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X. Article 9 back to top
A. Text of Article 9
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.
B. Text of Interpretative Note to
Article 9
Note to Article 9
For the purposes of
Article 9, “time of importation” may include the time of entry for
customs purposes.
C. Interpretation and Application of Article 9
No jurisprudence or decision of a competent WTO
body.
XI. Article 10
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A. Text of Article 10
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.
B. Interpretation and Application of Article 10
No jurisprudence or decision of a competent WTO
body.
XII. Article 11
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A. Text of Article 11
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.
B. Text of Interpretative Note to Article 11
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.
C. Interpretation and Application of Article 11
No jurisprudence or decision of a competent WTO
body.
XIII. Article 12 back to top
A. Text of Article 12
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.
B. Interpretation and Application of
Article 12
No jurisprudence or decision of a competent WTO
body.
XIV. Article 13 back to top
A. Text of Article 13
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.
B. Interpretation and Application of Article 13
12. In US
— Certain EC Products, the Panel examined whether the increased
bonding requirements imposed by the United States on certain products
imported from the European Communities were consistent with, among
others, Article II of GATT 1994 and certain provisions in the DSU.
The United States put forward Article 13 of the Customs Valuation
Agreement as a defence, arguing “that the non-compliance of the
European Communities [with a certain DSB recommendation] created a risk,
which allowed the United States to have concerns over its ability to
collect the full amount of duties which might be due”(8), and that
the increased bonding requirements were consistent with that Article.
The Panel stated as follows:
“In the present dispute the
United States is not claiming that, as of 3 March, it required
additional guarantees because the customs value of the EC listed imports
had increased or changed on 3 March 1999. In the present dispute, there
is no disagreement between the parties on the customs value of the EC
listed imports. Article 13 of the Customs Valuation Agreement allows for
a guarantee system when there is uncertainty regarding the customs value
of the imported products, but is not concerned with the level of tariff
obligations as such. Article 13 of the Customs Valuation Agreement does
not authorise changes in the applicable tariff levels between the moment
imports arrive at a US port of entry and a later date once imports have
entered the US market. As we discuss further below, the applicable
tariff (the applicable WTO obligation, the applicable law for that
purpose), must be the one in force on the day of importation, the day
the tariff is applied. In other words, Article 13 of the Customs
Valuation Agreement is of no relevance to the present dispute. We
reject, therefore, this US defense.”(9)
XV. Article 14
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A. Text of Article 14
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.
B. Interpretation and Application of Article 14
13. The text of
Annex I is
contained in Sections II.B, III.B,
IV.B, VI.B,
VII.B, VIII.B,
IX.B, X.B,
XII.B, and XXVI.A. With respect to the interpretation and application of
Annex I, see the respective sections referring to paragraphs of Annex
I.
14. With respect to Annex II,
see Section XXVII.A below.
15. With respect to Annex III,
Section XXVIII.A below.
XVI. Article 15
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A. Text of Article 15
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 1(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.
B. Text of Interpretative Note to Article 15
Note to Article 15: Paragraph 4
For the purposes of Article
15, the term “persons” includes a legal person, where appropriate.
Paragraph 4(e)
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.
C. Interpretation and Application of Article 15
No jurisprudence or decision
of a competent WTO body.
XVII. Article 16
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A. Text of Article 16
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.
B. Interpretation and Application of
Article 16
No jurisprudence or decision
of a competent WTO body.
XVIII. Article 17
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A. Text of Article 17
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.
B. Interpretation and Application of Article 17
16. Pursuant to the
Ministerial mandate at Marrakesh, at its meeting of 12 May 1995, the
Committee on Customs Valuation adopted the following decision: (10)
“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.”
17. Further to this Decision,
at the Doha Ministerial Conference Members decided that the Agreement on
the Implementation of Article VII of GATT 1994:
“[U]nderlines the importance
of strengthening cooperation between the customs administrations of
Members in the prevention of customs fraud. In this regard, it is agreed
that, further to the 1994 Ministerial Decision Regarding Cases Where
Customs Administrations have Reasons to Doubt the Truth or Accuracy of
the Declared Value, when the customs administration of an importing
Member has reasonable grounds to doubt the truth of accuracy of the
declared value, it may seek assistance from the customs administration
of an exporting Member shall offer cooperation and assistance,
consistent with its domestic laws and procedures, including furnishing
information on the export value of the good concerned. Any information
provided in this context shall be treated in accordance with Article 10
of the Customs Valuation Agreement. Furthermore, recognizing the
legitimate concerns expressed by the customs administrations of several
importing Members on the accuracy of the declared value, the Committee
on customs Valuation is directed to identify and assess practical means
to address such concerns, including the exchange of information on
export values and to report to the General Council by the end of 2002 at
the latest.”(11)
18. At its meeting on 10–12
and 20 December 2002, the General Council took note of the report of the
Customs Valuation Committee(12), and authorized the Committee to continue
its work under the existing mandate(13) and to report to the General
Council when it had completed this work.
PART II: Administration, Consultations and
Dispute Settlement
XIX. Article 18
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A. Text of Article 18
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.
B. Interpretation and Application of Article 18
1. Article 18.1
(a) Observer status
19. With respect to observer
status in meetings of the Committee on Customs Valuation, see Chapter on
the WTO Agreement, Section V.B.6.(14)
20. At its meeting of 12 May
1995, the Committee on Customs Valuation agreed on observership in its
meetings.(15)
(b) Rules of procedure
21. On 1 December 1995, the
Council for Trade in Goods approved the Rules of Procedure for meetings
of the Committee on Customs Valuation adopted by the Committee on
Customs Valuation.(16)
22. The Committee on Customs
Valuation reports to the Council for Trade in Goods on an annual basis.(17)
(c) Monitoring of the
Agreement on Preshipment Inspection
23. At its meeting of 15 June
1999, the General Council adopted the recommendation of the Working
Party on Preshipment Inspection(18) that the future monitoring of the
Agreement on Preshipment Inspection should be undertaken initially by
the Committee on Customs Valuation, and that Preshipment Inspection
should be a standing item on its agenda.
XX. Article 19
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A. Text of Article 19
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.
B. Interpretation and Application of Article 19
24. The following table lists
the dispute in which the panel and Appellate Body reports have been
adopted where the provisions of the Customs Valuation Agreement were
invoked:
|
|
Case Name |
Case Number |
Invoked Articles |
|
1 |
US — Certain EC
Products |
WT/DS165 |
Article 13 |
Part III: Special And Differential Treatment
XXI. Article 20
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A. Text of Article 20
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.
B. Interpretation and Application of Article 20
1. General
25. At its meeting of 31
January 1995, the General Council took a decision on the Continued
Application under the WTO Customs Valuation Agreement of Invocations of
Provisions for Developing Countries for Delayed Application and
Reservations under the Customs Valuation Agreement 1979.(19)
26. At its meeting of 12 May
1995, the Committee on Customs Valuation agreed to continue the practice
established by the Tokyo Round Committee on Information on Technical
Assistance, in order to ensure transparency on technical assistance
activities. (20)
2. Article 20.1
27. Pursuant to
paragraph 1 of
Article 20, 58 developing country Members, which were not party to the
1979 Agreement on Implementation of Article VII of the
GATT, requested a
five-year delay of the application of the WTO Customs Valuation
Agreement. This five-year delay was computed from the date of entry into
force of the WTO Agreement for each of the Members concerned.(21) however,
22 Members requested a further extension of this five-year period
pursuant to paragraph 1 of Annex III. The length of this additional
extension varied by Member.(22)
28. At its meeting of 15
December 2000, the General Council adopted a decision concerning
implementation-related issues and concerns in respect of several WTO
Agreements.(23) With respect to the
Customs Valuation Agreement, the
General Council decided:
“Noting that the process of
examination and approval, in the Customs Valuation Committee, of
individual requests from Members for extension of the five-year delay
period in Article 20.1 is proceeding well, the General Council
encourages the Committee to continue this work.”(24)
3. Article 20.2
29. Pursuant to
paragraph 2 of
Article 20, 51 developing country Members delayed application of
paragraph 2(b)(ii) of Article 1 and of Article 6 for three years from
the date of entry into force of the WTO Agreement for each of them.(25)
4. Article 20.3
30. At its meeting on 24 July
2001 the Committee agreed on resuming its work on technical assistance
in response to a proposal from the European Communities and adopted its
work programme on technical assistance(26). On 26 February 2002, the
Committee decided to start its work programme with a seminar on
technical assistance(27).
5. Annex III
31. The special and
differential treatment for developing countries in respect of the
application of Customs Valuation Agreement is also developed in Annex
III. See Section XXVII below.
Part IV: Final Provisions
XXII. Article 21
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A. Text of Article 21
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.
B. Interpretation and Application of Article 21
32. At its meeting on 12 May
1995, the Committee on Customs Valuation adopted the decisions of the
Tokyo Round Committee on Customs Valuation on reservations.(28)
XXIII. Article 22
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A. Text of Article 22
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.
B. Interpretation and Application of Article 22
1. General
(a) Notification
33. At its meeting on 12 May
1995, the Committee on Customs Valuation agreed to adopt for all WTO
Members the procedures regarding notification and circulation of
national legislation that had been in use by the Tokyo Round Committee
on Customs Valuation. (29)
(b) Checklist of Issues
34. As the basis of an initial
examination of national legislation, the Committee on Customs Valuation
agreed to adopt the checklist of issues elaborated by the Tokyo Round
Committee on Customs Valuation.(30) It also decided that in the cases of
Members who were Tokyo Round signatories and whose legislation had
already been examined, a communication from those Members could be sent
to the Secretariat indicating that their responses to the Checklist of
Issues remained valid under the WTO Customs Valuation Agreement.(31)
XXIV. Article 23
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A. Text of Article 23
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(32).
B. Interpretation and Application of Article 23
No jurisprudence or decision
of a competent WTO body.
XXV. Article 24
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A. Text of Article 24
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.
B. Interpretation and Application of Article 24
No jurisprudence or decision
of a competent WTO body.
XXVI. Annex I
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A. Text of Annex I
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 1(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.
…
B. Interpretation and Application of Annex I
35. See Sections II.B,
III.B, IV.B,
VI.B, VII.B,
VIII.B, IX.B,
X.B,
XII.B, and XVI.B which contain the
respective parts of Annex I.
XXVII. Annex II
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A. Text of Annex II
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. 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.
B. Interpretation and Application of Annex
II
No jurisprudence or decision
of a competent WTO body.
1. Reference to GATT practice
36. With respect to the
practice developed under the GATT 1947.
XXVIII. Annex III
back to top
A. Text of Annex III
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.
B. Interpretation and Application of Annex III
1. Paragraph 1
37. With respect to the
extension of the five-year delay in the application of the Customs
Valuation Agreement under paragraph 1 of Annex III, see
paragraph 27 above.
2. Paragraph 2
38. Pursuant to the
Ministerial Decision at Marrakesh, at its meeting of 12 May 1995, the
Committee on Customs Valuation adopted the following decision: (33)
“Decision on Texts relating
to Minimum Values and Imports by Sole Agents, Sole Distributors and
Solve 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.”
39. Pursuant to
paragraph 2 of Annex III, 38 Members made reservations regarding officially established
minimum values.(34) The establishment of minimum values allows developing
countries to apply the same minimum values to all identical products,
without the need to look for the value that the products would have in
the event of the application of the mandates contained in the present
Agreement. On 21 October 2004, only five Members maintained exceptions
in accordance with the terms of this paragraph.(35)
3. Paragraph 3
40. Pursuant to
paragraph 3 of
Annex III, at the time of the 2004 annual review meeting of the
implementation and operation of the Agreement on Customs Valuation, 53
Members maintained reservations concerning reversal of sequential order
of Articles 5 and 6.(36)
4. Paragraph 4
41. Pursuant to
paragraph 4 of
Annex III, at the time of the 2004 annual review meeting of the
implementation and operation of the Agreement on Customs Valuation, 50
Members maintained reservations concerning application of Article 5.2
whether or not the importer so requests.(37)
5. Paragraph 6
42. See
Interpretation and
Application of Article 17, paragraphs 16–17
above.
Footnotes:
8. Panel Report on US
— Certain EC
Products,
para. 6.75. back to text
9. Panel Report on US
— Certain EC
Products, para. 6.77. back to text
10. G/VAL/M/1, Section F. The text of the
decision can be found in G/VAL/1. back to text
11. WT/MIN(01)/17, paragraph 8.3. back to text
12. G/VAL/50. back to text
13. WT/GC/70, paragraph 1.i). back to text
14. In April 1997, the Committee on Customs
Valuation granted regular observer status to those organizations which
had observer status on an ad hoc basis, see G/VAL/M/5. back to text
15. G/VAL/M/1, Sections D and E. back to text
16. G/C/M/7. The text of the adopted rules of
procedure can be found in G/L/146. back to text
17. The reports are contained in documents
G/L/55, 121, 205, 323, 414, 488, 590, 654 and 718.
back to text
18. WT/GC/M/40/Add.3, section 5. The text of
the recommendation can be found in G/L/300, para. 23. back to text
19. WT/GC/M/1, section 11. The text of the
adopted decision can be found in WT/L/38. back to text
20. G/VAL/M/1, para. 80–81; see also
G/VAL/W/1, Section B.7. The text of the agreement can be found in
G/VAL/5, Section B.4. Its revisions can be found in G/VAL/8. back to text
21. These 58 developing Members which requested
a five-year extension were: Bahrain, Bangladesh, Benin, Bolivia, Brunei
Darussalam, Burkina Faso, Burundi, Cameroon, Central Africa Republic,
Chad, Chile, Colombia, Costa Rica, Côte d’Ivoire, Cuba, Djibouti,
Dominican Republic, Ecuador, Egypt, El Salvador, Gabon, Ghana,
Guatemala, Guyana, Haiti, Honduras, Indonesia, Israel, Jamaica, Kenya,
Kuwait, Madagascar, Malaysia, Mali, Maldives, Malta, Mauritania,
Mauritius, Morocco, Myanmar, Nicaragua, Nigeria, Pakistan, Paraguay,
Peru, Philippines, Senegal, Singapore, Sri Lanka, Thailand, Togo,
Tunisia, Uganda, United Arab Emirates, Uruguay, Venezuela, Zambia. On 25
April 2002 none of them maintained this special and differential
treatment provision, G/L/590 pf 5. See G/VAL/W/3, 13, 22, 29, 43, 77,
89, 108, 124, 136 and G/VAL/2/Rev.19. back to text
22. The following eight Members, for which the
five-year delay period expired before or on 1 January 2000, requested an
additional extension pursuant to paragraph 1 of Annex
III: (i) Bahrain
(requested three years (consultation pending) — G/VAL/W/57 and
Adds.1–4);
(ii) Côte d’Ivoire (requested five years, extension granted for 18
months (expired 01.07.01) — G/VAL/32); (iii) Kuwait (requested two
years, extension granted for one year (expired 01.01.01) — G/VAL/18);
(iv) Myanmar (requested five years, extension granted for two years
(expired on 01.01.02) — G/VAL/28); (v) Paraguay (requested two years,
extension granted for one year (expired 01.01.01) — G/VAL/17/Rev.1);
(vi) Senegal (requested five years, extension granted for six months
(expired 30.06.01) — G/VAL/39); (vii) Sri Lanka (requested one year,
extension granted for one year — G/VAL/23, requested second year
extension, granted for 10 months — G/VAL/41, requested third
extension, granted for 6 months to 30.04.02 — G/VAL/42, requested
fourth extension, granted for six months to 31.10.02 — G/L/46,
requested fifth extension, four months expired 28.02.03); and (viii)
Tanzania (extension granted for one year (expired 01.01.01) — G/VAL/19). Also, the following 14 Members, for which this delay period
expired during 2000 and 2001, requested extension: (i) Bolivia
(requested two years, extension granted for 15 months (expired 31.12.01)
— G/VAL/37); (ii) Burundi (requested two years, extension granted for
two years to 01.08.02 — G/VAL/38); (iii) Cameroon (requested six
months — G/VAL/W/80, G/C/W/245 and Add.1
— granted for six months
(expired 01.07.01) — WT/L/396); (iv) Dominican Republic (requested two
years, extension granted for 16 months (expired 01.07.01) — G/VAL/22);
(v) El Salvador (requested two years, extension granted for 16 months
(expired 07.09.01) — G/VAL/30); (vi) Egypt (requested three years,
extension granted for one year (expired 30.06.01) — G/VAL/31); (vii)
Guatemala (requested two years, extension granted for 16 months (expired
21.11.01) — G/VAL/33); (viii) Haiti (requested three years, extension
granted for two years to 30.01.03 — G/C/W/256 and Rev.1, was granted
by the General Council as Article IX — waiver — WT/L/439); (ix) Jamaica (requested
one year extension, extension granted for one year (expired 09.03.01)
— G/VAL/24); (x) Mauritania (requested three years, extension granted
for two years to 31.05.02— G/VAL/29); (xi) Maldives (requested two
years, extension granted for two years to 31.05.02— G/VAL/35); (xii)
Rwanda (requested three years — G/VAL/W/84); (xiii) Tunisia (requested
three years, extension granted for 18 months (expired 28.09.01) — G/VAL/27); and (xiv) United Arab Emirates (expired 01.01.04,, G/VAL/55).
On 21 October 2004, no Member had either requested an extension or
maintained an extension under Annex III, paragraph 1. back to text
23. WT/GC/M/62, para. 17. The text of the
decision can be found in WT/L/384. See also Chapter on WTO
Agreement,
refer to the text on Articles
IV:1, IV:2 and IX:1 of the
WTO on the powers of the General Council more generally. back to text
24. WT/L/384,
para. 4. back to text
25. Members requesting an extension were:
Bahrain, Bangladesh, Bolivia, Brunei Darussalam, Burkina Faso, Burundi,
Cameroon, Chile, Colombia, Costa Rica, Côte d’Ivoire, Djibouti,
Dominican Republic, Egypt, Ecuador, El Salvador, Gabon, Guatemala,
Guyana, Haiti, Honduras, Indonesia, Israel, Jamaica, Kenya, Kuwait,
Madagascar, Malaysia, Mali, Malta, Mauritania, Mexico, Morocco, Myanmar,
Nicaragua, Nigeria, Pakistan, Peru, Philippines, Senegal, Singapore, Sri
Lanka, Tanzania, Thailand, Togo, Tunisia, Turkey, United Arab Emirates,
Uruguay, Venezuela, Zambia. See G/VAL/W/3, 13, 22, 29, 43, 77, 89, 108,
124, and 136. back to text
26. G/VAL/M/21. The technical assistance
programme, which started in May 1997, was created with a view to
enhancing the capacity of developing countries to implement and to
administer the Agreement on Customs Valuation. It was a demand-driven
programme. The activities in the early years “focused on improving
awareness and understanding of the activities already carried out or
being carried out by international organizations and Members either
bilaterally or regionally”; G/VAL/W/70. The new phase of the programme
is oriented on promoting the coordination and cooperation between
providers and donors; G/VAL/W/82/Rev.1. back to text
27. The seminar was held in Geneva on 6–7
November 2002; G/VAL/47/Rev.2. back to text
28. G/VAL/M/1, paras. 75–76; see also
G/VAL/W/1, Section B.4. The text of the decisions can be found in
G/VAL/5, Section B.1. back to text
29. G/VAL/M/1, Section I; see also G/VAL/W/1,
Section B.5. The text of the decisions can be found in G/VAL/5, Section
B.2. back to text
30. G/VAL/M/1, Section I; see also
G/VAL/W/1,
Section B.6. The text of the decisions can be found in G/VAL/5, Section
B.3. back to text
31. G/VAL/M/1, paras. 36–38. back to text
32. See above footnote 17. back to text
33. G/VAL/M/1, Section F. The text of the
decision can be found also in G/VAL/1. back to text
34. Members requesting a reservation were:
Bahrain, Bangladesh, Burkina Faso, Chile, Colombia, Côte d’Ivoire,
Djibouti, Dominican Republic, Gabon, Guatemala, Guyana, Haiti,
Indonesia, Jamaica, Kenya, Madagascar, Maldives, Mali, Malaysia, Malta,
Mauritania, Morocco, Myanmar, Niger, Pakistan, Paraguay, Peru,
Philippines, Senegal, Singapore, Sri Lanka, Thailand, Togo, Tunisia,
Uganda, Uruguay, Venezuela, Zambia. See G/VAL/W/3, 13, 22, 29, 43, 77,
89 and 108. back to text
35. The five Members at issue were: El Salvador
(reservation granted as Article IX waiver in WT/L/476), Guatemala
(reservation granted in G/VAL/43), Pakistan (reservation requested under
Article IX waiver in G/C/W/246), Senegal (reservation granted under
Article IX waiver in WT/L/571), and Sri Lanka (reservation granted in
G/VAL/53). See also G/VAL/2/Rev.19. back to text
36. These Members were: Argentina, Bahrain,
Bangladesh, Benin Brazil, Brunei Darussalam, Burkina Faso, Cameroon,
Chile, Colombia, Costa Rica, Côte d’Ivoire, Djibouti, Dominican
Republic, Ecuador, Egypt, El Salvador, Gabon, Guatemala, Guyana, Haiti,
Honduras, India, Indonesia, Israel, Jamaica, Kenya, Madagascar,
Maldives, Malawi, Malaysia, Mali, Mexico, Morocco, Myanmar, Nicaragua,
Niger, Pakistan, Panama, Peru, Philippines, Senegal, Sri Lanka,
Thailand, Togo, Tunisia, Turkey, Uganda, United Arab Emirates, Uruguay,
Venezuela, Zambia, Zimbabwe. See G/VAL/W/136; and for previous years see
G/VAL/W/3, 13, 22, 29, 43, 77, 89, 108, and 124. back to text
37. These Members were: Argentina, Bahrain,
Bangladesh, Benin, Brazil, Brunei Darussalam, Burkina Faso, Cameroon,
Chile, Colombia, Costa Rica, Côte d’Ivoire, Djibouti, Dominican
Republic, Ecuador, Egypt, El Salvador, Gabon, Guatemala, Guyana, Haiti,
Honduras, India, Indonesia, Israel, Jamaica, Kenya, Madagascar,
Maldives, Malaysia, Mali, Mexico, Morocco, Myanmar, Nicaragua, Niger,
Nigeria, Pakistan, Peru, Philippines, Senegal, Sri Lanka, Thailand,
Togo, Tunisia, Turkey, Uruguay, Venezuela, Zambia, Zimbabwe. See G/VAL/W/136; and for previous years see
G/VAL/W/3,
13,
22,
29,
43,
77,
89,
108, and
124. back to text
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