean material injury to a domestic industry, threat of material injury to a domestic industry or material retardation of the establishment of such an industry and shall be interpreted in accordance with the provisions of this Article. ^ [118]
119. Throughout this Agreement the term "like product" ("produit similaire") shall be interpreted to mean a product which is identical, i.e. alike in all respects to the product under consideration, or in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration. ^ [119]
120. As set forth in paragraphs 2 and 4. ^ [120]
121. For the purpose of this paragraph, producers shall be deemed to be related to exporters or importers only if a) one of them directly or indirectly controls the other; or b) both of them are directly or indirectly controlled by a third person; or c) together they directly or indirectly control a third person, provided that there are grounds for believing or suspecting that the effect of the relationship is such as to cause the producer concerned to behave differently from non-related producers. For the purpose of this paragraph, one shall be deemed to control another when the former is legally or operationally in a position to exercise restraint or direction over the latter. ^ [121]
122. The word "may" shall not be interpreted to allow the simultaneous continuation of proceedings with the implementation of undertakings, except as provided in paragraph 4. ^ [122]
123. For the purpose of this paragraph, the term "domestic interested parties" shall include consumers and industrial users of the imported product subject to investigation. ^ [123]
124. As used in this Agreement "levy" shall mean the definitive or final legal assessment or collection of a duty or tax. ^ [124]
125. When the amount of the countervailing duty is assessed on a retrospective basis, a finding in the most recent assessment proceeding that no duty is to be levied shall not by itself require the authorities to terminate the definitive duty. ^ [125]
126. Where authorities provide information and explanations under the provisions of this Article in a separate report, they shall ensure that such report is readily available to the public. ^ [126]
127. The Committee shall establish a Working Party to review the contents and form of the questionnaire as contained in BISD 9S/193-194. ^ [127]
128. For a developing country Member not granting export subsidies as of the date of entry into force of the WTO Agreement, this paragraph shall apply on the basis of the level of export subsidies granted in 1986. ^ [128]
129. This paragraph is not intended to preclude action under other relevant provisions of GATT 1994, where appropriate. ^ [129]
130. The term "commercially available" means that the choice between domestic and imported products is unrestricted and depends only on commercial considerations. ^ [130]
131. For the purpose of this Agreement: The term "direct taxes" shall mean taxes on wages, profits, interests, rents, royalties, and all other forms of income, and taxes on the ownership of real property; The term "import charges" shall mean tariffs, duties, and other fiscal charges not elsewhere enumerated in this note that are levied on imports; The term "indirect taxes" shall mean sales, excise, turnover, value added, franchise, stamp, transfer, inventory and equipment taxes, border taxes and all taxes other than direct taxes and import charges; "Prior-stage" indirect taxes are those levied on goods or services used directly or indirectly in making the product; "Cumulative" indirect taxes are multi-staged taxes levied where there is no mechanism for subsequent crediting of the tax if the goods or services subject to tax at one stage of production are used in a succeeding stage of production; "Remission" of taxes includes the refund or rebate of taxes; "Remission or drawback" includes the full or partial exemption or deferral of import charges. ^ [131]
132. The Members recognize that deferral need not amount to an export subsidy where, for example, appropriate interest charges are collected. The Members reaffirm the principle that prices for goods in transactions between exporting enterprises and foreign buyers under their or under the same control should for tax purposes be the prices which would be charged between independent enterprises acting at arm's length. Any Member may draw the attention of another Member to administrative or other practices which may contravene this principle and which result in a significant saving of direct taxes in export transactions. In such circumstances the Members shall normally attempt to resolve their differences using the facilities of existing bilateral tax treaties or other specific international mechanisms, without prejudice to the rights and obligations of Members under GATT 1994, including the right of consultation created in the preceding sentence.Paragraph e) is not intended to limit a Member from taking measures to avoid the double taxation of foreign-source income earned by its enterprises or the enterprises of another Member. ^ [132]
133. For the purpose of this Agreement: The term "direct taxes" shall mean taxes on wages, profits, interests, rents, royalties, and all other forms of income, and taxes on the ownership of real property; The term "import charges" shall mean tariffs, duties, and other fiscal charges not elsewhere enumerated in this note that are levied on imports; The term "indirect taxes" shall mean sales, excise, turnover, value added, franchise, stamp, transfer, inventory and equipment taxes, border taxes and all taxes other than direct taxes and import charges; "Prior-stage" indirect taxes are those levied on goods or services used directly or indirectly in making the product; "Cumulative" indirect taxes are multi-staged taxes levied where there is no mechanism for subsequent crediting of the tax if the goods or services subject to tax at one stage of production are used in a succeeding stage of production; "Remission" of taxes includes the refund or rebate of taxes; "Remission or drawback" includes the full or partial exemption or deferral of import charges. ^ [133]
134. For the purpose of this Agreement: The term "direct taxes" shall mean taxes on wages, profits, interests, rents, royalties, and all other forms of income, and taxes on the ownership of real property; The term "import charges" shall mean tariffs, duties, and other fiscal charges not elsewhere enumerated in this note that are levied on imports; The term "indirect taxes" shall mean sales, excise, turnover, value added, franchise, stamp, transfer, inventory and equipment taxes, border taxes and all taxes other than direct taxes and import charges; "Prior-stage" indirect taxes are those levied on goods or services used directly or indirectly in making the product; "Cumulative" indirect taxes are multi-staged taxes levied where there is no mechanism for subsequent crediting of the tax if the goods or services subject to tax at one stage of production are used in a succeeding stage of production; "Remission" of taxes includes the refund or rebate of taxes; "Remission or drawback" includes the full or partial exemption or deferral of import charges. ^ [134]
135. Paragraph h) does not apply to value-added tax systems and border-tax adjustment in lieu thereof; the problem of the excessive remission of value-added taxes is exclusively covered by paragraph g). ^ [135]
136. The Members recognize that deferral need not amount to an export subsidy where, for example, appropriate interest charges are collected. The Members reaffirm the principle that prices for goods in transactions between exporting enterprises and foreign buyers under their or under the same control should for tax purposes be the prices which would be charged between independent enterprises acting at arm's length. Any Member may draw the attention of another Member to administrative or other practices which may contravene this principle and which result in a significant saving of direct taxes in export transactions. In such circumstances the Members shall normally attempt to resolve their differences using the facilities of existing bilateral tax treaties or other specific international mechanisms, without prejudice to the rights and obligations of Members under GATT 1994, including the right of consultation created in the preceding sentence. Paragraph e) is not intended to limit a Member from taking measures to avoid the double taxation of foreign-source income earned by its enterprises or the enterprises of another Member. ^ [136]
137. Inputs consumed in the production process are inputs physically incorporated, energy, fuels and oil used in the production process and catalysts which are consumed in the course of their use to obtain the exported product. ^ [137]
138. An understanding among Members should be developed, as necessary, on matters which are not specified in this Annex or which need further clarification for the purposes of paragraph 1a) of Article 6. ^ [138]
139. The recipient firm is a firm in the territory of the subsidizing Member. ^ [139]
140. In the case of tax-related subsidies the value of the product shall be calculated as the total value of the recipient firm's sales in the fiscal year in which the tax-related measure was earned. ^ [140]
141. Start-up situations include instances where financial commitments for product development or construction of facilities to manufacture products benefiting from the subsidy have been made, even though production has not begun. ^ [141]
142. In cases where the existence of serious prejudice has to be demonstrated. ^ [142]
143. The information-gathering process by the DSB shall take into account the need to protect information which is by nature confidential or which is provided on a confidential basis by any Member involved in this process. ^ [143]
144. The inclusion of developing country Members in the list in paragraph b) is based on the most recent data from the World Bank on GNP per capita. ^ [144]
145. A customs union may apply a safeguard measure as a single unit or on behalf of a member State. When a customs union applies a safeguard measure as a single unit, all the requirements for the determination of serious injury or threat thereof under this Agreement shall be based on the conditions existing in the customs union as a whole. When a safeguard measure is applied on behalf of a member State, all the requirements for the determination of serious injury or threat thereof shall be based on the conditions existing in that member State and the measure shall be limited to that member State. Nothing in this Agreement prejudges the interpretation of the relationship between Article XIX and paragraph 8 of Article XXIV of GATT 1994. ^ [145]
146. A Member shall immediately notify an action taken under paragraph 1 of Article 9 to the Committee on Safeguards. ^ [146]
147. An import quota applied as a safeguard measure in conformity with the relevant provisions of GATT 1994 and this Agreement may, by mutual agreement, be administered by the exporting Member. ^ [147]
148. Examples of similar measures include export moderation, export-price or import-price monitoring systems, export or import surveillance, compulsory import cartels and discretionary export or import licensing schemes, any of which afford protection. ^ [148]
149. The only such exception to which the European Communities is entitled is indicated in the Annex to this Agreement, ^ [149]
150. This condition is understood in terms of number of sectors, volume of trade affected and modes of supply. In order to meet this condition, agreements should not provide for the a priori exclusion of any mode of supply. ^ [150]
151. Typically, such integration provides citizens of the parties concerned with a right of free entry to the employment markets of the parties and includes measures concerning conditions of pay, other conditions of employment and social benefits. ^ [151]
152. The term “relevant international organizations” refers to international bodies whose membership is open to the relevant bodies of at least all Members of the WTO. ^ [152]
153. It is understood that the procedures under paragraph 5 shall be the same as the GATT 1994 procedures. ^ [153]
154. The public order exception may be invoked only where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society. ^ [154]
155. Measures that are aimed at ensuring the equitable or effective imposition or collection of direct taxes include measures taken by a Member under its taxation system which:

     • i) apply to non-resident service suppliers in recognition of the fact that the tax obligation of non-residents is determined with respect to taxable items sourced or located in the Member's territory; or

     • ii) apply to non-residents in order to ensure the impostion or collection of taxes in the Member's territory; or

     • iii) apply to non-residents or residents in order to prevent the avoidance or evasion of taxes, including compliance measures; or

     • iv) apply to consumers of services supplied in or from the territory of another Member in order to ensure the imposition or collection of taxes on such consumers derived from sources in the Member's territory; or

     • v) distinguish service suppliers subject to tax on worldwide taxable items from other service suppliers, in recognition of the difference in the nature of the tax base between them; or

     • vi) determine, allocate or apportion income, profit, gain, loss, deduction or credit of resident persons or branches, or between related persons or branches of the same person, in order to safeguard the Member's tax base.

     Tax terms or concepts in paragraph d) of Article XIV and in this footnote are determined according to tax definitions and concepts, or equivalent or similar definitions and concepts, under the domestic law of the member taking the measure. ^ [155]
156. A future work programme shall determine how, and in what time-frame, negotiations on such multilateral disciplines will be conducted. ^ [156]
157. If a Member undertakes a market-access commitment in relation to the supply of a service through the mode of supply referred to in subparagraph 2(a) of Article I and if the cross-border movement of capital is an essential part of the service itself, that Member is thereby committed to allow such movement of capital. If a Member undertakes a market-access commitment in relation to the supply of a service through the mode of supply referred to in subparagraph 2(c) of Article I, it is thereby committed to allow related transfers of capital into its territory. ^ [157]
158. Subparagraph 2c) does not cover measures of a Member which limit inputs for the supply of services. ^ [158]
159. Specific commitments assumed under this Article shall not be construed to require any member to compensate for any inherent competitive disadvantages which result from the foreign character of the relevant services or service supplies. ^ [159]
160. With respect to agreements on the avoidance of double taxation which exist on the date of entry into force of the WTO Agreement, such a matter may be brought before the Council for Trade in services only with the consent of both parties to such an agreement. ^ [160]
161. Where the service is not supplied directly by a juridical person but through other forms of commercial presence such as a branch or a representative office, the service supplier (i.e. the juridical person) shall, nonetheless, through such presence be accorded the treatment provided for service suppliers under the Agreement. Such treatment shall be extended to the presence through which the service is supplied and need not be extended to any other parts of the supplier located outside the territory where the service is supplied. ^ [161]
162. Deze lijsten zijn niet afgedrukt. ^ [162]
163. The sole fact of requiring a visa for natural persons of certain Members and not for those of others shall not be regarded as nullifying or impairing benefits under a specific commitment. ^ [163]
164. This paragraph is understood to mean that each Member shall ensure that the obligations of this Annex are applied with respect to suppliers or public telecommunications transport networks and services by whatever measures are necessary. ^ [164]
165. The term "non-discriminatory" is understood to refer to most-favoured-nation and national treatment as defined in the Agreement, as well as to reflect sector-specific usage of the term to mean "terms and conditions no less favourable than those accorded to any other user of like public telecommunications transport networks or services under like circumstances". ^ [165]
166. When “nationals” are referred to in this Agreement, they shall be deemed, in the case of a separate customs territory Member of the WTO, to mean persons, natural or legal, who are domiciled or who have a real and effective industrial or commercial establishment in that customs territory. ^ [166]
167. In this Agreement, “Paris Convention” refers to the Paris Convention for the Protection of Industrial Property; “Paris Convention (1967)” refers to the Stockholm Act of this Convention of 14 July 1967. “Berne Convention” refers to the Berne Convention for the Protection of Literary and Artistic Works; “Berne Convention (1971)” refers to the Paris Act of this Convention of 24 July 1971. "Rome Convention" refers to the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, adopted at Rome on 26 October 1961. “Treaty on Intellectual Property in Respect of Integrated Circuits” (IPIC Treaty) refers to the Treaty on Intellectual Property in Respect of Integrated Circuits, adopted at Washington on 26 May 1989. “WTO Agreement” refers to the Agreement Establishing the WTO. ^ [167]
168. For the purposes of Articles 3 and 4, “protection” shall include matters affecting the availability, acquisition, scope, maintenance and enforcement of intellectual property rights as well as those matters affecting the use of intellectual property rights specifically addressed in this Agreement. ^ [168]
169. Notwithstanding the first sentence of Article 42, members may, with respect to these obligations, instead provide for enforcement by administrative action. ^ [169]
170. For the purpose of this Article, the terms "inventive step" and "capable of industrial application" may be deemed by a Member to be synonymous with the terms "non-obvious" and "useful" respectively. ^ [170]
171. This right, like all other rights conferred under this Agreement in respect of the use, sale, importation or other distribution of goods, is subject to the provisions of Article 6. ^ [171]
172. "Other use" refers to use other than that allowed under Article 30. ^ [172]
173. It is understood that those Members which do not have a system of original grant may provide that the term of protection shall be computed from the filing date in the system of original grant. ^ [173]
174. The term "right holder" in this Section shall be understood as having the same meaning as the term "holder of the right" in the IPIC Treaty. ^ [174]
175. For the purpose of this provision, “a manner contrary to honest commercial practices” shall mean at least practices such as breach of contract, breach of confidence and inducement to breach, and includes the acquisition of undisclosed information by third parties who knew, or were grossly negligent in failing to know, that such practices were involved in the acquisition. ^ [175]
176. For the purpose of this Part, the term "right holder" includes federations and associations having legal standing to assert such rights. ^ [176]
177. Where a Member has dismantled substantially all controls over movement of goods across its border with another Member with which it forms part of a customs union, it shall not be required to apply the provisions of this Section at that border. ^ [177]
178. It is understood that there shall be no obligation to apply such procedures to imports of goods put on the market in another country by or with the consent of the right holder, or to goods in transit. ^ [178]
179. For the purposes of this Agreement:

     • a) "counterfeit trademark goods" shall mean any goods, including packaging, bearing without authorization a trademark which is identical to the trademark validly registered in respect of such goods, or which cannot be distinguished in its essential aspects from such a trademark, and which thereby infringes the rights of the owner of the trademark in question under the law of the country of importation;

     • b) "pirated copyright goods" shall mean any goods which are copies made without the consent of the right holder or person duly authorized by the right holder in the country of production and which are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country of importation.

     ^ [179]
180. This subparagraph is without prejudice to subparagraph 1b). ^ [180]
181. It is understood that this notification does not need to be approved by a WTO body in order to use the system. ^ [181]
182. Australia, Canada, the European Communities with, for the purposes of Article 31bis and this Annex, its member States, Iceland, Japan, New Zealand, Norway, Switzerland, and the United States. ^ [182]
183. Joint notifications providing the information required under this subparagraph may be made by the regional organizations referred to in paragraph 3 of Article 31bis on behalf of eligible importing Members using the system that are parties to them, with the agreement of those parties. ^ [183]
184. It is understood that this notification does not need to be approved by a WTO body in order to use the system. ^ [184]
185. The notification will be made available publicly by the WTO Secretariat through a page on the WTO website dedicated to the system. ^ [185]
186. This subparagraph is without prejudice to Article 66.1 of this Agreement. ^ [186]
187. The licensee may use for this purpose its own website or, with the assistance of the WTO Secretariat, the page on the WTO website dedicated to the system. ^ [187]
188. It is understood that this notification does not need to be approved by a WTO body in order to use the system. ^ [188]
189. The notification will be made available publicly by the WTO Secretariat through a page on the WTO website dedicated to the system. ^ [189]
190. The DSB shall be deemed to have decided by consensus on a matter submitted for its consideration, if no Member, present at the meeting of the DSB when the decision is taken, formally objects to the proposed decision. ^ [190]
191. This paragraph shall also be applied to disputes on which panel reports have not been adopted or fully implemented. ^ [191]
192. Where the provisions of any other covered agreement concerning measures taken by regional or local governments or authorities within the territory of a Member contain provisions different from the provisions of this paragraph, the provisions of such other covered agreement shall prevail. ^ [192]
193. The corresponding consultation provisions in the covered agreements are listed hereunder: Agreement on Agriculture, Article 19; Agreement on the Application of Sanitary and Phytosanitary Measures, paragraph 1 of Article 11; Agreement on Textiles and Clothing, paragraph 4 of Article 8; Agreement on Technical Barriers to Trade, paragraph 1 of Article 14; Agreement on Trade-Related Investment Measures, Article 8; Agreement on Implementation of Article VI of GATT 1994, paragraph 2 of Article 17; Agreement on Implementation of Article VII of GATT 1994, paragraph 2 of Article 19; Agreement on Preshipment Inspection, Article 7; Agreement on Rules of Origin, Article 7; Agreement on Import Licensing Procedures, Article 6; Agreement on Subsidies and Countervailing Measures, Article 30; Agreement on Safeguards, Article 14; Agreement on Trade-Related Aspects of Intellectual Property Rights, Article 64.1; and any corresponding consultation provisions in Plurilateral Trade Agreements as determined by the competent bodies of each Agreement and as notified to the DSB. ^ [193]
194. If the complaining party so requests, a meeting of the DSB shall be convened for this purpose within 15 days of the request, provided that at least 10 days' advance notice of the meeting is given. ^ [194]
195. In the case wherc customs unions or common markets are parties to a dispute, this provision applies to citizens of all member countries of the customs unions or common markets. ^ [195]
196. If a meeting of the DSB is not scheduled within this period at a time that enables the requirements of paragraphs 1 and 4 of Article 16 to be met, a meeting of the DSB shall be held for this purpose. ^ [196]
197. If a meeting of the DSB is not scheduled during this period, such a meeting of the DSB shall be held for this purpose. ^ [197]
198. The "Member concerned" is the party to the dispute to which the panel or Appellate Body recommendations are directed. ^ [198]
199. With respect to recommendations in cases not involving a violation of GATT 1994 or any other covered agreement, see Article 26. ^ [199]
200. If a meeting of the DSB is not scheduled during this period, such a meeting of the DSB shall be held for this purpose. ^ [200]
201. If the parties cannot agree on an arbitrator within ten days after referring the matter to arbitration, the arbitrator shall be appointed by the Director-General within ten days, after consulting the parties. ^ [201]
202. The expression "arbitrator" shall be interpreted as referring either to an individual or a group. ^ [202]
203. The list in document MTN.GNS/W/120 identifies eleven sectors. ^ [203]
204. The expression "arbitrator" shall be interpreted as referring cither to an individual or a group. ^ [204]
205. The expression "arbitrator" shall be interpreted as referring either to an individual or a group or to the members of the original panel when serving in the capacity of arbitrator. ^ [205]
206. Where the provisions of any covered agreement concerning measures taken by regional or local governments or authorities within the territory of a Member contain provisions different from the provisions of this paragraph, the provisions of such covered agreement shall prevail. ^ [206]
207. Van de op 12 april 1979 te Genève tot stand gekomen Overeenkomst betreffende handel in burgerluchtvaartuigen zijn de Engelse en de Franse tekst geplaatst in Trb. 1980, 20 en de vertaling in het Nederlands in Trb. 1980, 128; zie ook, laatstelijk, Trb. 1988, 59. Voor het op 17 januari 1983 te Genève tot stand gekomen Eerste Certificaat van wijziging en verbetering van de Bijlage bij de Overeenkomst zie rubriek J van Trb. 1983, 129. Van het op 2 december 1986 te Genève tot stand gekomen Protocol van 1986 tot wijziging van de Bijlage bij de Overeenkomst zijn de Engelse en de Franse tekst geplaatst in Trb. 1988, 60. ^ [207]
208. This list does not alter existing notification requirements in the Multilateral Trade Agreements in Annex 1A to the WTO Agreement or, where applicable, the Pluriteral Trade Agreement in Annex 4 of the WTO Agreement. ^ [208]
209. Het betrokken orgaan wordt geacht bij consensus een besluit te hebben genomen omtrent een daaraan voorgelegde aangelegenheid als geen enkel Lid dat aanwezig is op de bijeenkomst waarop het besluit wordt genomen, formeel bezwaar maakt tegen het voorgestelde besluit. ^ [209]
210. Het aantal stemmen van de Europese Gemeenschappen en hun lidstaten mag in geen geval het aantal lidstaten van de Europese Gemeenschappen te boven gaan. ^ [210]
211. Besluiten van de Algemene Raad, wanneer deze bijeenkomt als Orgaan voor Geschillenbeslechting, worden slechts genomen in overeenstemming met de bepalingen van paragraaf 2.4 van het Memorandum inzake Geschillenbeslechting. ^ [211]
212. Een besluit een ontheffing te verlenen ten aanzien van een verplichting die is onderworpen aan een overgangstermijn of een termijn voor gefaseerde toepassing, welke verplichting het Lid dat het verzoek doet niet is nagekomen aan het einde van de desbetreffende termijn, wordt slechts bij consensus genomen. ^ [212]
213. De onder deze bepaling vallende ontheffingen worden vermeld in voetnoot 7 op bladzijden 11 en 12 in deel II van document MTN-FA van 15 december 1993 en in MTN/FA/Corr. 6 van 21 maart 1994. De Ministeriële Conferentie stelt in haar eerste zitting een herziene lijst van onder deze bepaling vallende ontheffingen op waarop tevens alle krachtens GATT 1947 na 15 december 1993 en vóór de datum van de inwerkingtreding van de WTO-Overeenkomst toegekende ontheffingen worden opgenomen en waarop de dan vervallende ontheffingen worden geschrapt. ^ [213]
214. De activiteiten van deze werkgroep worden gecoördineerd met die van de werkgroep waarin deel III van het op 15 april 1994 goedgekeurde Ministerieel Besluit inzake aanmeldingsprocedures voorziet. ^ [214]
215. Niets in dit Memorandum beoogt de rechten en verplichtingen van Leden krachtens de artikelen XII of XVIII, deel B, van GATT 1994 te wijzigen. Er kan een beroep worden gedaan op de bepalingen van de artikelen XXII en XXIII van GATT 1994, zoals gepreciseerd en tenuitvoergelegd in het Memorandum inzake beslechting van geschillen, voor zaken voortvloeiende uit de toepassing van ter bescherming van de betalingsbalans genomen beperkende invoermaatregelen. ^ [215]
216. Deze maatregelen omvatten kwantitatieve invoerbeperkingen, variabele invoerheffingen, minimuminvoerprijzen, discretionaire invoervergunningenregelingen, niet-tarifaire maatregelen die in stand worden gehouden via staatshandelsondernemingen, vrijwillige uitvoerbeperkingen, en andere dergelijke grensbescherming dan gewone douanerechten, ongeacht of het gaat om maatregelen in het kader van landgebonden uitzonderingen op de bepalingen van de GATT 1947, maar zij omvatten niet maatregelen in het kader van betalingsbalansbepalingen of andere algemene, niet specifiek agrarische bepalingen van de GATT 1994 of van de andere Multilaterale Handelsovereenkomsten van Bijlage 1, A, bij de WTO-Overeenkomst. ^ [216]
217. De referentieprijs die wordt gebruikt voor een beroep op het bepaalde in deze alinea is in het algemeen de gemiddelde c.i.f.-prijs per gewichtseenheid van het betrokken produkt of anders een wat betreft de kwaliteit en het verwerkingsstadium van het produkt passende prijs. Nadat deze prijs voor het eerst is toegepast, wordt hij publiek gemaakt voor zover nodig om andere Leden in staat te stellen te bepalen welk aanvullend douanerecht kan worden opgelegd. ^ [217]
218. Wanneer geen rekening wordt gehouden met het interne verbruik, geldt het in lid 4, a., bedoelde basisreactieniveau. ^ [218]
219. In dit artikel wordt onder „compenserende rechten” verstaan rechten als bedoeld in artikel VI van de GATT 1994 en in Deel V van de Overeenkomst inzake subsidies en compenserende maatregelen. ^ [219]
220. De produktomschrijvingen tussen haakjes zijn niet noodzakelijkerwijs limitatief. ^ [220]
221. Voor de toepassing van punt 3 van deze bijlage worden overheidsprogramma's inzake voorraden voor voedselvoorziening die in ontwikkelingslanden verifieerbaar en overeenkomstig officieel bekendgemaakte objectieve criteria of richtlijnen worden uitgevoerd, geacht in overeenstemming te zijn met de bepalingen van dit punt, ook wanneer het programma's betreft in het kader waarvan voorraden voedselprodukten met het oog op de continuïteit van de voedselvoorziening worden aangekocht en worden vrijgegeven tegen officiële prijzen, op voorwaarde echter dat het verschil tussen de aankoopprijs en de externe referentieprijs wordt meegerekend in de AMS. ^ [221]
222. Voor de toepassing van punt 3 en punt 4 van deze bijlage wordt de levering van voedsel tegen gesubsidieerde prijzen met de bedoeling om regelmatig tegen redelijke prijzen te voorzien in de voedselbehoefte van armen in steden en op het platteland in ontwikkelingslanden, geacht in overeenstemming te zijn met de bepalingen in dit punt. ^ [222]
223. In deze Overeenkomst geldt een verwijzing naar artikel XX, b., ook als verwijzing naar de inleidende bepalingen bij dat artikel. ^ [223]
224. In de zin van artikel 3, lid 3, zijn maatregelen wetenschappelijk verantwoord als, op grond van een onderzoek en evaluatie van de beschikbare wetenschappelijke gegevens overeenkomstig de relevante bepalingen van deze Overeenkomst, een Lid bepaalt dat de relevante internationale normen, richtlijnen of aanbevelingen niet toereikend zijn voor het door hem adequaat geachte niveau van sanitaire of fytosanitaire bescherming. ^ [224]
225. In de zin van artikel 5, lid 6, beperkt een maatregel de handel niet meer dan nodig is, tenzij er, rekening houdende met de technische en economische uitvoerbaarheid, een andere redelijkerwijs toepasbare maatregel bestaat die het adequate niveau van sanitaire of fytosanitaire bescherming geeft en aanzienlijk minder beperkingen voor de handel meebrengt. ^ [225]
226. In de zin van deze definities omvat „dier" ook vis en wilde fauna, „plant" ook bossen en wilde flora, „plagen" ook onkruid, en „contaminanten" ook residuen van gewasbeschermingsmiddelen en diergeneesmiddelen, alsmede vreemde bestanddelen. ^ [226]
227. Sanitaire en fytosanitaire maatregelen, zoals wetten, decreten of verordeningen die algemeen toepasselijk zijn. ^ [227]
228. Als in deze Overeenkomst het woord „onderdanen” wordt gebruikt, wordt wat betreft een afzonderlijk douanegebied dat Lid is van de WTO daaronder verstaan een natuurlijke persoon of een rechtspersoon die is gedomicilieerd of die een feitelijke industriële of commerciële vestiging heeft in dat douanegebied. ^ [228]
229. De procedures voor controle, inspectie en goedkeuring omvatten onder andere de procedures voor bemonstering, onderzoek en certificering. ^ [229]
230. Voor zover mogelijk kan de export uit een Lid dat een minstontwikkeld land is ook voor deze bepaling in aanmerking komen. ^ [230]
231. Het toepassingsjaar van de Overeenkomst is de periode van twaalf maanden die op de dag van inwerkingtreding van deze overeenkomst aanvangt en vervolgens steeds twaalf maanden later. ^ [231]
232. De desbetreffende bepalingen van de GATT 1994 omvatten niet artikel XIX wat betreft produkten die nog niet in de GATT 1994 zijn geïntegreerd, tenzij in lid 3 van de Bijlage anders is bepaald. ^ [232]
233. Hieronder vallen alle unilaterale kwantitatieve beperkingen, bilaterale regelingen en andere maatregelen van gelijke werking. ^ [233]
234. Een douane-unie kan vrijwaringsmaatregel als een enkele eenheid of namens een lidstaat nemen. Past een douane-unie een vrijwaringsmaatregel als eenheid toe, dan moet aan alle eisen voor de vaststelling van ernstige schade of dreigende ernstige schade op grond van deze overeenkomst zijn voldaan in de douane-unie als geheel. Wordt een vrijwaringsmaatregel namens een lidstaat genomen, dan moet aan alle eisen voor de vaststelling van ernstige schade of dreigende ernstige schade in die lidstaat zijn voldaan en is de maatregel tot die lidstaat beperkt. ^ [234]
235. Een stijging in de nabije toekomst moet meetbaar zijn en kan niet worden vastgesteld aan de hand van klachten, speculaties en mogelijkheden die bijvoorbeeld uit de produktiecapaciteit in exporterende Leden voortvloeien. ^ [235]
236. Wanneer TRIMs in het kader van een discretionaire bevoegdheid worden toegepast, wordt elke specifieke toepassing bekendgemaakt. Informatie die de legitieme handelsbelangen van bepaalde ondernemingen zou schaden, behoeft niet openbaar te worden gemaakt. ^ [236]
237. Onder „geopend” wordt hierna verstaan de procedurele handeling waarmee een Lid formeel een in artikel 5 bedoeld onderzoek begint. ^ [237]
238. De verkoop van het soortgelijke produkt voor verbruik op de binnenlandse markt van het land van uitvoer wordt, ten behoeve van de vaststelling van de normale waarde, normaliter geacht in voldoende hoeveelheden te hebben plaatsgevonden indien een dergelijke verkoop 5% of meer bedraagt van de verkoop van het betrokken produkt aan het importerende Lid, met dien verstand dat een lager percentage aanvaardbaar zou moeten zijn indien wordt aangetoond dat deze geringere verkoop op de binnenlandse markt niettemin toereikend is om een deugdelijke vergelijking mogelijk te maken. ^ [238]
239. Onder „autoriteiten” worden in deze Overeenkomst verstaan autoriteiten van een voldoende hoog niveau. ^ [239]
240. Deze langere termijn bedraagt normaliter één jaar, en in geen geval minder dan zes maanden. ^ [240]
241. De verkoop beneden de kostprijs per eenheid wordt geacht in aanzienlijke hoeveelheden te hebben plaatsgevonden wanneer de autoriteiten constateren dat de gewogen gemiddelde verkoopprijs bij de transacties die voor de vaststelling van de normale waarde in aanmerking worden genomen lager is dan de gewogen gemiddelde kostprijs per eenheid of dat de beneden de kostprijs per eenheid verkochte hoeveelheid niet minder dan 20% bedraagt van de hoeveelheden die werden verkocht bij de transactie die voor de vaststelling van de normale waarde in aanmerking worden genomen. ^ [241]
242. Bij de correctie voor het opstarten van produktieprocessen wordt rekening gehouden met de kosten aan het einde van de opstartperiode of, indien deze periode langer is dan het onderzoektijdvak, met de meest recente kosten die gedurende het onderzoektijdvak redelijkerwijze door de autoriteiten in aanmerking kunnen worden genomen. ^ [242]
243. Aangezien sommige van deze factoren een doublure kunnen vormen dienen de autoriteiten zorg te dragen dat de reeds uit hoofde van deze bepaling toegepaste correcties geen tweede maal plaatsvinden. ^ [243]
244. De verkoopdatum is normaliter de datum van het document waarin de materiële verkoopvoorwaarden zijn vastgelegd, zoals het koopcontract, de order, de ontvangstbevestiging van de order of de factuur. ^ [244]
245. In deze overeenkomst wordt onder ,,schade’’, tenzij anders bepaald, verstaan aanmerkelijke schade die een binnenlandse bedrijfstak lijdt, aanmerkelijke schade die een binnenlandse bedrijfstak dreigt te lijden of de aanmerkelijk vertraging van de vestiging van een binnenlandse bedrijfstak en wordt dit begrip overeenkomstig de bepalingen van dit artikel geïnterpreteerd. ^ [245]
246. Bij voorbeeld wanneer er overtuigende redenen zijn om aan te nemen dat het produkt in de nabije toekomst in aanzienlijk grotere hoeveelheden tegen dumpprijzen zal worden ingevoerd. ^ [246]
247. Voor de toepassing van dit lid worden producenten uitsluitend geacht met exporteurs of importeurs gelieerd te zijn indien a. een van hen rechtstreeks of onrechtstreeks zeggenschap heeft over de andere of indien b. een derde rechtstreeks of onrechtstreeks zeggenschap heeft over hen beiden, of indien c. zij samen rechtstreeks of onrechtstreeks zeggenschap hebben over een derde, voor zover er redenen zijn om aan te nemen of te vermoeden dat de gelieerde producent zich door deze banden anders gedraagt dan een niet-gelieerde producent. Voor de toepassing van dit lid wordt een bedrijf geacht zeggenschap te hebben over een ander bedrijf wanneer het ene bedrijf rechtens of feitelijk in een positie is het handelen van het andere bedrijf te beperken of te leiden. ^ [247]
248. In deze Overeenkomst wordt onder „heffing” verstaan de definitieve of finale vaststelling of invordering van een recht of heffing. ^ [248]
249. In het geval van gefragmenteerde bedrijfstakken met een zeer groot aantal producenten, kunnen de autoriteiten door middel van statistisch significante steekproeven vaststellen of het verzoek wordt gesteund. ^ [249]
250. De Leden zijn zich ervan bewust dat een verzoek op grond van lid 1 op het grondgebied van bepaalde Leden kan worden ingediend of gesteund door werknemers van de binnenlandse producenten van het soortgelijke produkt of vertegenwoordigers van deze werknemers. ^ [250]
251. In het algemeen wordt de termijn voor exporteurs berekend vanaf de dag van ontvangst van de vragenlijst, die voor dit doel geacht wordt te zijn ontvangen binnen één week nadat hij aan de respondent of aan de geëigende diplomatieke vertegenwoordigers van het exporterende Lid was toegezonden of, in geval van een afzonderlijk douanegebied dat Lid is van de WTO, een officiële vertegenwoordiger van het gebied van uitvoer. ^ [251]
252. Is het aantal betrokken exporteurs bijzonder groot, dan behoeft de volledige tekst van het verzoek slechts aan de autoriteiten van het exporterende Lid of de desbetreffende handelsvereniging te worden toegezonden. ^ [252]
253. De Leden zijn zich ervan bewust dat op het grondgebied van bepaalde Leden bekendmaking bij een nauw omschreven conservatoir bevelschrift verplicht kan zijn. ^ [253]
254. De Leden zijn het erover eens dat verzoeken om vertrouwelijke behandeling niet willekeurig van de hand mogen worden gewezen. ^ [254]
255. Het woord „kan” betekent niet dat de procedure kan worden voortgezet terwijl terzelfder tijd een prijsverbintenis wordt uitgevoerd, behoudens lid 4. ^ [255]
256. Met dien verstande dat de in dit lid en in lid 3.2. genoemde termijnen mogelijkerwijze niet kunnen worden nagekomen wanneer het betrokken produkt het voorwerp vormt van gerechtelijk onderzoek. ^ [256]
257. De vaststelling van het definitieve bedrag van de te betalen anti-dumpingrechten, zoals in artikel 9, lid 3, bepaald, is op zich geen herziening in de zin van onderhavig artikel. ^ [257]
258. Wordt de hoogte van het anti-dumpingrecht met terugwerkende kracht vastgesteld, dan is de conclusie van de meest recente vaststellingsprocedure op grond van artikel 9, lid 3.1 dat geen recht behoeft te worden geheven, voor de autoriteiten op zich geen reden het definitieve recht te beëindigen. ^ [258]
259. Indien de gegevens en motivering overeenkomstig dit artikel in een afzonderlijk verslag worden opgenomen, zien de autoriteiten erop toe dat het publiek dit verslag gemakkelijk kan verkrijgen. ^ [259]
260. Deze bepaling verplicht de Leden er niet toe om overheidsinstanties van andere Leden toestemming te verlenen om op hun grondgebied inspecties voor verzending te verrichten. ^ [260]
261. Een internationale norm is een norm die is vastgesteld door een gouvernementele of niet-gouvernementele organisatie waarvan het lidmaatschap openstaat voor alle Leden en waarvan één van de erkende activiteiten betrekking heeft op de normalisatie. ^ [261]
262. Voor de toepassing van deze Overeenkomst wordt onder „force majeure” verstaan „de onweerstaanbare dwang, onvoorzienbare gebeurtenissen die ontheffen van de verplichting tot uitvoering van de overeenkomst. ^ [262]
263. De verplichtingen van de Leden die de regeling toepassen met betrekking tot de diensten van de met inspectie vóór verzending belaste instanties in verband met de douanewaarde zijn die welke zij hebben aanvaard in het kader van de GATT 1994 en de andere multilaterale handelsovereenkomsten die in bijlage 1A van de WTO-Overeenkomst zijn opgenomen. ^ [263]
264. Dergelijke technische bijstand mag op bilaterale, plurilaterale of multilaterale basis worden verstrekt. ^ [264]
265. Deze bepaling laat de bepalingen ten aanzien van de definitie van „binnenlandse bedrijfstak”, „soortgelijke produkten van de binnenlandse bedrijfstak” of soortgelijke termen onverlet, waar ze ook worden toegepast. ^ [265]
266. Wat de oorsprongsregels betreft die op overheidsopdrachten van toepassing zijn, worden bij deze bepaling geen verplichtingen ingesteld die niet reeds op grond van de GATT 1994 op de Leden rusten. ^ [266]
267. Wat verzoeken betreft die binnen het jaar na de inwerkingtreding van de WTO-Overeenkomst worden gedaan, zijn de leden slechts gehouden de verklaringen zo spoedig mogelijk af te geven. ^ [267]
268. Wordt het ad-valorem-percentage toegepast, dan wordt de wijze van berekening van dit percentage ook in de oorsprongsregels aangegeven. ^ [268]
269. Wordt het criterium van het produktie- of het be- of verwerkingsproces toegepast, dan moet het proces dat oorsprong verleent nauwkeurig worden aangegeven. ^ [269]
270. Hierbij zal tevens aandacht worden besteed over de regelingen van geschillen in verband met de indeling in het douanetarief. ^ [270]
271. In het eerste jaar dat de WTO-Overeenkomst van kracht is, moeten deze verklaringen zo spoedig mogelijk worden afgegeven. ^ [271]
272. Die welke worden aangeduid met de term „vergunningen” alsmede andere soortgelijke administratieve procedures. ^ [272]
273. Geen enkele bepaling van deze Overeenkomst mag zo worden opgevat dat op grond van deze Overeenkomst twijfel bestaat over de grondslag, het toepassingsgebied of de geldigheidsduur van een door middel van een vergunningprocedure toegepaste maatregel. ^ [273]
274. Voor de toepassing van deze Overeenkomst wordt de term „regeringen” geacht de bevoegde autoriteiten van de Europese Gemeenschappen te omvatten. ^ [274]
275. De procedures inzake invoervergunningen waarvoor borgstelling is vereist en die geen beperkende invloed op de invoer hebben, moeten worden geacht te vallen onder de bepalingen van leden 1 en 2. ^ [275]
276. Alle Leden die ontwikkelingslanden zijn, andere dan die welke Partij waren bij de Overeenkomst inzake procedures op het gebied van invoervergunningen van 12 april 1979, die door de voorschriften sub a. ii. en iii. specifieke moeilijkheden ondervinden, kunnen na kennisgeving aan het Comité de toepassing van het bepaalde in deze alinea's uitstellen voor een periode van ten hoogste twee jaar te rekenen vanaf de datum waarop de WTO-Overeenkomst voor die Leden in werking treedt. ^ [276]
277. Soms „houders van contingenten” genoemd. ^ [277]
278. Oorspronkelijk rondgedeeld als document L/3515 van 23 maart 1971 van GATT 1947. ^ [278]
279. Overeenkomstig artikel XVI van de GATT 1994 (Ad artikel XVI) en het bepaalde in de Bijlagen I tot en met III van deze Overeenkomst, wordt de vrijstelling, ten behoeve van een exportprodukt, van rechten en belastingen die worden geheven op het soortgelijke produkt dat voor binnenlands gebruik is bestemd, of de terugbetaling of kwijtschelding van deze rechten en belastingen voor bedragen die niet hoger zijn dan de gestorte of verschuldigde bedragen, niet als subsidie beschouwd. ^ [279]
280. Onder de hier genoemde objectieve criteria of voorwaarden worden criteria of voorwaarden verstaan die bepaalde ondernemingen niet ten opzichte van andere begunstigen en die economisch van aard en horizontaal van toepassing zijn, zoals het aantal werknemers of de grootte van de onderneming. ^ [280]
281. In dit verband wordt met name de frequentie waarmee aanvragen om subsidies worden afgewezen of ingewilligd en de redenen daarvan in aanmerking genomen. ^ [281]
282. Aan deze norm wordt voldaan wanneer uit de feiten blijkt dat de toekenning van een subsidie, zonder dat deze rechtens van exportprestaties afhankelijk is, in feite gebonden is aan de bestaande of verwachte export of van exportinkomsten. Het feit alleen dat een subsidie aan ondernemingen wordt toegekend die exporteren is op zich niet voldoende om te concluderen dat deze subsidie een exportsubsidie in de zin van deze bepaling is. ^ [282]
283. Maatregelen die volgens Bijlage I niet als exportsubsidies kunnen worden aangemerkt zijn volgens deze of enige andere bepaling van deze Overeenkomst niet verboden. ^ [283]
284. Alle in dit artikel genoemde termijnen kunnen in onderling overleg worden verlengd. ^ [284]
285. Bij artikel 24 ingesteld. ^ [285]
286. Indien er in deze periode geen vergadering van het DSB is voorzien, komt het DSB speciaal voor dit doel bijeen. ^ [286]
287. Dit betekent niet dat, omdat het om verboden subsidies gaat, tegenmaatregelen zijn toegestaan die niet in verhouding tot de maatregelen staan. ^ [287]
288. De term „schade voor de binnenlandse bedrijfstak” wordt hier in dezelfde zin gebruikt als in Deel V. ^ [288]
289. De term „teniet gedaan of uitgehold” wordt in deze Overeenkomst in dezelfde zin gebruikt als in de desbetreffende bepalingen van de GATT 1994, en of voordelen worden tenietgedaan of uitgehold wordt overeenkomstig de praktische toepassing van deze bepalingen vastgesteld. ^ [289]
290. Onder de „ernstige schade” in deze Overeenkomst wordt hetzelfde verstaan als onder „ernstig nadeel” in Artikel XVI, lid 1, van de GATT 1994, en wordt ook „dreigende ernstige schade” verstaan. ^ [290]
291. De totale, in waarde uitgedrukte subsidiëring wordt overeenkomstig Bijlage IV berekend. ^ [291]
292. Daar verwacht wordt dat voor burgerluchtvaartuigen bijzondere multilaterale regels zullen worden opgesteld, is de in deze alinea genoemde drempel niet op deze luchtvaartuigen van toepassing. ^ [292]
293. De Leden erkennen dat indien een op royalties gebaseerde financiering voor een programma voor de bouw van burgerluchtvaartuigen niet volledig wordt terugbetaald daar het niveau van de verkoop niet aan de verwachtingen voldoet, dit op zich geen ernstige schade in de zin van deze alinea inhoudt. ^ [293]
294. Tenzij op de betrokken grondstof of het betrokken basisprodukt multilateraal overeengekomen bijzondere regels van toepassing zijn. ^ [294]
295. Het feit dat bepaalde omstandigheden in dit lid zijn genoemd verleend deze op zich geen juridische status in de zin van de GATT 1994 of van deze Overeenkomst. Deze omstandigheden mogen niet op zich staan, zich sporadisch voordoen of anderszins zonder betekenis zijn. ^ [295]
296. Alle in dit artikel genoemde termijnen kunnen in onderling overleg worden verlengd. ^ [296]
297. Indien er in deze periode geen vergadering van het DSB is voorzien, komt het DSB speciaal voor dit doel bijeen. ^ [297]
298. Erkend wordt dat het een wijdverbreide praktijk van de Leden is overheidssteun voor uiteenlopende doeleinden te verlenen en dat het loutere feit dat zulke steun volgens de bepalingen van dit artikel niet als steun kan worden beschouwd waartegen geen actie kan worden ingesteld op zich het vermogen van Leden om die steun te verlenen niet beperkt. ^ [298]
299. Deze alinea is niet van toepassing op burgerluchtvaartuigen, daar verwacht wordt dat voor dit produkt bijzondere multilaterale regels zullen worden opgesteld. ^ [299]
300. Uiterlijk 18 maanden na de datum van inwerkingtreding van de WTO-Overeenkomst onderzoekt de bij artikel 24 ingestelde Commissie Subsidies en Compenserende Maatregelen (in deze overeenkomst „Commissie” genoemd) de werking van het bepaalde in punt 2a), ten einde, zo nodig, wijzigingen aan te brengen om de werking van deze bepalingen te verbeteren. Bij het overwegen van mogelijke wijzigingen, zal de Commissie de definities van de in deze alinea omschreven categorieën zorgvuldig onderzoeken, in het licht van de ervaring van Leden met de werking van onderzoeksprogramma's en de werkzaamheden van andere internationale instellingen. ^ [300]
301. De bepalingen in deze Overeenkomst zijn niet van toepassing op fundamenteel onderzoek dat op onafhankelijke wijze door instellingen voor hoger onderwijs of onderzoekinstellingen wordt uitgevoerd. Onder „fundamenteel onderzoek” wordt een uitbreiding van de algemene wetenschappelijke en technische kennis verstaan zonder industriële of commerciële doelstellingen. ^ [301]
302. Het toegestane niveau van de in deze alinea bedoelde steun waartegen geen actie kan worden ingesteld, wordt vastgesteld aan de hand van de totale in aanmerking te nemen kosten die tijdens de looptijd van een afzonderlijk project zijn ontstaan. ^ [302]
303. Onder „industrieel onderzoek” wordt geprogrammeerd of kritisch onderzoek verstaan dat gericht is op het opdoen van nieuwe kennis met het doel deze kennis bij de ontwikkeling van nieuwe produkten, processen of diensten te gebruiken, of om bestaande produkten, processen of diensten aanmerkelijk te verbeteren. ^ [303]
304. Onder „pre-concurrentiële ontwikkeling” wordt verstaan de omzetting van de resultaten van industrieel onderzoek in plannen, schema's of ontwerpen voor nieuwe, gewijzigde of verbeterde produkten, processen of diensten, of deze nu voor verkoop of gebruik zijn bestemd, met inbegrip van de fabricage van een eerste prototype dat niet voor commerciële doeleinden kan worden aangewend. Voorts kan daaronder de conceptuele formulering en het ontwerp van alternatieve produkten, processen of diensten worden verstaan en eerste demonstratie- of modelprojecten, voor zover deze projecten niet voor industriële toepassing of commerciële exploitatie kunnen worden gebruikt of geschikt gemaakt. Daaronder wordt niet verstaan routinematige of periodieke wijzigingen van bestaande produkten, produktielijnen, fabricageprocessen of diensten en andere courante werkzaamheden, zelfs indien deze wijzigingen verbeteringen kunnen zijn. ^ [304]
305. Wat programma's betreft die betrekking hebben op industrieel onderzoek en pre-concurrentiële ontwikkeling, mag het niveau van steun waartegen geen actie kan worden ingesteld niet meer bedragen dan het gewone gemiddelde van de toegestane niveaus van steun waartegen geen actie kan worden ingesteld dat op deze twee categorieën van toepassing is, berekend aan de hand van de in aanmerking te nemen kosten als onder i. tot en met v. van deze alinea uiteengezet. ^ [305]
306. Onder „algemeen kader van regionale ontwikkeling” wordt verstaan dat de regionale subsidieprogramma's deel uitmaken van een innerlijk samenhangend, algemeen regionaal ontwikkelingsbeleid en dat de subsidies voor regionale ontwikkeling niet aan geïsoleerde geografische punten worden toegekend die geen of vrijwel geen invloed hebben op de ontwikkeling van een regio. ^ [306]
307. Onder „bestaande uitrusting” wordt uitrusting verstaan die wanneer de nieuwe milieu-eisen worden ingesteld ten minste twee jaar in gebruik is. ^ [307]
308. Erkend wordt dat niets in deze bepaling ertoe verplicht vertrouwelijke gegevens, waaronder zakengeheimen, mede te delen. ^ [308]
309. Behalve op Deel V kan ook een beroep worden gedaan op de Delen II en III. Wat betreft de gevolgen van een bepaalde subsidie op de binnenlandse markt van het importerende Lid, is slechts e´e´n vorm van bescherming mogelijk, namelijk een compenserend recht indien aan de eisen van Deel V is voldaan, of een tegenmaatregel op grond van artikel 4 of artikel 7. Voor maatregelen waartegen ingevolge Deel IV geen actie kan worden ingesteld, kan geen beroep worden gedaan op de Delen III en V. De in artikel 8, lid 1, onder a. bedoelde maatregelen kunnen echter worden onderzocht ten einde vast te stellen of zij al dan niet specifiek zijn in de zin van artikel 2. In geval van een in artikel 8, lid 2, bedoelde subsidie die in het kader van een regeling is verleend die niet is aangemeld overeenkomstig artikel 8, lid 3, kan bovendien op de Delen III of V een beroep worden gedaan, maar een dergelijke subsidie zal als een subsidie worden beschouwd waartegen geen actie kan worden ingesteld indien deze aan de normen van artikel 8, lid 2, blijkt te voldoen. ^ [309]
310. Onder „compenserend recht” wordt een bijzonder recht verstaan dat geheven wordt om een subsidie te compenseren die rechtstreeks of onrechtstreeks voor de vervaardiging, de produktie of de uitvoer van een produkt is verleend, zoals bepaald in artikel VI, lid 3, van de GATT 1994. ^ [310]
311. Onder „geopend” wordt hierna de procedurele handeling verstaan waarmee een Lid formeel een in artikel 11 bedoeld onderzoek begint. ^ [311]
312. In het geval van gefragmenteerde bedrijfstakken met een zeer groot aantal producenten, kunnen de autoriteiten door middel van statistisch significante steekproeven vaststellen of het verzoek wordt gesteund. ^ [312]
313. De Leden zijn zich ervan bewust dat een verzoek op grond van lid 1 op het grondgebied van bepaalde Leden kan worden ingediend of gesteund door werknemers van de binnenlandse producenten van het soortgelijke produkt of vertegenwoordigers van deze werknemers. ^ [313]
314. In het algemeen wordt de termijn voor exporteurs berekend vanaf de dag van ontvangst van de vragenlijst, die voor dit doel geacht wordt te zijn ontvangen binnen één week nadat hij aan de respondent of via de geëigende diplomatieke vertegenwoordigers van het exporterende Lid is toegezonden of, in geval van een afzonderlijk douanegebied dat Lid is van de WTO, een officiële vertegenwoordiger van het gebied van uitvoer. ^ [314]
315. Is het aantal betrokken exporteurs bijzonder groot, dan behoeft de volledige tekst van het verzoek slechts te worden toegezonden aan de autoriteiten van het exporterende Lid of de desbetreffende handelsvereniging die kopieën aan de betrokken exporteurs dient toe te zenden. ^ [315]
316. De Leden zijn zich ervan bewust dat op het grondgebied van bepaalde Leden bekendmaking bij een nauw omschreven conservatoir bevelschrift verplicht kan zijn. ^ [316]
317. De Leden zijn het erover eens dat verzoeken om vertrouwelijke behandeling niet willekeurig van de hand mogen worden gewezen en dat de met onderzoek belaste autoriteiten de geheimhoudingsplicht slechts kunnen opheffen voor gegevens die voor de procedure relevant zijn. ^ [317]
318. Ingevolge dit lid is het vooral van belang dat geen positieve conclusies worden getrokken, of deze nu voorlopig of definitief zijn, zonder dat er een redelijke gelegenheid tot overleg is geweest. Dit overleg kan de basis vormen voor procedures op grond van Deel II, III of X. ^ [318]
319. In deze overeenkomst wordt onder ,,schade’’, tenzij anders bepaald, verstaan aanmerkelijke schade die een binnenlandse bedrijfstak lijdt, aanmerkelijke schade die een binnenlandse bedrijfstak dreigt te lijden of de aanmerkelijk vertraging van de vestiging van een binnenlandse bedrijfstak en wordt dit begrip overeenkomstig de bepalingen van dit artikel geı¨nterpreteerd. ^ [319]
320. In deze Overeenkomst wordt onder „soortgelijk produkt” verstaan een produkt dat identiek is, dat wil zeggen in alle opzichten gelijk aan het onderzochte produkt of, bij gebreke van een dergelijk produkt, een ander produkt dat, hoewel het niet in alle opzichten gelijk is, kenmerken bezit die grote overeenkomst vertonen met die van het onderzochte produkt. ^ [320]
321. Zoals omschreven in de leden 2 en 4. ^ [321]
322. Voor de toepassing van dit lid worden producenten uitsluitend geacht met exporteurs of importeurs gelieerd te zijn indien a. een van hen rechtstreeks of onrechtstreeks zeggenschap heeft over de andere of indien b. een derde rechtstreeks of onrechtstreeks zeggenschap heeft over hen beiden, of indien c. zij samen rechtstreeks of onrechtstreeks zeggenschap hebben over een derde, voor zover er redenen zijn om aan te nemen of te vermoeden dat de gelieerde producent zich door deze banden anders gedraagt dan een niet-gelieerde producent. Voor de toepassing van dit lid wordt een bedrijf geacht zeggenschap te hebben over een ander bedrijf wanneer het ene bedrijf rechtens of feitelijk in een positie is het handelen van het andere bedrijf te beperken of te leiden. ^ [322]
323. Het woord „kan” betekent niet dat de procedure kan worden voortgezet terwijl terzelfdertijd een verbintenis wordt uitgevoerd, behoudens lid 4. ^ [323]
324. Voor de toepassing van dit lid, worden onder „belanghebbenden in het binnenland” ook consumenten en industriële gebruikers van het onderzochte importprodukt verstaan. ^ [324]
325. Onder „heffen” wordt in deze Overeenkomst de definitieve instelling of inning van een recht of belasting verstaan. ^ [325]
326. Wordt de hoogte van het compenserend recht op retrospectieve basis vastgesteld, dan is de conclusie van de meest recente procedure dat geen recht behoeft te worden geheven voor de autoriteiten op zich geen reden het definitieve recht in te trekken. ^ [326]
327. Indien de autoriteiten gegevens en uitleg ingevolge dit artikel in een afzonderlijk verslag verstrekken, zien ze erop toe dat het publiek dit verslag gemakkelijk kan verkrijgen. ^ [327]
328. Het Comité stelt een werkgroep in om de vorm en inhoud van de vragenlijst die in BISD 9S/193-194 is opgenomen, opnieuw te onderzoeken. ^ [328]
329. Voor een Lid dat een ontwikkelingsland is dat op de datum van inwerkingtreding van de WTO-Overeenkomst geen subsidies toekent, is dit lid van toepassing uitgaande van het niveau van de in 1986 verleende exportsubsidies. ^ [329]
330. Dit lid heeft niet ten doel te verhinderen dat in voorkomend geval maatregelen worden genomen op grond van andere bepalingen van de GATT 1994. ^ [330]
331. Onder „commercieel verkrijgbaar” wordt verstaan dat vrij tussen binnenlandse en importgoederen kan worden gekozen en dat deze keuze slechts van commerciële overwegingen afhangt. ^ [331]
332. Voor de toepassing van deze overeenkomst wordt verstaan onder: „directe belastingen”: belastingen op lonen, winsten, rente, huursommen, royalties en alle andere vormen van inkomen alsmede belastingen op het bezit van onroerende goederen; „invoerheffingen”: douanerechten, andere rechten en overige niet elders in deze noot genoemde belastingen die bij invoer worden geheven; „indirecte belastingen”: belastingen op de verkoop, accijnzen, omzetbelasting, belastingen over de toegevoegde waarde, belastingen op concessies, zegelrechten, overdrachtsbelastingen, belastingen op voorraden en uitrusting, alsmede belastingaanpassingen aan de grens en alle overige belastingen, met uitzondering van directe belastingen en invoerheffingen; „in voorafgaande stadia geheven indirecte belastingen”: belastingen geheven over goederen of diensten die direct of indirect bij de vervaardiging van het produkt zijn gebruikt; „cumulatieve indirecte belastingen”: over meerdere stadia gespreide belastingen waarvoor geen regeling voor belastingtegoeden bestaat wanneer de in een bepaald produktiestadium aan belasting onderworpen goederen goederen of diensten in een later produktiestadium worden gebruikt; „kwijtschelding van belastingen”: ook de terugbetaling van belastingen of belastingaftrek; „kwijtschelding of terugbetaling van rechten”: ook de volledige of gedeeltelijke vrijstelling of uitstel van betaling van invoerrechten. ^ [332]
333. De Leden erkennen dat uitstel van betaling niet noodzakelijkerwijs een exportsubsidie inhoudt, bijvoorbeeld wanneer een normale rente in rekening wordt gebracht. De Leden bevestigen het beginsel dat de prijzen van goederen in transacties tussen exportondernemingen en buitenlandse afnemers waarover zij zeggenschap hebben of waarover dezelfde persoon of onderneming zeggenschap heeft voor belastingdoeleinden de prijzen moeten zijn die tussen onafhankelijke ondernemingen worden toegepast onder voorwaarden van vrije concurrentie. Elk Lid kan de aandacht van een ander Lid op administratieve of andere praktijken vestigen die met dit beginsel in strijd kunnen zijn en waardoor bij exporttransacties aanzienlijk minder directe belastingen worden betaald. Onder dergelijke omstandigheden zullen de Leden normalerwijze trachten hun geschillen op te lossen door gebruikmaking van de mogelijkheden die bestaande bilaterale belastingovereenkomsten of andere speciale internationale regelingen bieden, onverminderd de rechten en plichten van de Leden op grond van de GATT 1994, met inbegrip van het in de voorafgaande zin ingestelde recht van overleg. Lid e. strekt er niet toe de mogelijkheid van een Lid te beperken maatregelen te nemen met het oog op het vermijden van dubbele belasting op inkomsten van zijn ondernemingen of van ondernemingen van een ander Lid uit buitenlandse bron. ^ [333]
334. Voor de toepassing van deze overeenkomst wordt verstaan onder: ,,directe belastingen’’: belastingen op lonen, winsten, rente, huursommen, royalties en alle andere vormen van inkomen alsmede belastingen op het bezit van onroerende goederen; ,,invoerheffingen’’: douanerechten, andere rechten en overige niet elders in deze noot genoemde belastingen die bij invoer worden geheven; ,,indirecte belastingen’’: belastingen op de verkoop, accijnzen, omzetbelasting, belastingen over de toegevoegde waarde, belastingen op concessies, zegelrechten, overdrachtsbelastingen, belastingen op voorraden en uitrusting, alsmede belastingaanpassingen aan de grens en alle overige belastingen, met uitzondering van directe belastingen en invoerheffingen; ,,in voorafgaande stadia geheven indirecte belastingen’’: belastingen geheven over goederen of diensten die direct of indirect bij de vervaardiging van het produkt zijn gebruikt; ,,cumulatieve indirecte belastingen’’: over meerdere stadia gespreide belastingen waarvoor geen regeling voor belastingtegoeden bestaat wanneer de in een bepaald produktiestadium aan belasting onderworpen goederen goederen of diensten in een later produktiestadium worden gebruikt; ,,kwijtschelding van belastingen’’: ook de terugbetaling van belastingen of belastingaftrek; ,,kwijtschelding of terugbetaling van rechten’’: ook de volledige of gedeeltelijke vrijstelling of uitstel van betaling van invoerrechten. ^ [334]
335. Voor de toepassing van deze overeenkomst wordt verstaan onder: ,,directe belastingen’’: belastingen op lonen, winsten, rente, huursommen, royalties en alle andere vormen van inkomen alsmede belastingen op het bezit van onroerende goederen; ,,invoerheffingen’’: douanerechten, andere rechten en overige niet elders in deze noot genoemde belastingen die bij invoer worden geheven; ,,indirecte belastingen’’: belastingen op de verkoop, accijnzen, omzetbelasting, belastingen over de toegevoegde waarde, belastingen op concessies, zegelrechten, overdrachtsbelastingen, belastingen op voorraden en uitrusting, alsmede belastingaanpassingen aan de grens en alle overige belastingen, met uitzondering van directe belastingen en invoerheffingen; ,,in voorafgaande stadia geheven indirecte belastingen’’: belastingen geheven over goederen of diensten die direct of indirect bij de vervaardiging van het produkt zijn gebruikt; ,,cumulatieve indirecte belastingen’’: over meerdere stadia gespreide belastingen waarvoor geen regeling voor belastingtegoeden bestaat wanneer de in een bepaald produktiestadium aan belasting onderworpen goederen goederen of diensten in een later produktiestadium worden gebruikt; ,,kwijtschelding van belastingen’’: ook de terugbetaling van belastingen of belastingaftrek; ,,kwijtschelding of terugbetaling van rechten’’: ook de volledige of gedeeltelijke vrijstelling of uitstel van betaling van invoerrechten. ^ [335]
336. Punt h) is niet van toepassing op stelsels van belasting over de toegevoegde waarde en daarvoor in de plaats tredende belastingaanpassingen aan de grens; het probleem van de te grote vermindering van de belasting over de toegevoegde waarde wordt uitsluitend in punt g) behandeld. ^ [336]
337. Voor de toepassing van deze overeenkomst wordt verstaan onder: ,,directe belastingen’’: belastingen op lonen, winsten, rente, huursommen, royalties en alle andere vormen van inkomen alsmede belastingen op het bezit van onroerende goederen; ,,invoerheffingen’’: douanerechten, andere rechten en overige niet elders in deze noot genoemde belastingen die bij invoer worden geheven; ,,indirecte belastingen’’: belastingen op de verkoop, accijnzen, omzetbelasting, belastingen over de toegevoegde waarde, belastingen op concessies, zegelrechten, overdrachtsbelastingen, belastingen op voorraden en uitrusting, alsmede belastingaanpassingen aan de grens en alle overige belastingen, met uitzondering van directe belastingen en invoerheffingen; ,,in voorafgaande stadia geheven indirecte belastingen’’: belastingen geheven over goederen of diensten die direct of indirect bij de vervaardiging van het produkt zijn gebruikt; ,,cumulatieve indirecte belastingen’’: over meerdere stadia gespreide belastingen waarvoor geen regeling voor belastingtegoeden bestaat wanneer de in een bepaald produktiestadium aan belasting onderworpen goederen goederen of diensten in een later produktiestadium worden gebruikt; ,,kwijtschelding van belastingen’’: ook de terugbetaling van belastingen of belastingaftrek; ,,kwijtschelding of terugbetaling van rechten’’: ook de volledige of gedeeltelijke vrijstelling of uitstel van betaling van invoerrechten. ^ [337]
338. In het produktieproces verbruikte produktiemiddelen zijn middelen die daarin fysiek zijn opgenomen, energie, brandstof en olie die bij het produktieproces worden gebruikt en katalysatoren die bij de verkrijging van het exportprodukt worden verbruikt. ^ [338]
339. De Leden dienen zo nodig tot een regeling te komen over zaken die in deze Bijlage niet zijn vermeld of die voor de toepassing van artikel 6, lid 1, onder a. verdere opheldering behoeven. ^ [339]
340. Het subsidie-ontvangende bedrijf is een bedrijf op het grondgebied van het subsidieverlenende Lid. ^ [340]
341. Voor belastinggerelateerde subsidies is de waarde van het produkt de totale waarde van de omzet van het subsidie-ontvangende bedrijf in het belastingjaar waarin dit bedrijf voordeel had bij de belastinggerelateerde subsidie. ^ [341]
342. Onder „aanvangsfase” wordt ook de fase verstaan waarin financiële verplichtingen zijn aangegaan voor de ontwikkeling van een produkt of de bouw van installaties voor de vervaardiging van produkten waarop de subsidie van toepassing is, ook al is nog niet met de produktie begonnen. ^ [342]
343. Wanneer het bestaan van ernstige schade moet worden aangetoond. ^ [343]
344. Bij het verzamelen van inlichtingen door het DSB dient rekening te worden gehouden met de plicht tot bescherming van gegevens die van nature vertrouwelijk zijn of die op vertrouwelijke basis door een bij deze procedure betrokken Lid worden verstrekt. ^ [344]
345. De opname van ontwikkelingslanden die Lid zijn in de lijst in lid b. is gebaseerd op de meest recente gegevens van de Wereldbank over het BNP per hoofd van de bevolking. ^ [345]
346. Een douane-unie kan een vrijwaringsmaatregel toepassen als instantie of namens een Lid-Staat. Wanneer een douane-unie een vrijwaringsmaatregel toepast als instantie moeten alle voorschriften voor het vaststellen van ernstige schade of de dreiging daarvan in de zin van deze Overeenkomst zijn gebaseerd op de voorwaarden die in de douane-unie als een geheel bestaan. Wanneer een vrijwaringsmaatregel wordt toegepast namens een Lid-Staat, moeten alle voorschriften voor de vaststelling van ernstige schade of de dreiging daarvan zijn gebaseerd op de voorwaarden die in die Lid-Staat bestaan en wordt de maatregel tot die Lid-Staat beperkt. Geen enkele bepaling van deze Overeenkomst doet af aan de interpretatie van het verband tussen artikel XIX en artikel XXIV, lid 8, van de GATT 1994. ^ [346]
347. Een Lid moet de Commissie Vrijwaringsmaatregelen onmiddellijk in kennis stellen van een op grond van artikel 9, lid 1, genomen maatregel. ^ [347]
348. Een invoercontingent dat in overeenstemming met de desbetreffende bepalingen van de GATT 1994 en deze Overeenkomst als vrijwaringsmaatregel wordt gebruikt, mag, met wederzijdse instemming, door het exporterend Lid worden toegepast. ^ [348]
349. Voorbeelden van soortgelijke maatregelen zijn uitvoerbeperkingen, systemen voor toezicht op de export- of importprijzen, toezicht op de export of import, verplichte importkartels en vrije regelingen voor export- of importvergunningen die bescherming bieden. ^ [349]
350. De enige dergelijke uitzondering waarop de Europese Gemeenschappen recht hebben is in de bijlage van deze Overeenkomst vermeld. ^ [350]
351. Deze voorwaarde moet worden uitgelegd in termen van aantal sectoren, betrokken handelsvolume en dienstverleningsvormen. Om aan deze voorwaarde te voldoen, mag de overeenkomst niet bepalen dat een vorm van dienstverlening bij voorbaat is uitgesloten. ^ [351]
352. Het kenmerk van een dergelijke integratie-overeenkomst is dat de burgers van betrokken partijen vrije toegang hebben tot de arbeidsmarkten van de partijen, en dat daarin ook bepalingen zijn opgenomen inzake lonen, andere arbeidsvoorwaarden en sociale zekerheid. ^ [352]
353. Onder „bevoegde internationale organisaties” worden de internationale organen bedoeld waarvan de bevoegde organen van ten minste alle Leden van de WTO lid kunnen worden. ^ [353]
354. De procedures op grond van lid 5 zijn dezelfde procedures als die van de GATT 1994. ^ [354]
355. De uitzondering betreffende de openbare orde mag slechts worden ingeroepen in geval van een daadwerkelijke en voldoende ernstige bedreiging van fundamentele maatschappelijke belangen. ^ [355]
356. Maatregelen die bedoeld zijn om directe belastingen op billijke en doeltreffende wijze te kunnen opleggen en innen omvatten maatregelen die een Lid op grond van zijn belastingstelsel neemt en die:

     • i. van toepassing zijn op dienstverleners die niet-ingezetenen zijn, gezien het feit dat de fiscale verplichtingen van niet-ingezetenen worden vastgesteld op grond van belastbare feiten die op het grondgebied van het Lid hun oorsprong vinden of geschieden; of

     • ii. van toepassing zijn op niet-ingezetenen om belastingen op het grondgebied van het Lid te kunnen opleggen en innen; of

     • iii. van toepassing zijn op niet-ingezetenen of ingezetenen ter voorkoming van belastingontwijking of -ontduiking, uitvoeringsbepalingen daarbij inbegrepen; of

     • iv. van toepassing zijn op gebruikers van diensten die op of vanaf het grondgebied van een ander Lid worden verleend om ervoor te zorgen dat door die gebruiker verschuldigde belastingen die hun bron op het grondgebied van het Lid hebben, opgelegd of geïnd kunnen worden; of

     • v. een onderscheid maken tussen dienstverleners die belastingplichtig zijn ter zake van wereldwijd belastbare feiten en andere dienstverleners, gezien het verschil in de aard van de heffingsgrondslag tussen hen; of

     • vi. inkomen, winst, voordeel, verlies, aftrek of krediet van ingezeten personen of filialen, dan wel tussen gelieerde personen of filialen van dezelfde persoon vaststellen, toewijzen of omslaan, om de belastinggrondslag van het Lid te behouden.

     De belastingvoorwaarden of -concepten van artikel XIV, lid d. en deze voetnoot worden vastgesteld volgens de belastingdefinities en -concepten, dan wel gelijkwaardige of soortgelijke definities en concepten van het nationale recht van het Lid dat de maatregel neemt. ^ [356]
357. In een toekomstig werkprogrammma zal worden bepaald hoe en binnen welke termijn, over deze multilaterale disciplines zal worden onderhandeld. ^ [357]
358. Als een Lid een verbintenis betreffende markttoegang aangaat in verband met de verlening van een dienst door middel van de in artikel I, lid 2, onder a., genoemde verleningsvormen en grensoverschrijdend kapitaalverkeer een wezenlijk onderdeel van deze dienst uitmaakt, is dit Lid daardoor gehouden dit kapitaalverkeer toe te laten. Als een Lid een verbintenis betreffende markttoegang aangaat in verband met de verlening van een dienst door middel van de in artikel I, lid 2, onder c. genoemde verleningsvormen, is het Lid daardoor gehouden de daarmee verband houdende overmakingen van kapitaal naar zijn grondgebied toe te laten. ^ [358]
359. Lid 2, onder c. is niet van toepassing op maatregelen van een Lid die de input voor de verlening van een dienst beperken. ^ [359]
360. De op grond van dit artikel aangegane specifieke verbintenissen worden niet zodanig uitgelegd dat een Lid verplicht is tot compensatie van concurrentienadelen die inherent zijn aan het buitenlandse karakter van de desbetreffende diensten of dienstverleners. ^ [360]
361. Wat betreft de overeenkomsten ter vermijding van dubbele belastingheffing die op de datum van inwerkingtreding van de WTO-Overeenkomst reeds bestaan, kan een dergelijke kwestie alleen met instemming van beide Partijen bij die Overeenkomst voor de Raad voor de Handel in Diensten worden gebracht. ^ [361]
362. Wanneer de dienst niet direct door een rechtspersoon wordt verleend maar via andere vormen van commerciële aanwezigheid, zoals een filiaal of vertegenwoordigingskantoor, wordt de dienstverlener (d.w.z. de rechtspersoon) niettemin via deze aanwezigheid behandeld op de wijze die in de Overeenkomst voor dienstverleners is voorzien. Deze behandeling wordt uitgebreid tot de aanwezigheid via welke de dienst wordt verleend en behoeft niet te worden uitgebreid tot andere onderdelen van de verlener die buiten het grondgebied waar de dienst wordt verleend, gevestigd zijn. ^ [362]
363. Het loutere feit dat voor natuurlijke personen van bepaalde Leden wel, en voor natuurlijke personen van andere Leden geen visum wordt geëist, wordt niet beschouwd als het uithollen of teniet doen van de voordelen die uit een specifieke verbintenis voortvloeien. ^ [363]
364. Wanneer in deze Overeenkomst wordt verwezen naar „onderdanen” worden deze, in het geval van een afzonderlijk douanegebied dat Lid is van de WTO, geacht te zijn natuurlijke personen of rechtspersonen die in dat douanegebied zijn gevestigd of aldaar een echte en daadwerkelijke industriële of commerciële vestiging hebben. ^ [364]
365. In deze Overeenkomst wordt onder „Verdrag van Parijs” verstaan het Verdrag tot bescherming van de industriële eigendom; onder „Verdrag van Parijs (1967)” wordt verstaan de Akte van Stockholm bij dit Verdrag van 14 juli 1967. Onder „Berner Conventie” wordt verstaan de Conventie voor de bescherming van werken van letterkunde en kunst; onder „Berner Conventie (1971)” wordt verstaan de Akte van Parijs bij deze Conventie van 24 juli 1971. Onder „Verdrag van Rome” wordt verstaan het Internationaal Verdrag inzake de bescherming van uitvoerende kunstenaars, producenten van fonogrammen en omroeporganisaties, aangenomen te Rome op 26 oktober 1961. Onder „Verdrag inzake de intellectuele eigendom met betrekking tot geïntegreerde schakelingen” (IPIC-Verdrag) wordt verstaan het Verdrag inzake de intellectuele eigendom met betrekking tot geïntegreerde schakelingen, aangenomen te Washington op 26 mei 1989. Onder „WTO-Overeenkomst” wordt verstaan de overeenkomst tot oprichting van de WTO. ^ [365]
366. Voor de toepassing van de artikelen 3 en 4 van deze Overeenkomst omvat bescherming alle aangelegenheden die van invloed zijn op het bestaan, de verwerving, reikwijdte, instandhouding en handhaving van rechten uit hoofde van de intellectuele eigendom, alsmede de specifiek in deze Overeenkomst behandelde aangelegenheden die van invloed zijn op het gebruik van deze rechten. ^ [366]
367. Niettegenstaande de eerste volzin van artikel 42 kunnen Leden met betrekking tot deze verplichtingen ook voorzien in administratieve maatregelen om deze te doen naleven. ^ [367]
368. Voor de toepassing van dit artikel kunnen de uitdrukkingen „uitvinderswerkzaamheid” en „industrieel kunnen worden toegepast” door een Lid geacht worden synoniem te zijn met de uitdrukkingen „niet voor de hand liggend” respectievelijk „nuttig”. ^ [368]
369. Dit recht is, evenals alle andere krachtens deze Overeenkomst verleende rechten met betrekking tot het gebruik, de verkoop, de invoer of andere distributie van goederen, onderworpen aan de bepalingen van artikel 6. ^ [369]
370. Onder „ander gebruik” wordt verstaan ander gebruik dan dat wat is toegestaan krachtens artikel 30. ^ [370]
371. Er bestaat overeenstemming over het feit dat de Leden die geen stelsel van eigen verlening bezitten, kunnen bepalen dat de beschermingsduur wordt berekend vanaf de datum van indiening in het stelsel van eigen verlening. ^ [371]
372. De uitdrukking „houder van het recht” in deze Titel wordt geacht dezelfde betekenis te hebben als de uitdrukking „rechthebbende” in het IPIC-Verdrag. ^ [372]
373. Voor de toepassing van deze bepaling wordt onder „een wijze die strijdig is met eerlijke handelsgebruiken” verstaan ten minste gedragingen zoals contractbreuk, misbruik van vertrouwen en aansporing tot overtreding en omvat dit de verwerving van niet openbaar gemaakte informatie door derden die wisten, of ernstig nalatig waren doordat zij niet wisten, dat van zulke praktijken gebruik werd gemaakt bij de verwerving. ^ [373]
374. Voor de toepassing van dit Deel omvat de uitdrukking „houder van rechten” mede verbonden en verenigingen die bevoegd zijn zodanige rechten te doen gelden. ^ [374]
375. Wanneer een Lid alle controles op het vervoer van goederen over zijn grens met een ander Lid waarmede het deel uitmaakt van een douaneunie heeft afgeschaft, wordt van dat Lid niet verlangd dat het de bepalingen van deze Titel aan die grens toepast. ^ [375]
376. Er bestaat overeenstemming over het feit dat er geen verplichting bestaat om deze procedures toe te passen op de invoer van goederen die door de houder van het recht of met diens toestemming in een ander land op de markt worden gebracht, dan wel op goederen in doorvoer. ^ [376]
377. Voor de toepassing van deze Overeenkomst:

     • a. wordt onder „nagemaakte merkartikelen” verstaan alle goederen, met inbegrip van verpakking, die zonder toestemming een handelsmerk dragen dat identiek is met het rechtsgeldig met betrekking tot deze goederen ingeschreven handelsmerk, of dat in essentiële aspecten niet van dat handelsmerk kan worden onderscheiden, en dat daardoor inbreuk maakt op de rechten van de houder van het handelsmerk in kwestie ingevolge het recht van het land van invoer;

     • b. wordt onder „onrechtmatig gereproduceerde goederen waarop een auteursrecht rust” verstaan kopieën die zijn gemaakt zonder toestemming van de houder van het recht of de naar behoren door hem gemachtigde persoon in het land van produktie en die direct of indirect van een artikel zijn gemaakt, wanneer het maken van die kopie een inbreuk op een auteursrecht of een naburig recht zou hebben gevormd ingevolge het recht van het land van invoer.

     ^ [377]
378. Dit punt laat punt 1b onverlet. ^ [378]
379. Deze kennisgeving moet niet worden goedgekeurd door een WTO-orgaan om van het stelsel gebruik te kunnen maken. ^ [379]
380. Australië, Canada, de Europese Gemeenschap met, voor de toepassing van artikel 31bis en deze bijlage, haar lidstaten, IJsland, Japan, Nieuw-Zeeland, Noorwegen, Zwitserland, en de Verenigde Staten. ^ [380]
381. Gemeenschappelijke kennisgevingen van de bij dit punt vereiste informatie kunnen in onderlinge overeenstemming namens de in aanmerking komende importerende leden die gebruik maken van het stelsel geschieden door de regionale organisaties waarmee zij betrokken partij zijn als bedoeld in lid 3 van artikel 31bis. ^ [381]
382. Deze kennisgeving moet niet worden goedgekeurd door een WTO-orgaan om van het stelsel gebruik te kunnen maken. ^ [382]
383. De kennisgeving zal door het WTO-secretariaat openbaar gemaakt worden op een pagina van de WTO-website die over het stelsel handelt. ^ [383]
384. Dit punt laat artikel 66, lid 1, van deze overeenkomst onverlet. ^ [384]
385. De licentiehouder kan hiervoor zijn eigen website gebruiken, of, met de hulp van het WTO-secretariaat, de pagina van de WTO-website die over het stelsel handelt. ^ [385]
386. Deze kennisgeving moet niet door een WTO-orgaan worden goedgekeurd om van het stelsel gebruik te kunnen maken. ^ [386]
387. De kennisgeving zal door het WTO-secretariaat openbaar gemaakt worden op een pagina van de WTO-website die over het stelsel handelt. ^ [387]
388. Het DSB wordt geacht bij consensus een beslissing te hebben genomen aangaande een kwestie die aan het orgaan is voorgelegd indien geen enkel Lid dat op desbetreffende bijeenkomst aanwezig is, formeel bezwaar maakt tegen de voorgestelde beslissing. ^ [388]
389. Dit lid geldt ook voor geschillen ten aanzien waarvan de rapporten van de panels niet zijn aangenomen of niet volledig ten uitvoer zijn gelegd. ^ [389]
390. Wanneer de bepalingen van een andere vermelde overeenkomst betreffende maatregelen die door regionale of plaatselijke overheden of autoriteiten op het grondgebied van een Lid worden genomen, afwijken van de bepalingen van dit lid, hebben de bepalingen van die andere vermelde overeenkomst voorrang. ^ [390]
391. De desbetreffende bepalingen inzake overleg in de vermelde overeenkomsten zijn de volgende:Overeenkomst inzake de landbouw, artikel 19; Overeenkomst inzake de toepassing van sanitaire en fytosanitaire maatregelen, artikel 11, eerste lid; Overeenkomst inzake textiel- en kledingprodukten, artikel 8, vierde lid; Overeenkomst inzake technische handelsbelemmeringen, artikel 14, eerste lid; Overeenkomst inzake met de handel verband houdende investeringsmaatregelen, artikel 8; Overeenkomst inzake de toepassing van artikel VI van de GATT-Overeenkomst van 1994, artikel 17, tweede lid; Overeenkomst inzake de toepassing van artikel VII van de GATT-Overeenkomst van 1994, artikel 19, tweede lid; Overeenkomst inzake inspectie vóór verzending, artikel 7; Overeenkomst inzake de oorsprongsregels, artikel 7; Overeenkomst inzake procedures op het gebied van invoervergunningen, artikel 6; Overeenkomst inzake subsidies en compenserende maatregelen, artikel 30; Overeenkomst inzake vrijwaringsmaatregelen, artikel 14; Overeenkomst inzake de handelsaspecten van de intellectuele eigendom, artikel 64, eerste lid, en overeenkomstige bepalingen inzake overleg in Plurilaterale Handelsovereenkomsten die zijn vastgesteld door de bevoegde organen van elke overeenkomst en ter kennis van het DSB zijn gebracht. ^ [391]
392. Indien de klager daarom verzoekt, wordt hiertoe binnen vijftien dagen na het verzoek een bijeenkomst van het DSB belegd, mits de bijeenkomst ten minste tien dagen van tevoren wordt aangekondigd. ^ [392]
393. Ingeval douane-unies of gemeenschappelijke markten partij bij het geschil zijn, geldt deze bepaling voor de staatsburgers van alle lidstaten van de douane-unie of gemeenschappelijke markt. ^ [393]
394. Indien binnen deze termijn geen bijeenkomst van het DSB is gepland op een tijdstip waarmee kan worden voldaan aan de vereisten van artikel 16, eerste en vierde lid, dient hiertoe een bijeenkomst van het DSB te worden belegd. ^ [394]
395. Indien binnen deze termijn geen bijeenkomst van het DSB is gepland, dient hiertoe een bijeenkomst van het DSB te worden belegd. ^ [395]
396. Het „betrokken Lid” is de partij bij het geschil waaraan de aanbevelingen van het panel of de Beroepsinstantie zijn gericht. ^ [396]
397. Wat betreft aanbevelingen in gevallen waarin geen sprake is van schending van de GATT-Overeenkomst van 1994 of van andere vermelde overeenkomsten, zie artikel 26. ^ [397]
398. Indien gedurende deze termijn geen bijeenkomst van het DSB is gepland, dient hiertoe een bijeenkomst van het DSB te worden belegd. ^ [398]
399. Indien de partijen niet binnen tien dagen nadat de kwestie voor arbitrage is voorgelegd, overeenstemming kunnen bereiken over een arbiter, wordt de arbiter binnen tien dagen benoemd door de Directeur-generaal, na raadpleging van de partijen. ^ [399]
400. De term „arbiter” moet zodanig worden geïnterpreteerd, dat hieronder zowel een persoon als een groep kan worden verstaan. ^ [400]
401. De lijst in document MTN.GNS/W/120 bevat elf sectoren.De term „arbiter” moet zodanig worden geïnterpreteerd, dat hieronder zowel een persoon als een groep kan worden verstaan. ^ [401]
402. De term „arbiter” moet zodanig worden geïnterpreteerd, dat hieronder zowel een persoon als een groep kan worden verstaan, alsook de leden van het oorspronkelijke pannel wanneer deze als arbiter optreden. ^ [402]
403. Wanneer de bepalingen van een vermelde overeenkomst betreffende maatregelen genomen door regionale of plaatstelijke overheden of autoriteiten op het grondgebied van een Lid bepalingen bevatten die afwijken van de bepalingen van dit lid, hebben de bepalingen van die vermelde overeenkomst voorrang. ^ [403]
404. Van de op 12 april 1979 te Genève tot stand gekomen Overeenkomst betreffende handel in burgerluchtvaartuigen zijn de Engelse en de Franse tekst geplaatst in Trb. 1980, 20 en de vertaling in het Nederlands in Trb. 1980, 128; zie ook, laatstelijk, Trb. 1988, 59. Voor het op 17 januari 1983 te Genève tot stand gekomen Eerste Certificaat van wijziging en verbetering van de Bijlage bij de Overeenkomst zie rubriek J van Trb. 1983, 129. Van het op 2 december 1986 te Genève tot stand gekomen Protocol van 1986 tot wijziging van de Bijlage bij de Overeenkomst zijn de Engelse en de Franse tekst geplaatst in Trb. 1988, 60. ^ [404]
405. Deze lijst brengt geen wijzigingen aan in de bestaande kennisgevingsvoorschriften in de Multilaterale handelsovereenkomsten in bijlage 1A bij de WTO-Overeenkomst of, in voorkomend geval, de Plurilaterale handelsovereenkomsten in bijlage 4 bij de WTO-Overeenkomst. ^ [405]