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Europaudvalget 2001-02 (2. samling)
EUU Alm.del Bilag 681
Offentligt

Modtaget via elektronisk post. Der tages forbehold for evt. fejl

Europaudvalget (2. samling)

(Alm. del - bilag 681)

udenrigsministerråd

(Offentligt)

Medlemmerne af Folketingets Europaudvalg

og deres stedfortrædere

Bilag

Journalnummer

400.C.2-0

Kontor

EU-sekr.

7. maj 2002

Til underretning for Folketingets Europaudvalg vedlægges EU’s konceptpapir om handelslettelse, der er blevet

cirkuleret i WTO.

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World Trade

Organization

RESTRICTED

G/C/W/363

12 April 2002

(02-2082)

Council for Trade in Goods

Original: English

TRADE FACILITATION: ARTICLE X OF GATT ON THE PUBLICATION AND ADMINISTRATION OF

TRADE REGULATIONS

Communication from the European Communities

The following communication, dated 12 April 2002, has been received from the Permanent Mission of the European

Communities.

_______________

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Introduction

Transparency is a cornerstone of the multilateral system. Without transparency of trade rules and trade policy, other

fundamental principles of non-discrimination, proportionality, and special and differential treatment are of less practical use,

the value of Members' liberalisation commitments may remain theoretical, and Members' rights and obligations cannot be

properly exercised.

At a very practical level, traders need full knowledge of other Members' trade rules and practices in order to take advantage

of the trade benefits conferred by Members' WTO commitments. Complete, simple and easily accessible information is

especially important for SMEs to do business. Transparency also renders governments more accountable and in doing so

encourages more efficient and business-friendly design and administration of trade policy, while reducing trade conflicts.

Transpa rency and predictability in the application of trade regulations and procedures are, ultimately, an important aid to

development.

The Doha Declaration mandates Members to "review and, as appropriate, clarify and improve", by the fifth ministerial

conference, relevant aspects of GATT Article X on the Publication and Administration of Trade Regulations. This Article

has stood unchanged since the 1940's, but some of its concepts – concerning for example transparency, advance notice of

proposed trade rules, and right of appeal against administrative decisions have since been developed further in the national r

of some Members, in specific Marrakech Agreements on trade in goods, or in other international instruments. Modern

principles of sound and transparent public administration have, in other words, overtaken GATT Article X since it was first

negotiated.

The European Communities therefore suggest that, taking in account what has been found useful in other WTO Agreements

and elsewhere, the following improvements and clarifications to GATT Article X be considered, as part of a set of future

WTO commitments on trade facilitation. The EC has divided these improvements into four categories: publication and

availability of information; predictability of measures; appeal and due process measures; and Special and Differential

Treatment, inclu ding technical assistance.

The improvements proposed would also apply, where appropriate, to subfederal and local authorities who may have

responsibilities for the requirements and procedures in place affecting the movement of goods across borders.

A. Publication and Availability of Information

1. All

relevant laws, regulations, administrative guidelines,

specific decisions of or having general application,

information on customs and other agency processes, conditions and qualifications for different forms of customs

treatment, right of appeal procedures, fees and charges, port, airport and other entry-point procedures etc, relating to

border crossing

trade, should be published and made easily available via an officially designated medium, (including in

electronic form) and accessible to any interested party on a non-discriminatory basis. All amendments thereto should

be made public in the same way. Any fees charged for the provision of information to interested parties should be

commensurate with the cost of providing that service. The information to be made public could include also details of

customs’ and other government agencies’

management plans

relating to implementation of WTO commitments, or

of their relevant reform and modernisation prog uding for example targets, deadlines and benchmarks set in such

programmes.

Comments: this expands slightly the current scope of the information required to be published under GATT Article X to reflect the needs of

today’s trade. Experience demonstrates that information of this nature is necessary both to assist traders in day to day management of their

transactions, but also to encourage a co-operative and trustful relationship between the trading community and customs and other public

administrations. This is a priority need for SMEs, whose capacity t e can be greatly improved by access to such information.

2. Information made public could also include relevant

advance rulings,

notably binding rulings on classification and

origin, provided confidentiality and commercial secrecy is respected. Provision is needed whereby binding rulings can

be revoked at any time if made pursuant to false, incorrect or incomplete information, but otherwise not with

retroactive effect or without prior information of interested/affected parties.

Comment: the WTO Agreement on rules of origin requires Members to provide rulings on origin. Again, such information is of use to

traders.

3. Information should be presented in a

simple and accessible

manner and not designed to discriminate or make it

inaccessible or difficult for non-national operators to access.

Comment: this is recommended, inter alia by the WCO in respect of customs related information. We note further that provisions on use of

internationally agreed standards, data sets etc, and commitments to reduce and simplify official requirements to the very minimum will help

to achieve simplicity in information because there will be less information to provide and it will be in a more standard, familiar format. The

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EC will address this in a future communication. Legislation , regulations and administrative guidelines made generally available using new

technology will generally meet this standard.

4. Members could confirm their commitment only to take administrative actions, decisions or rulings affecting importers

or exporters where a

legal basis

to do so is established.

Comments: the purpose of this is in order to reduce the scope for arbitrary decision making on the part of the public authorities.

Enquiry points or trade desks

providing information on all the above should be established for use of governments and traders on a non-

discriminatory basis, and notified to the WTO secretariat.

Comments: this is a familiar provision in certain WTO Agreements such as TBT and SPS, but there is no provision in Article X for

enquiry points for general customs and other agency requirements relating to trade in goods. It is noted that in many cases such enquiry

points either already exist or are being provided via technical assistance programmes. Where they do not exist, the provision of such enquiry

points, and the assembly of all the necessary information on the laws and regulations of the Member in question, could be a priority for

technical assistance in the field of trade facilitation. In addition to ensuring the creation of information points by WTO-members, members

could consider the possibility of establishing, on the basis of the information notified by WTO members to the WTO, a publicly accessible

(via the Internet) WTO database of the countries requirements identified in this section. The EU has some experience in putting together

databases in relation to the import and expor t procedures that traders might encounter around the world and would be interested in

discussing further with WTO-members the scope for this possibility.

B. Predictability via Prior Consultation & Minimum Time Periods before entry into force etc

6. It would be useful to establish a provision for

consultation between interested parties,

both governments and

private sector, on proposed new legislation, regulations and other procedures affecting import and export

administration, before formal adoption or entry into force. The scope of any such provision should be further

discussed. This could be extended to include a requirement to establish a

regular consultative mechanism

with

representative private sector bodie s including importers, exporters, carriers, chambers of commerce, relating to new or

revised laws and regulations, and to major changes in operating procedures, particularly where these are in legislative

form.

Comments: the relevant WCO Kyoto Convention Standard could be indicated as a preferred means to implement this commitment. A

provision on these lines is useful both for administrations and traders in order to ensure sensible regulation, co-operation, mutual trust and

high levels of compliance on the part of trade.

Standard, and adequate time periods

to be provided for comment, and between adoption and entry into force of regulations, to allow trade to adjust.

Comments: this is already provided for e.g. in the context of the TBT and SPS Agreements, and there is no reason why the concept could

not be applied more widely to customs and other related import or export requirements.

8. Notice of proposed regulations etc on which comments invited could be accompanied by publication of the

reasoned

motivations for a proposed measure

in relation to the policy objectives sought, the availability of other, possibly less

trade restrictive measures etc. A commitment could be considered whereby the primary legislation would be reviewed,

and as necessary codified or consolidated at reasonable intervals in order to ensure it remains up to date and so as to

ensur e efficiency in the information process.

Comments: commitments along these lines are also found in specific WTO agreements. They will be made more operational if accompanied

by a requirement that regulations be proportionate to the objectives sought and that the objectives sought should be legitimate ones. The EC

will address these issues in a subsequent communication to the WTO.

C. Appeal Procedures and Due Process

9. There should be a

non discriminatory, legal right of appeal

against customs and other agency rulings and decisions,

initially to a higher authority within the same agency or another body, and subsequently to a separate judicial or

administrative body. Appeal procedures, and standard times and conditions for appeal should be made publicly

available. A standard time should be set for resolution of minor appeals at administrative level. Procedures for appeal

should be easily acces sible, including to SMEs, and costs should be reasonable and commensurate with costs in

providing for the appeals.

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Comments: this builds on existing provisions in GATT Article X. Future WTO commitments could specify that implementation of the

substance of the relevant provisions of the WCO Kyoto Convention (General Annex, Chapter 10 and accompanying Guidelines) would be

deemed to fulfil these requirements, as far as customs rulings are concerned.

10. Appeal procedures should also be available in respect of decisions relating to goods in transit and exports, as well as

imports. Companies should have right to be represented at all stages of appeal procedure by an agent or legal

representative.

Comments: transit operators’ and exporters’ interests are not necessarily guaranteed by national treatment provisions, which is why the right

of appeal should apply also to them. SMEs need the facility of being represented by an agent since small companies cannot always spare their

managers to be absent to pursue appeals/complaints - a point well made by the ICC in its Customs Guidelines.

11. Goods should normally be released, and the possibility be available in given circumstances for duty payment to be left

in abeyance, pending outcome of appeal, subject, where required by national legislation, to the payment of a surety,

guarantee or other form of bond.

Comments: this would act as a disincentive to drawn out appeal procedures, and ensure that trade is not unduly affected pending the outcome

of appeal procedures. The Customs Valuation Agreement requires all WTO Members to make provision for goods release in the event of

delays in the determination of customs value, so it should be feasible to extend this to other aspects of agency determinations. There could not

however be an unfettered right of release of goods pending the outcome of the appeal, since this would unduly reduce the enforcement ability of

customs or other agencies.

D. Special and Differential Treatment, including technical assistance

12. The above proposals, however desirable in themselves, may in some cases justify the provision of technical assistance

for some developing countries, who lack resources to implement them, or who may need time to introduce changes.

For these reasons it is important that Members provide

Technical Assistance

to assist developing countries,

especially least developed, to establish requisite information platforms, particularly in electronic format, in order to

fulfil transparency req uirements. Where necessary, assistance may also be provided to support the implementation of

other commitments that Members may enter into based on the above proposals. The possible scope and nature of,

special and differential treatment provisions for, in particular, the least developed countries, also needs further

discussion.

Comments: as noted in proposal 5 on enquiry points, measures to improve transparency and predictability have been a traditional focus of

trade related technical assistance, since they are relatively straightforward to implement yet constitute the basis for other improvements in

Members' trade regimes. Assistance to transparency is often provided through the creation of databases and enquiry points for traders, in

particular SMEs. Many Members already operate specific systems, such as trade points, or investment desks, which demonstrate the

feasibility of introducing such facilities. The EC regards this as a useful component of trade related assistance in the short to medium term

and will endeavour to address this in its bilateral technical assistance programmes.

More generally, the issue of how to integrate the technical assistance/capacity building dimension in the final result of

the process on trade facilitation needs to be considered in depth, taking into account the sum of trade facilitation

commitments that WTO members will take on. The EC has already presented its views on this in previous submissions

to the Council on Trade in goods, as well as in its presentation to the May 2001 Workshop on Technical Assistance and

will revi ew these ideas and present a further submission in due course.

__________